R v Crothers
[2010] QCA 334
•30 November 2010
SUPREME COURT OF QUEENSLAND
CITATION:
R v Crothers & Ors [2010] QCA 334
PARTIES:
R
v
MICHAEL CROTHERS
DAVID ROBERT HEATHCOTE
YVONNE JEAN HEATHCOTE
COLIN ROBERT ROGERS
(appellants)FILE NO/S:
CA No 262 of 2009
CA No 265 of 2009
CA No 274 of 2009
CA No 277 of 2009
SC No 337 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
30 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
22 and 23 July 2010
JUDGES:
Margaret McMurdo P, Chesterman JA and Douglas J
Judgment of the CourtORDERS:
1. In respect of each appellant, the appeal against conviction is dismissed.
2. In respect of the appellant Crothers, the application to adduce further evidence is refused.
3. In respect of the appellant Rogers, the application to adduce further evidence is refused. The application for leave to appeal against sentence is refused.
4. In respect of the appellant Yvonne Heathcote, the application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where appellants were jointly tried and convicted of the murder of John Hoghes – where there was evidence that appellant Yvonne Heathcote was the instigator of a plan to seriously injure Matthew Hoghes, the victim's son – where appellants David Heathcote, Crothers and Rogers drove to the residence of Matthew Hoghes – where John Hoghes arrived to defend his son – where Crothers shot and killed John Hoghes – where appellant David Heathcote then seriously assaulted Matthew Hoghes – where appellants David Heathcote, Crothers and Rogers committed aggravated burglaries at the residences of Matthew Hoghes and Michelle Hoghes, the victim's wife – where appellants Yvonne Heathcote, David Heathcote and Rogers were convicted on the basis that they had formed a common intention to seriously injure Matthew Hoghes and the murder of John Hoghes was a probable consequence of that alleged purpose – whether there was sufficient evidence to support the murder convictions – whether the verdicts were unreasonable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where there was evidence of a telephone conversation between appellant Yvonne Heathcote and little John Hoghes in which she told him that appellant David Heathcote and Nathan Wells were coming to assault Matthew Hoghes – where it was intended Matthew Hoghes would be assaulted with a metal club – where victim bystander was killed with a gun – whether the jury had to be satisfied of the telephone conversation beyond reasonable doubt – whether judge misdirected the jury in describing the conversation as direct evidence of appellant Yvonne Heathcote's implication in the plan to seriously injure Matthew Hoghes – whether trial judge adequately instructed jury on the application of s 8 to the facts – whether trial judge erred in not directing the jury to decide the details of any common intention – whether trial judge erred in directing the jury that they need not be satisfied that it was objectively likely the deceased would be murdered with a gun
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where a jury member brought a map into the jury room – where similar maps were already exhibited – where appellants Rogers, Yvonne Heathcote and David Heathcote made applications for separate trials on the basis that appellant Crothers' self-representation would prejudice the jury – where evidence that appellant Crothers had been in prison was put before the jury – where two witnesses did not give evidence foreshadowed in prosecution's opening – where trial judge instructed the jury on all these issues – whether trial judge erred in declining to declare a mistrial – whether trial judge erred in refusing the applications for separate trials
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where appellant Crothers argued he had shot Frank John Hoghes in self-defence – where trial judge summed up in respect of s 271(2) and s 272(1) Criminal Code – whether trial judge misdirected the jury on self-defence – whether the jury's verdict was unsafe in concluding that the prosecution had negated self-defence
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where appellant Crothers terminated the services of his in-house lawyer from Legal Aid Queensland (LAQ) and his new barrister prior to the trial – where Crothers repeatedly declined opportunities to be legally represented by LAQ at trial because he wanted to be represented by Douglas Law – where appellant Rogers dismissed his lawyers on the twelfth day of the trial – where Rogers did not request an adjournment to obtain different representation – where Crothers experienced great difficulty in dealing with the evidentiary material and in conducting his defence – where trial judge ensured all defendants had a fair trial – where Crothers and Rogers seek to adduce further evidence – whether Crothers' and Rogers' lack of legal representation amounted to a miscarriage of justice – whether applications to adduce further evidence should be allowed
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – RECORDS OF INTERVIEW – OTHER MATTERS – where appellant Rogers' formal record of interview with police was put into evidence – where interview was incriminating but supported the contention that appellant Crothers had acted in self-defence – where Rogers instructed his lawyers not to challenge the evidence's admissibility – whether trial judge should have conducted a voir dire on the admissibility of the interview after Rogers dismissed his lawyers
Criminal Code 1899 (Qld), s 7(1)(b), s 7(1)(c), s 8, s 268, s 271, s 271(2), s 272, s 272(1), s 302(1)(a), s 567, s 568, s 668E(1)
Evidence Act 1977 (Qld), s 15(2)Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, cited
Brennan v The King (1936) 55 CLR 253; [1936] HCA 24, cited
Darkan v R (2006) 227 CLR 373; [2006] HCA 34, cited
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, applied
Domican (No 3) (1990) 46 A Crim R 428, cited
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
Folbigg v The Queen [2007] NSWCCA 371, cited
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
R v Barlow (1997) 188 CLR 1; [1997] HCA 19, applied
R v Beck [1990] 1 Qd R 30; (1990) 43 A Crim R 135, applied
R v Condren; ex parte Attorney-General [1991] 1 Qd R 574; (1991) A Crim R 79, cited
R v Daley; ex parte A-G (Qld)[2005] QCA 162, cited
R v Dean [2009] QCA 309, distinguished
R v East (2008) 190 A Crim R 225; [2008] QCA 144, distinguished
R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377, cited
R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406, considered
R v Katsidis; ex parte A-G (Qld)[2005] QCA 229, cited
R v Main; ex parte A-G (Qld) (1999) 105 A Crim R 412; [1999] QCA 148, cited
R v Ritchie [1998] QCA 188, cited
R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37, considered
R v Small (1994) 33 NSWLR 575; (1994) 72 A Crim R 462, distinguished
R v Walbank [1996] 1 Qd R 78; [1995] QCA 149, distinguished
R v Wilmot (2006) 165 A Crim R 14; [2006] QCA 91, applied
R v Young (No 2) [1969] Qd R 566, cited
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, applied
Stuart v The Queen (1974) 134 CLR 426; [1974] HCA 54, cited
The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1, followed
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, citedCOUNSEL:
In CA No 262 of 2009
K Prskalo for the appellant
T A Fuller, with P J McCarthy, for the respondentIn CA No 265 of 2009
S J Keim SC for the appellant
T A Fuller, with P J McCarthy, for the respondent
In CA No 274 of 2009
D MacKenzie for the appellant
T A Fuller, with P J McCarthy, for the respondentIn CA No 277 of 2009
P E Smith for the appellant
T A Fuller, with P J McCarthy, for the respondentSOLICITORS:
In CA No 262 of 2009
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
In CA No 265 of 2009
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
In CA No 274 of 2009
Douglas Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent
In CA No 277 of 2009
Fisher Dore for the appellant
Director of Public Prosecutions (Queensland) for the respondent
TABLE OF CONTENTS
THE CONVICTIONS8
OUTLINE OF THE OFFENCES
YVONNE HEATHCOTE – APPEAL NO 262/09
Grounds of Appeal 1 and 2: The verdict was unreasonable having regard to the evidence and the evidence was insufficient to support the murder conviction
Ground of Appeal 3: The trial judge's directions concerning the application of section 8
(a) The trial judge's directions concerning the telephone conversation between Yvonne Heathcote and little John Hoghes
(b) The trial judge's instructions concerning the application of section 8 to the facts
Ground of Appeal 4: The trial judge's instructions on self-defence
Ground of Appeal 5: The trial miscarried because of an accumulation of irregularities
(a) Independent jury investigations
(b) The trial judge's refusal to order separate trials
(c) Evidence of Crothers' criminal history was put before the jury
(d) Two witnesses did not come up to proof
(e) Conclusion on Ground of Appeal 5
DAVID HEATHCOTE – APPEAL NO 265/09
Grounds of Appeal 1 and 3: The verdict was unreasonable having regard to the evidence and the evidence was insufficient to support the murder conviction
Ground of Appeal 4: The trial judge's summing up on section 8
The trial miscarried because of an accumulation of irregularities
MICHAEL CROTHERS – APPEAL NO 274/09
Grounds of Appeal 1 and 3: Self-defence
(a) The evidence relevant to self-defence
(b) The trial judge's directions on self-defence
(c) Criticism of the trial judge's directions on self-defence
(d) The jury's verdict was unsafe in concluding self-defence was negated by the prosecution
Grounds of Appeal 2 and 4: There was a miscarriage of justice because the appellant could not represent himself competently and the trial miscarried because of an accumulation of irregularities
(a) The trial miscarried because of an accumulation of irregularities
(b) Miscarriage of justice caused by Crothers' lack of legal representation at trial
(i)...... Crothers' application to adduce further evidence
(ii)..... Crothers' contentions
(iii).... Relevant aspects of the conduct of Crothers' trial
(iv).... Conclusion as to the grounds of appeal relating to Crothers' lack of legal representation
(v)..... Conclusion on Crothers' application to adduce further evidence
COLIN ROGERS – APPEAL NO 277/09
Grounds of Appeal (b) and (c): The trial judge's directions as to self-defence and section 8 and whether the verdict was unreasonable having regard to the evidence and the evidence was insufficient to support the murder conviction
Ground of Appeal (a): The trial miscarried because of an accumulation of irregularities
(a) Rogers' application to adduce further evidence
(b) Rogers' formal record of interview with police
(c) The trial judge did not conduct a voir dire concerning the admissibility of Rogers' formal record of interview
(d) The trial judge did not adjourn the trial for Rogers to seek legal advice after he dismissed his lawyers
(e) Conclusion on Rogers' application to adduce further evidence
APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE
ORDERS:
THE CONVICTIONS
[1] The appellants were tried jointly for the murder of John Hoghes at Tara on 3 May 2007. After a 28 day trial they were all convicted of the murder on 7 October 2009.
[2] The indictment contained other counts against each appellant.
[3] Crothers was found guilty of:
(i) entering the dwelling of Matthew Hoghes (the deceased's son) with intent to commit an indictable offence, at night, during which he used actual violence, while armed with an offensive weapon and a dangerous weapon, and in company;
(ii)unlawfully depriving,
(a)Matthew Hoghes;
(b)John Luke Hoghes;
(c)Michelle Wood;
of their personal liberty;
(iii)entering the dwelling of Michelle Wood with intent to commit an indictable offence at night, during which he threatened to use actual violence while armed with a dangerous weapon and in company;
(iv)unlawfully using Michelle Wood's motor vehicle to facilitate the commission of an indictable offence.
[4] David Heathcote was found guilty of entering the dwelling of Michelle Wood with intent to commit an indictable offence at night during which he threatened to use actual violence, while armed with a dangerous weapon, in company.
[5] When arraigned, on the first day of the trial, he had pleaded guilty to:
(i)entering the dwelling of Matthew Hoghes with intent to commit an indictable offence, at night, using actual violence while armed with an offensive weapon, and a dangerous weapon, while in company;
(ii) unlawfully depriving:
(a) Matthew Hoghes;
(b)John Luke Hoghes;
(c) Michelle Wood;
of their personal liberty.
(iii)unlawfully using Michelle Wood's motor vehicle to facilitate the commission of an indictable offence.
[6] Yvonne Heathcote was found guilty of entering the dwelling of Matthew Hoghes with intent to commit an indictable offence, at night, during which she used actual violence, while armed with a dangerous and an offensive weapon, in company.
[7] Rogers was found guilty of entering the dwelling of Michelle Wood with intent to commit an indictable offence at night during which he threatened to use actual violence, while armed with a dangerous weapon, and in company.
[8] When arraigned he had also pleaded guilty to:
(i)entering the dwelling of Matthew Hoghes with intent to commit an indictable offence at night, during which he used actual violence, while armed with a dangerous weapon and an offensive weapon, and in company;
(ii)unlawfully depriving:
(a)Matthew Hoghes;
(b)John Luke Hoghes;
(c)Michelle Wood;
of their personal liberty;
(iii)unlawfully using Michelle Wood's motor vehicle to facilitate the commission of an indictable offence.
[9] Each appellant was sentenced to life imprisonment for the murder.
Crothers was sentenced to:
(i) nine years' imprisonment, with a declaration that he had committed a serious violent offence, on each burglary;
(ii)three years' imprisonment on each count of unlawful deprivation of liberty;
(iii)three years' imprisonment for the unlawful use of the motor vehicle.
David Heathcote was sentenced to:
(i)eight years' imprisonment for the burglary of Matthew Hoghes' home, with a declaration that he had committed a serious violent offence;
(ii)two and a half years' imprisonment on each count of unlawful deprivation of liberty;
(iii)seven years' imprisonment, without a declaration, for the burglary of Michelle Wood's home,
(iv)two and a half years for the unlawful use of the motor vehicle.
The appellant Yvonne Heathcote was sentenced to five years' imprisonment for the burglary of Matthew Hoghes' dwelling.
Rogers was sentenced to:
(i)eight years' imprisonment for the burglary of Matthew Hoghes' dwelling with a declaration that he had committed a serious violent offence;
(ii)two and a half years' imprisonment on each count of deprivation of liberty;
(iii)nine years' imprisonment for the burglary of Michelle Wood's dwelling, with a declaration that he had committed a serious violent offence;
(iv)two and a half years' imprisonment for the unlawful use of the motor vehicle.
In the case of each appellant the sentences were to be served concurrently. The time each had served in pre-trial custody was declared to have been time served under the sentences.
All of the appellants have appealed against their convictions for murder. Yvonne Heathcote appeals as well against her conviction for aggravated burglary.
OUTLINE OF THE OFFENCES
The terrible events of 3 May 2007 at Tara which led to the death of John Hoghes and the commission of the other offences had their origin in an adolescent dispute between Matthew Hoghes and Sarah Heathcote. The former was the son of the murdered man. The latter was the daughter of the appellant Yvonne Heathcote, and the sister of the appellant David Heathcote who was, obviously, Yvonne Heathcote's son. The appellant Crothers was a friend and neighbour of Yvonne Heathcote. He lived in the same street in Gatton. Rogers lived in Crothers' house.
The deceased, John Hoghes, lived about 20 kilometres outside Tara, at 22 Males Drive. His sons Matthew and John (who was called "little John" to distinguish him from his father) lived on a nearby property, 16 Males Drive. The two houses were about a kilometre apart.
Matthew Hoghes at the time was 17. Little John was 16, as was Sarah Heathcote. David Heathcote was 21.
Not long before 3 May 2007 Sarah Heathcote and Matthew Hoghes had lived together at 16 Males Drive. Their relationship had become tempestuous. She was pregnant. He thought that the father may have been Nathan Wells, a young man who, as at 3 May 2007, was boarding with Yvonne Heathcote's family in Gatton. Nathan regarded Yvonne Heathcote as his step-mother and David Heathcote as a brother. By the time of trial he was Sarah's partner.
Matthew Hoghes and Sarah Heathcote had argued in the days prior to 3 May 2007. The upshot was that she left the house and returned home to her mother. During the course of the day, 3 May 2007, there were a number of acrimonious telephone calls between Matthew Hoghes, Sarah Heathcote and Yvonne Heathcote.
During the course of the telephone conversations Matthew Hoghes and Sarah Heathcote "had a big fight" as a result of which he said that he would put all her possessions and items of personal property which she had left behind at 16 Males Drive on the side of the road for collection. The house property was some distance back from the road. The arrangement was to leave the possessions outside the property, at the end of the driveway.
In one or other of the calls Matthew Hoghes abused both Sarah Heathcote and her mother, whom he called "a fat slut". In another conversation Yvonne Heathcote told little John Hoghes, that "they" were coming to collect the possessions and that David (Heathcote) and Nathan (Wells) were "going to beat (Matthew's) head in." Little John told his father of the threat.
Yvonne Heathcote reacted badly to Matthew Hoghes' insult. There was some evidence that the two had been on bad terms for some time, the origin of the ill-will apparently being Mrs Heathcote's insinuation that Nathan Wells was the father of Sarah's child. Following Matthew's affront Yvonne Heathcote "threw the phone" at David Heathcote and Nathan Wells and told them what Matthew Hoghes had called her. Shortly afterward David Heathcote spoke to Matthew Hoghes on the telephone though there is no evidence of what was said. A little later Yvonne Heathcote told her daughter that Michelle Wood, who was the dead man's partner, and de facto step-mother to Matthew Hoghes, had "been ringing … and abusing her."
Towards evening Yvonne Heathcote, David Heathcote, and another son Bradley, Nathan Wells and Sarah Heathcote left Gatton to drive to Tara to collect her possessions. Nathan Wells took a golf club with him in the car. They also took with them a small aluminium baseball bat, which may have been in the car when they all got in.
Yvonne Heathcote made a number of telephone calls to Crothers during the afternoon. Crothers knew the deceased, and had quarrelled with him in the past. As a result of a call made in the mid afternoon he returned home from Ipswich, where he had gone on an errand, his utility was unloaded, and Crothers drove with Rogers to Tara. Before leaving Rogers gave Crothers a double-barrelled 12-gauge shotgun which Crothers put into the utility. It was Crothers' gun but Rogers knew where it was kept. Rogers took some cartridges which he kept in his pocket during the journey. Crothers and Rogers were both aged in their late forties.
Yvonne Heathcote and her party stopped at Jondaryan to break their journey and enjoy a drink at the hotel. They arrived at about 6.15 pm. There they met Crothers and Rogers who arrived at about 6.30 pm. There was some evidence which suggests that Yvonne Heathcote's party was waiting for Crothers.
At Jondaryan David and Sarah Heathcote argued about her relationship with Matthew Hoghes. She told her brother that she wanted to re-establish it. He opposed the suggestion because of the denigrating language and attitude Matthew Hoghes had exhibited towards Yvonne Heathcote. He left the family group and joined Crothers and Rogers, driving off with them in the utility. After David Heathcote had left the group his sister and mother argued heatedly. Sarah Heathcote was reluctant to proceed to Tara and hid for a while from her family. Eventually she was found and the group drove off about half an hour after Crothers.
In the meantime, that group had gone to 16 Males Drive. They drove into the property, slowing to look at, but not stopping at, Sarah's belongings which had been left as Matthew Hoghes had indicated outside the property boundary. The time was just before 9.00 pm.
The house was occupied by Matthew and little John Hoghes. They saw the utility approach. Little John Hoghes rang his father's home. Michelle Wood answered the phone. She spoke to the deceased who left home at once and drove to his sons' house, about two minutes' drive away.
Meanwhile the utility had stopped outside the sons' house. Crothers got out and took the shotgun with him and Rogers handed him two cartridges which he loaded, though Rogers may have stayed in the vehicle. Matthew Hoghes and his brother jumped out of a back window of the house when they saw Crothers with the shotgun. They hid near a water tank at the side of the house. David Heathcote went into the house. The boys heard him express disappointment when he found it empty.
The deceased drove up and stopped his car about 15 metres from the utility. As he arrived Crothers was standing next to it holding the shotgun. David Heathcote came out of the house and stood on or near the front stairs. The deceased who was a large man, about six feet one inch in height, and a little over 108 kilograms in bulk, carried an iron bar about half a metre in length. He approached Crothers who told him to get back into his car and go away. The deceased refused and moved towards Crothers who shot him in the chest with one shot when the two men were a little under two meters apart. The deceased died shortly after.
None of the three appellants who were present at the homicide attempted to assist the deceased. They did not call police or ambulance services.
Matthew and little John Hoghes had gone into the house immediately after the shooting in order to telephone police. They ran past David Heathcote who was still at the front stairs. The call was made at 9.01 pm. David Heathcote and Crothers followed them in. Crothers pointed the shotgun at little John's head. David Heathcote smashed the telephone with an iron bar. Rogers entered the house with a set of handcuffs which he applied to the two brothers, restraining them together. David Heathcote then "started bashing" Matthew Hoghes with the bar. The evidence is not clear whether it was the same bar the deceased had held. Evidence admissible only against Rogers suggests it was an aluminium baseball bat.
Throughout the attack Crothers and Rogers stood and watched. Crothers kept the gun aimed at the brothers.
After striking Matthew Hoghes some 18 or 19 times with the bar about the legs, arms and shoulder, and punching him hard once to the face, David Heathcote used the weapon to damage or destroy items of property in the house. Crothers then told the two brothers to go outside, pick up their father's body and put it into the boot of his car. Matthew Hoghes fell when leaving the house because of the injuries to his legs. David Heathcote struck him again after he fell.
Matthew and little John Hoghes struggled to lift the body into the boot because they were handcuffed together and because of Matthew's injuries. Crothers told David Heathcote and Rogers to help. David Heathcote, at Crothers' direction, reversed the car adjacent to the deceased. The deceased's body was got into the boot.
Crothers told Rogers to find a shovel. He did so and gave it to the brothers who were told to cover over their father's blood with dirt. Matthew Hoghes was unable to perform the task because of his injuries. Little John did it. Crothers then told Rogers to get into the utility, which he did. Crothers told the brothers to get into their father's car. He still held the gun. They got in to the back seat and Crothers sat in the front passenger seat, still with the gun.
David Heathcote drove to the deceased's house at 22 Males Drive where Michelle Wood was at home with her three small children. Rogers followed behind in the utility. When they arrived Crothers told the brothers to stay in the car. They were still handcuffed together. He and perhaps David Heathcote went to the door. Crothers returned to the car. He, or David Heathcote, told Matthew and little John to go into the house. Rogers remained with the utility. The brothers went into the house and sat on a lounge. Michelle Wood also sat on the lounge. David Heathcote left and drove off in the deceased's car which he abandoned not far away. The body was still in the boot.
For about 10 minutes Crothers menaced Michelle Wood and Matthew and little John Hoghes with the shotgun. He said he was going to kill them because they were witnesses. Rogers then entered the house with an electronic device for listening to police radio broadcasts.
All together Rogers and Crothers were in Michelle Wood's house for about three hours. During that time Crothers said to her: "I'm very sorry. … I've killed your husband." He remarked of Matthew Hoghes that there was no point in shooting him as he "will be dead by morning." He told Matthew Hoghes "Don't forget (Sarah's name)."
During the burglary Ms Wood's telephone rang. The time was 10.52 pm. The caller was Yvonne Heathcote who said to Ms Wood "Surprise, surprise, Michelle". She asked to speak to Crothers.
Crothers directed Michelle Wood to make coffee for him and Rogers. He demanded she produce maps so they could plan their escape from Tara. He also directed her to clean their fingerprints from surfaces he had touched.
According to Matthew Hoghes' testimony, Rogers said that he thought the police had gone and urged the others to go. He unlocked his handcuffs from Matthew and little John Hoghes but tied their legs together with rope which he fetched from the utility. The three appellants left. Rogers untied Matthew and little John Hoghes before leaving.
In the meantime Yvonne Heathcote and her party, less David Heathcote, had left Jondaryan and arrived in Tara. Sarah Heathcote insisted upon being let off. It may be inferred that from what had been said she apprehended that her former partner was about to be assaulted and she did not want to be party to the assault or witness to the violence. She went to the home of Heidi Hoghes, the deceased's sister. She arrived at 9.27 pm. There she remained, hiding from her mother who came to the house later that night to collect her.
Yvonne Heathcote, Bradley Heathcote and Nathan Wells drove on to 16 Males Drive where they collected Sarah's possessions which had been left, as arranged, at the front. While they were there some police officers arrived, looking for 16 Males Drive in response to the 000 call little John Hoghes had made when his father was shot.
After abandoning the deceased's car David Heathcote spent the night walking across bush and farmland. He encountered a geologist working a nightshift at an oilwell and prevailed upon him to drive him back to Tara. Before the trip he used the geologist's telephone to make a call. At Tara David Heathcote went to the house of a woman known to him and his mother, Suzanne Richards. He told Ms Richards in the morning that he "ran through the paddocks" and that he had "give(n) (Matty) a touch up". Following telephone contact between Ms Richards and Yvonne Heathcote, Ms Richards drove David Heathcote to the weir at Chinchilla. He waited for his mother who came for him at about 8.00 am.
Yvonne Heathcote spent the night driving between Tara and Toowoomba looking for David Heathcote. On one occasion she encountered Crothers and Rogers in their utility at a service station in Dalby. She asked where David was but they said they did not know. She had got as far as Toowoomba on her way home when she received a telephone call, presumably from David or Ms Richards that he was still in Tara. Yvonne Heathcote then telephoned home where she spoke to Heidi Dammasch (who was Crothers' niece). The two women arranged for Ms Dammasch to drive to an agreed location in Bradley Heathcote's car. He and Nathan Wells would then drive home in that car. Ms Dammasch would accompany Yvonne Heathcote back to Tara to resume the search for David Heathcote. The arrangement was carried out.
Yvonne Heathcote drove to Chinchilla where she met David Heathcote at the weir. They then drove home via Kingaroy, a long detour designed to avoid police who by this time were aware of the homicide and were searching for those responsible. Yvonne Heathcote had David hide under a blanket in the back of the car. They were intercepted by police near their home.
Some time after their meeting with Yvonne Heathcote at Dalby, Crothers and Rogers drove to the township of Coominya where Crothers had friends. They later separated. Rogers was arrested that morning on the outskirts of Ipswich. Crothers went to Redcliffe where he hid in a caravan park until his arrest on 7 May.
YVONNE HEATHCOTE – APPEAL NO 262/09
The prosecution case against this appellant on both counts, murder and the aggravated burglary at 16 Males Drive, was put on the basis of s 8 of the Criminal Code. Particulars were given:
Count 1
David Heathcote, Yvonne Heathcote, and Colin Rogers
actively participated in a common unlawful purpose to seriously injure Matthew Hoghes and it was a probable consequence of that common unlawful purpose that John Hoghes would die from injuries inflicted with an intention to cause him death or grievous bodily harm.
Count 2
Michael Crothers, David Heathcote, Yvonne Heathcote and Colin Rogers
actively participated in a common unlawful purpose to seriously injure Matthew Hoghes and it was a probable consequence of that common unlawful purpose that the home of Matthew Hoghes would be entered, at night, in company, whilst armed, with actual violence being used and with the intention that Matthew Hoghes would be assaulted.
Section 8 of the Code provides:
"When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
The appellant was given leave to substitute for the grounds of appeal originally set out in the notice of appeal the following:
1.The verdict was unreasonable and cannot be supported by the evidence;
2.The trial judge erred in finding there was sufficient evidence upon which a jury, properly instructed, could convict;
3.Instructions to the jury on the application of s 8 of the Code were inadequate;
4.The instruction to the jury on the ground of self-defence was wrong;
5.The trial miscarried because of an accumulation of irregularities:
(a)a juror had engaged in making independent investigations;
(b)the conduct of the appellants Crothers and Rogers, who appeared for themselves at the trial, prejudiced the appellant's fair trial;
(c)the reception of inadmissible evidence that Crothers had been imprisoned prejudiced the appellant's fair trial;
(d)the Crown opening referred to matters which were not, in the end, the subject of evidence, resulting in prejudice that could not be cured by direction.
Whether Crothers' act of killing the deceased was authorised by s 271 and/or s 272 of the Code, "the self-defence" provision, the question raised by ground 4, is common to all of the appellants and will be dealt with in the consideration of Crothers' appeal. If Crothers' conduct in shooting the deceased came within the ambit of one of those sections then he was not guilty of murder, or manslaughter, and none of the other appellants could be guilty as parties to the offence under s 8.
Grounds of Appeal 1 and 2: The verdict was unreasonable having regard to the evidence and the evidence was insufficient to support the murder conviction
Grounds 1 and 2, that the verdict was unreasonable having regard to the evidence, and that the evidence was insufficient to support the appellant's murder conviction, while conceptually different, depend upon the same analysis of fact and can be dealt with together. The grounds have three elements:
(i)the evidence did not establish that Yvonne Heathcote had formed a common intention with others to prosecute the unlawful purpose of seriously injuring Matthew Hoghes; and
(ii)murder was not an offence of such a nature that its commission was a probable consequence of the purpose, if proved; and
(iii)burglary by persons in company, at night armed with an offensive and/or dangerous weapon, and the use of actual violence, was not an offence of such a nature that its commission was a probable consequence of the purpose, if proved.
Before considering the arguments it is necessary to set out some facts additional to those which were set out earlier. Those facts are:
(a)The frequency of telephone contact between Yvonne Heathcote and Crothers on the afternoon of 3 May 2007 into the morning of 4 May 2007 was very great indeed. She called him at 1.06 pm, 4.16 pm, 5.50 pm, 6.30 pm, 7.04 pm, 7.47 pm, 8.12 pm, 10.34 pm (and attempted to call him at 10.41 pm, 10.42 pm, 10.46 pm, 11.02 pm, 11.08 pm, 11.09 pm, 11.13 pm and 11.16 pm), 11.22 pm, 11.52 pm, 11.56 pm, 1.00 am, 6.16 am, 6.17 am and 6.35 am;
(b)Interspersed among the telephone calls between Yvonne Heathcote and the occupants of 16 Males Drive she also called the deceased, and spoke to him in angry and abusive terms;
(c)When at Jondaryan, apparently waiting for Crothers and Rogers to arrive, the party went into a Caltex roadhouse for food. The older woman in the group, who must have been Yvonne Heathcote, was heard to ask a younger man of David Heathcote's description whether he wanted something. He replied that he was not hungry but should have a meal in case "he was put in the lock-up";
(d)At Jondaryan Sarah Heathcote used a public pay telephone to ring the Hoghes' household at 16 Males Drive. Yvonne Heathcote also made two calls to the house, at 7.07 pm and 7.28 pm;
(e)When driving through Tara on their way to collect her possessions Sarah Heathcote insisted upon being let off. She refused to go on. Yvonne Heathcote told police that her daughter did not want to go with them because "there's going to be arguments". The plain inference, as mentioned in the outline, is that she knew full well the argument was to involve violence;
(f)When collecting Sarah's possessions at the entrance to 16 Males Drive, Yvonne Heathcote and the two young men with her were spoken to by police who were searching for the property in response to the 000 call made at 9.00 pm. They were unsure which was the correct house because of a lack of lighting and house identification. Constable Booker asked Yvonne Heathcote if the property they were at was 16 Males Drive. She said she did not know. She clearly did. She had gone to that address to collect her daughter's possessions. She had lived in Tara and been to the deceased's property for family functions. (The lie was not relied upon as an implied admission of guilt. It was, however, relevant to the reliability of Yvonne Heathcote's account given to police in her interview). Constable Booker told the group to move off as soon as they had packed the possessions because there had been a "firearm incident" in the vicinity;
(g)During the course of the evening when she was driving between Chinchilla and Tara looking for David Heathcote she rang Crothers and asked if he knew where David was. When she had ascertained David's whereabouts she again rang Crothers to say that she had found him;
(h)When David Heathcote joined his mother at about 8.00 am at the Chinchilla weir he told her that he had "given Matty a flogging";
(i)When interviewed by police Yvonne Heathcote gave an account of leaving her home to drive to Tara.
The first issue which the evidence must have been sufficient to establish is that Yvonne Heathcote had formed the common intention with others to seriously injure Matthew Hoghes, undeniably an unlawful purpose.
There was a great deal of evidence that there was such a common intention involving at the least Yvonne Heathcote, David Heathcote and Crothers. There is no other sensible view of the evidence that:
(a)Yvonne Heathcote was called "a fat slut" by Matthew Hoghes and was deeply offended by the insult;
(b)David Heathcote was offended by the insult to his mother;
(c)Yvonne Heathcote made a specific threat to little John Hoghes that David Heathcote and Nathan Wells were coming to Tara and would "beat (Matthew's) head in";
(d)Shortly afterwards Yvonne Heathcote with her son David and Nathan Wells (and Sarah) left in the family car to drive to Tara taking with them a metal bat and golf club. The jury could well have concluded that Yvonne Heathcote knew of the weapons' presence. Some evidence puts her sitting as a passenger adjacent to where the golf club was put for the journey. There is other evidence that puts her elsewhere but it cannot be thought that in the space of a journey of some hours of the five people in a family sedan no one mentioned the incongruous presence of a golf club;
(e)There was an extraordinary degree of telephone contact between Yvonne Heathcote and Crothers. At least three of the calls, those of 7.04 pm, 7.47 pm and 8.12 pm, were made at a time when David Heathcote was in Crothers' presence. Yvonne Heathcote knew that he had gone with Crothers and Rogers in the utility;
(f)Sarah Heathcote refused to accompany her mother to 16 Males Drive. She insisted upon being left at Tara because "there's going to be arguments" involving Matthew Hoghes for whom she still entertained feelings of tenderness, feelings which had led to a heated argument with her brother David who remained resentful at Matthew Hoghes' slurs against his family;
(g)At Jondaryan David Heathcote surmised to his mother that he might end the evening "in (the) lock-up";
(h)On arrival at 16 Males Drive, David Heathcote, Crothers and Rogers did not collect Sarah Heathcote's belongings but drove into the property. David Heathcote went straight into the house. Not deterred by the fatal shooting of John Hoghes he returned to the house with Crothers and Rogers. They overcame any resistance from Matthew and little John Hoghes by menacing them with a loaded shotgun. They were restrained with handcuffs and Matthew Hoghes was beaten repeatedly with a metal bar by David Heathcote;
(i)When leaving Michelle Wood's house Crothers said to Matthew Hoghes "don't forget (Sarah's name)";
(j)Yvonne Heathcote did not telephone Crothers between 8.12 pm and 10.34 pm. Shortly after 9.30 pm she was at 16 Males Drive and had been told by Constable Booker that there had been "a firearm incident". Between 10.41 pm on 3 May and 6.35 am on 4 May she rang or attempted to ring Crothers 15 times. In some of those calls she asked if he knew where David Heathcote was. She let him know when he had been found;
(k)She returned home, not directly along the Warrego Highway, but via Kingaroy, a very long detour.
It was submitted on behalf of Yvonne Heathcote that the common understanding or intention established by the evidence was to collect Sarah Heathcote's property from 16 Males Drive. The presence of weapons in the car, if known to the appellant, was said to be consistent with their use for protection in the event that Matthew Hoghes threatened violence. It was also submitted that the telephonic communication between Yvonne Heathcote and Crothers is consistent with requests to Crothers for assistance in collecting Sarah's possessions.
There is certainly evidence that the object of those who drove to Tara was to collect the possessions, and the golf club was taken for self-defence. It is not evidence the jury was bound to accept. It had some obvious difficulties. Crothers, David Heathcote and Rogers made no attempt to collect Sarah's possessions. They drove straight into the property and, having killed John Hoghes, set about assaulting his son. The party assembled for the stated purpose was incongruously large for it. Moreover it divided and went separately to the property. Only one group acted as though its object were to collect the possessions. There is, as well, the point that those possessions had been left remote from the house in order to avoid any contact or conflict with those who came for them.
The jury was not compelled to accept the evidence relied upon by the appellant. There were very substantial grounds for rejecting it. That evidence does not mean that it was not open for the jury to find the common unlawful purpose from the other evidence.
It is obvious that David Heathcote intended to assault Matthew Hoghes, and that he shared the intention with Crothers and Rogers. Together they drove to his property, went into his house; overcame any possible resistance by Crothers pointing a loaded shotgun at him; and by Rogers restraining him with handcuffs while David Heathcote assaulted him repeatedly with a metal bar. The strength of their intention was such that the homicide of Matthew Hoghes' father, who came to defend his son, did not deter them from carrying it out.
The particular question is whether the evidence established that Yvonne Heathcote had the same intention, in common with the others. The evidence strongly suggests that she did share the intention, and was its instigator. She made the threat to Matthew Hoghes and travelled to Tara with the two young men whom she nominated as being the avengers of her honour. They took with them weapons suitable for the punishment she had described.
The plan, or common intention, seems to have changed at or just before the sojourn at Jondaryan. Nathan Wells was replaced as one of those to be involved in the assault by Crothers, and probably Rogers.
The frequency of telephone contact between Yvonne Heathcote and Crothers is clear evidence that she was keeping in touch with his activities. She knew that Crothers was at Michelle Wood's house when she rang there just before 11.00 pm. Her frantic efforts to locate David Heathcote after she knew there had been a shooting (whether or not she knew that John Hoghes was dead) between 10.30 pm on 3 May and 8.00 am on 4 May, and the frequent calls to Crothers to assist in the search, was evidence indicating that the three of them were involved in a joint enterprise, the purpose of which can be identified by the threat to Matthew Hoghes and the journey to his house by three armed men.
Counsel for Yvonne Heathcote argued that the common intention had not been proved because:
·The injuries sustained by Matthew Hoghes did not amount to serious harm;
·The assault was carried out by means of a weapon not shown to have been taken to the property by David Heathcote;
·Crothers' presence with his utility might be explained by Yvonne Heathcote's belief that a washing machine was among the possessions to be collected.
The fact that Matthew Hoghes' injuries were not serious (and they seem not to have been) does not mean that there was not a common intention to injure him seriously. The intention may not have been fully carried into execution for a number of reasons. One is that David Heathcote's blood lust had been partially sated by John Hoghes' violent death. Or he may have understood what trouble Crothers was in and moderated his attack to avoid a long gaol term for himself. A third reason is that he overestimated the force of his blows and, while intending to harm Matthew Hoghes seriously, failed in the attempt.
The account of the assault given by Matthew Hoghes and little John Hoghes is of a sustained and vicious attack by a weapon apt to cause severe injury. A substantial number of blows was delivered. There is evidence that Matthew Hoghes appeared to have been quite seriously hurt. Michelle Wood gave evidence that when at her house Crothers remarked about Matthew Hoghes who was lying on the lounge that he had "a broken chest, broken jaw, broken ribs … broken leg." He said to Matthew Hoghes "You won't last till morning" indicating he thought he had been beaten to death. David Heathcote may have had the same impression. Michelle Wood noted that Matthew Hoghes was lapsing in and out of consciousness and "didn't look very healthy." He was later taken to hospital.
There was cogent evidence of an intention to inflict serious harm. A lesser result does not diminish the force of the evidence.
The existence of the common intention is not disproved by lack of direct evidence that David Heathcote had with him a weapon in the utility which he took into the house. There was evidence of the presence of two weapons in the car in which he drove from Gatton to Jondaryan. When he began assaulting Matthew Hoghes he had a weapon of a generally similar description to one of those. There was no evidence that David Heathcote did not have the metal club with him when he got out of the utility. Matthew and little John Hoghes did not pay attention to David Heathcote. They were preoccupied with Crothers and his shotgun.
The suggestion that Crothers and his utility might have been present because a washing machine was to be picked up cannot stand with the evidence that the utility was driven straight into the property, past Sarah Heathcote's possessions.
The first issue, as described, is made out. The evidence was capable of establishing that Yvonne Heathcote, David Heathcote and Crothers had formed the common intention to prosecute the unlawful purpose of seriously injuring Matthew Hoghes. The next inquiry is whether the offences charged against Yvonne Heathcote, murder and aggravated burglary, are offences of such a nature as to be a probable consequence of the prosecution of the common unlawful purpose. Understandably the submissions focused on count 1, the murder, and nothing was said about count 2. However Yvonne Heathcote appeals also against her conviction on that offence, which must therefore be dealt with.
The common intention, which the evidence supported, was that David Heathcote, Crothers and Rogers would go to where Matthew Hoghes lived, at night, in order to assault him with a weapon. The implementation of the intention required violence against Matthew Hoghes.
The three assailants arrived at Matthew Hoghes' house at 9.00 pm to carry out their common intention. It was probable that he would be at home, which would have to be entered if the intention was to be carried into execution.
The aggravated burglary, entering the dwelling of Matthew Hoghes intending to commit an indictable offence, at night, using actual violence in company while armed with an offensive and/or dangerous weapon was a probable consequence of carrying out the common intention. Indeed it was an inevitable consequence.
The real challenge was to the murder conviction. The argument, though put elaborately and at length, was essentially that murder, intentional killing, was not a probable consequence of a common intention to inflict serious harm upon Matthew Hoghes. Particular reliance was placed upon the absence of any evidence that Yvonne Heathcote knew that Crothers had taken a shotgun with them to 16 Males Drive, that she was not present when the offence was committed and that it was not Matthew Hoghes who was killed.
The operation of s 8 was explained by Brennan CJ, Dawson and Toohey JJ in R v Barlow.[1] Their Honours said:
"In the light of these provisions, 'offence' in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act … which the principal offender has done … . It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct … of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct … was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act … but only to the extent that the act was done … in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act … define an offence of a particular 'nature'."
[1](1997) 188 CLR 1 at 10.
Section 8 was again considered by the High Court in R v Keenan.[2] Factually the case has some similarities to the present. Keenan and three others were party to a plan to do serious harm to one Coffey. Coffey was shot in the spine and became a paraplegic. Keenan did not fire the shots and there was no evidence that the use of a gun was a part of the plan. He was convicted of doing Coffey grievous bodily harm with intent.
[2](2009) 236 CLR 397.
Hayne J said:[3]
"… the condition for the engagement of s 8 in this case can be rendered as follows. First, what was the common purpose? Secondly, was the shooting that happened an offence of such a nature that its commission was a probable consequence of the prosecution of the purpose? Both questions must be addressed. And s 8 is not to be read as requiring that the offence that was in fact committed (the shooting) was a probable consequence of the prosecution of the unlawful purpose. To do so would give no work to the expression 'of such a nature'.
…
The question is not whether the act of shooting that did occur was a probable consequence, it is whether the act of shooting was an offence of such a nature that its commission was a probable consequence. This latter question directs particular attention to what was the common intention." (footnote omitted) (emphasis in original)
[3](2009) 236 CLR 397, 423.
His Honour rejected the proposition that, in the circumstances of that case, Keenan could only be convicted if the common intention had involved the use of a gun and that s 8 would not operate where the common intention proved was to attack Coffey with a club. Hayne J said:[4]
"But to identify the common intention in this way would focus only upon the means that were to be used to effect the unlawful purpose. Identifying the weapon … to be used is at best an incomplete description of the purpose that the prosecution alleged the parties had in this case. That purpose was alleged to be the purpose of inflicting some serious physical harm on the victim.
It is important to recognise that the second question presented by s 8 … can be answered in the affirmative even if the possibility that the conduct actually committed would occur was not shown to have been adverted to by any participant in the common intention. …
In considering that objective question it will always be necessary to pay very close attention to what is identified as having been the common intention to prosecute an unlawful purpose. But it is necessary to bear steadily in mind that formation of the common intention … may not have been accompanied by any consideration … of what was to be done, how it was to be done, and who was to do what to bring about the intended purpose. In such cases there will be no direct evidence that the parties to the common intention adverted to the possibility that an offence of the nature of the offence that was committed would be committed; there will be no evidence that the parties to the common intention were aware that commission of the crime that was committed was a probable consequence." (footnotes omitted)
[4](2009) 236 CLR 397, 424.
Kiefel J (with whom Hayne, Heydon and Crennan JJ agreed) said:[5]
[5](2009) 236 CLR 397, 431.
"In answering the questions, as to the nature of the offence committed and what was the common purpose, it is necessary to bear in mind how s 8 operates. The ultimate question which the section poses – whether the offence is of such a nature as to be a probable consequence of the common purpose – is directed to the connection between the offence and the common purpose. It is that connection which is the basis for criminal responsibility. The section's test for connection does not suggest as necessary an approach which imports the act involved in the offence into the finding of common purpose.
The operation of an identical provision was described by Dixon and Evatt JJ in Brennan v The King in these terms:
'The expression 'offence … of such a nature that its commission was a probable consequence of the prosecution of such purpose' fixes on the purpose which there is a common intention to prosecute. It then takes the nature of the offence actually committed. It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence.'
The inferences available as to what the common purpose may have been in a given case will depend upon the evidence, viewed as a whole. Section 8 does not require the connection, between the offence actually committed and the common purpose to be prosecuted, to be established at the point when the common purpose is determined as a fact." (footnotes omitted)
Her Honour also said:[6]
"Where a method by which physical harm is to be inflicted has been discussed, or may be inferred as intended, it does not follow that the use of other means will prevent a person being held criminally responsible. In some cases the means intended to be used may permit an inference as to the level of harm intended. An offence involving such harm may be a probable consequence of such purpose whatever means came to be used. It may be otherwise where the intended means suggest no serious harm was intended and the offence committed well exceeds such a purpose."
[6](2009) 236 CLR 397, 433.
Her Honour then said:[7]
"There can be no difficulty, in a case such as the present, in describing the unlawful purpose as the infliction of serious physical harm. In such a case it is not correct to approach the determination of the common purpose by reference to the means and thereby determine the connection to which the objective test in s 8 is directed. Further, the test to be applied under s 8 is as to the probable consequences of the common plan, not what the parties might have foreseen. Even if the respondent had not anticipated that a gun might be used, he may nevertheless be held criminally responsible where it was used and caused the very level of harm that had been intended. In a case involving an objective of this kind the means actually used may not assume importance in the determination of probable consequence."
[7](2009) 236 CLR 397, 434.
It is a question for the jury to determine what the particular unlawful common purpose was in a given case: Keenan[8] citing Brennan v The King.[9] Equally it is a question for the jury whether the offence in question was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose: Keenan[10] citing Stuart v The Queen.[11]
[8](2009) 236 CLR 397, 430 per Kiefel J.
[9](1936) 55 CLR 253, 261, 266.
[10](2009) 236 CLR 397, 424 per Hayne J.
[11](1974) 134 CLR 426, 442-3.
The question which the court must answer with respect to ground 1 is whether the verdict, guilty of murder, was unreasonable in the sense that it was not open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of Yvonne Heathcote's complicity in the murder, or expressing the question alternatively, should the Court of Appeal entertain a reasonable doubt which the jury should have entertained: M v The Queen.[12] The question for ground 2 is whether the evidence was capable of supporting the conviction.
[12](1994) 181 CLR 487.
For both grounds the question comes down to whether the evidence was sufficient to support the conclusion that the fatal shooting of John Hoghes by Crothers was an offence of such a nature as to be a probable consequence of the prosecution of the common unlawful purpose to inflict serious harm upon Matthew Hoghes. To convict Crothers of murder the jury must have been satisfied that he shot the deceased intending to kill him or cause him grievous bodily harm. Can it be said, on the whole of the evidence, that killing the deceased with the intention of causing him at least grievous bodily harm was an act of such a nature as to be a probable consequence of carrying out the unlawful purpose? Does the evidence show a sufficient connection between the unlawful purpose and the killing with that intention?
Although it must be acknowledged that the case against Yvonne Heathcote was not as strong as that against her son, or Rogers, and that the trial judge entertained misgivings about it, the evidence was sufficient for the jury to conclude that the murder of John Hoghes was a probable consequence of prosecuting the unlawful purpose.
The jury was entitled to infer (indeed it appears the only sensible inference) that Yvonne Heathcote was the instigator of the plan and recruited her son, Crothers and Rogers to carry it out. The unlawful purpose was a gross overreaction to an adolescent insult delivered in the course of an emotionally charged break-up of an immature relationship. To that context Yvonne Heathcote brought two mature men, as well as her son, to inflict serious harm upon a 17 year old youth. The plan, the unlawful purpose, was not to be some youthful skirmish involving fists and abuse but the infliction of serious harm by two older and one younger man, the use of metal clubs, golf clubs and/or aluminium bats.
In addition it was known to Yvonne Heathcote that John Hoghes lived near his sons and was likely to protect them from attack. It was to be expected that the deceased had been advised that David Heathcote and others were coming for the express purpose of harming Matthew Hoghes. Whatever Yvonne Heathcote had said to Matthew Hoghes and/or little John Hoghes in the telephone calls made them thoroughly alarmed. Immediately the utility drove onto the property little John telephoned John Hoghes who came at once with an iron bar to defend his children.
It was open to the jury to find that a probable consequence of carrying out the unlawful purpose in circumstances where the victim had been given advance notice of the plan, and that his father lived nearby, is that the latter would come to defend his son and thereby interrupt the execution of the common unlawful purpose. It was, as well, open to the jury to find that if the unlawful purpose was to be carried out any attempt by John Hoghes to disrupt it had to be overcome by disabling him. In the circumstances, killing John Hoghes with the intention of causing him grievous bodily harm in order to allow the purpose to proceed and prevent his disruption of it could well be regarded as an offence of such a nature as to be a probable consequence of the unlawful purpose.
The evidence might not have compelled that conclusion but it was sufficient to allow it. There was a clear connection between the purpose, and its execution, and the homicide. The circumstances in which the unlawful purpose was to be prosecuted made the intentional infliction of grievous bodily harm to a probable rescuer likely. Murder was therefore an offence of such a nature as to be a probable consequence of prosecuting the purpose. The exposition in Barlow at 10 is satisfied.
It is not necessary, of course, for accessorial liability that a party to the offence under either s 7 or s 8 of the Code be present when the offence is committed. Nor, as Keenan explains, need the particular act which constitutes the offence, in this case shooting, be a probable consequence of prosecuting the common unlawful intention. It is enough if the shooting was an offence of such a nature as to be a probable consequence. For the reasons just explained it was open to the jury on the facts of this case to come to that conclusion.
Grounds 1 and 2 are not made out.
Ground of Appeal 3: The trial judge's directions concerning the application of section 8
Ground 3 is that the trial judge's directions to the jury concerning the application of s 8 were inadequate. There are two specific complaints. The first is that the jury was not instructed that they could not convict unless satisfied beyond reasonable doubt that in a telephone conversation between Yvonne Heathcote and little John Hoghes she told him to inform Matthew that David Heathcote and Nathan Wells were coming and would "beat his head in". The second is that the trial judge failed adequately to relate the terms of s 8 to the facts as they concerned the appellant.
(a)The trial judge's directions concerning the telephone conversation between Yvonne Heathcote and little John Hoghes
The appellant's argument on the first complaint is that the case against her was entirely circumstantial, and that the conversation was "an indispensable intermediate step" in the process of reasoning to the inference of guilt so that, according to Shepherd v The Queen,[13] that fact, relied upon as a circumstance pointing to guilt, had to be proved beyond reasonable doubt.
[13](1990) 170 CLR 573.
There is a subsidiary complaint that the trial judge wrongly described the evidence of the conversation. Having referred to it her Honour said:
"You must consider very carefully whether you accept this evidence. It is the only direct evidence implicating Yvonne Heathcote in a plan to seriously injure Matthew."
The appellant categorises the case against her as entirely circumstantial so that the judge's designation of the conversation as direct evidence was erroneous.
Shepherd decided that in a circumstantial case the facts, being the circumstances from which the inference of guilt is to be drawn, must be proved beyond reasonable doubt but the evidence which tends to prove the existence of those facts (circumstances) do not themselves have to be proved beyond reasonable doubt. It is only those intermediate facts which are necessary for the ultimate inference of guilt that must be proved to that standard.
The prosecution case against Yvonne Heathcote, that she in common with others intended to do serious harm to Matthew Hoghes, was circumstantial. The conclusion that there was such an intention which she had in common with others was said to follow from a number of pieces of evidence concerning what she said, where she went, her choice of companions, what they took with them, and her contact with her co-accused. None of those pieces of evidence was an indispensable intermediate fact leading to the conclusion, or inference, that she shared the common intention. The conversation was not necessary to the inference, which could have been drawn from other evidence. Nevertheless the evidence of the conversation was correctly described as direct. The fact that it occurred was not itself a question of inference. One of the parties to the conversation who heard what the appellant said gave evidence of her words. They were, or were capable of being, an admission that she, in common with David Heathcote, intended to hurt Matthew Hoghes.
The conversation was important direct evidence. There was no misdirection with respect to it.
(b)The trial judge's instructions concerning the application of section 8 to the facts
The second complaint making up ground 3 is that the jury was not given any instruction as to the application of s 8 to the facts of the case: Fingleton v The Queen.[14]
[14](2005) 227 CLR 166, 196-7.
The complaint is without substance. The trial judge approached her instructions to the jury with respect to s 8 by explaining the section and its operation in general terms and then separately discussing its application to the cases against Yvonne Heathcote, David Heathcote and Rogers. Her Honour read the section, gave a paraphrase of it, and explained how the prosecution sought to use the section, by reference to the particulars furnished.
Her Honour said:
"The prosecution relies on section 8 as an alternative way of establishing that Rogers and David Heathcote are guilty of the murder of Hoghes, and it relies on this section to establish that Yvonne Heathcote is guilty of murder. If you go to the particulars … . The prosecution alleges that the common unlawful purpose was to serious[ly] injure Matthew. It alleges that David … Heathcote, Yvonne … Heathcote and … Rogers had that purpose, and it alleges that it was a probable consequence of that common unlawful purpose that Hoghes would die from injuries inflicted with an intention to cause death or grievous bodily harm. In other words, that the murder of Hoghes was the kind of offence likely to be committed as the result of carrying out the plan to seriously injure Matthew.
Taking each of these three defendants in turn, you have to consider whether the prosecution has satisfied you beyond reasonable doubt on evidence admissible against the particular defendant whose case you are considering: (a) that there was common intention to seriously injure Matthew; (b) that the murder of Hoghes was committed in carrying out that purpose and; (c) that the offence was of such a nature that its commission was a probable consequence of carrying out that purpose."
The learned judge then turned to the separate requisites of the section and explained "common intention" and "probable" in terms which are not the subject of criticism. That part of the summing-up concluded:
"Before you could bring in a verdict of murder based on section 8, you would have to be satisfied beyond reasonable doubt that it was objectively likely that in carrying out the plan to seriously injure Matthew, John … Hoghes would be killed by an act or acts done with intent to kill or cause grievous bodily harm. You would not need to be satisfied that it was objectively likely that he would be murdered by the use of a gun.
If you are left with a reasonable doubt whether murder was the kind of offence likely to result from carrying out that plan, you cannot find any of these three defendants guilty of murder based on section 8. …"
The summing-up then turned immediately to "the section 8 case against Yvonne Heathcote" and the jury was asked to consider "Was there a plan to which she was a party?" There followed a summary of the evidence relevant to that point, and the arguments of counsel, prosecution and defence, with respect to it. Her Honour finished this part of her summing-up by saying:
"… before you may find Yvonne guilty of murder, you must be satisfied beyond reasonable doubt that she was a party to a plan, that the plan was to seriously injure Matthew rather than to simply collect Sarah's gear, and that it was a probable consequence of the prosecution of that plan that John … Hoghes would be murdered. The objective likelihood of the murder of Hoghes depends largely on what the plan was. Again, a matter for you."
The appellant's submissions do not identify what additional instruction the trial judge should have given. It is not obvious that anything more could sensibly have been said. The section was read to the jury and its operation explained. The jury were well aware of the circumstances of John Hoghes' homicide. They were reminded of the evidence which implicated Yvonne Heathcote in what the Crown alleged was a common unlawful purpose and told they could convict of murder only if satisfied beyond reasonable doubt that murder was an offence of such a nature as to be a probable consequence of carrying out the common unlawful purpose. To say so much was to instruct the jury as to the real issue in the case, the facts relevant to it and how the law applied to the facts.
This complaint, too, is without substance and ground 3 is not made out. There was no complaint made about the summing-up with respect to count 2, the burglary.
Ground of Appeal 4: The trial judge's instructions on self-defence
For the reasons given in Crothers' appeal, ground 4 in this appeal, that the jury was inadequately instructed on self-defence, has not been made out. Yvonne Heathcote's appeal should therefore be dismissed.
Ground of Appeal 5: The trial miscarried because of an accumulation of irregularities
Ground 5 contains four separate complaints which separately or in combination are said to have caused the trial to miscarry.
(a)Independent jury investigations
The first complaint, that the jury had made independent investigations, arose from the fact that a juror took a roadmap into the jury room the better to understand evidence of the appellants' movements and the roads on which they travelled.
At the commencement of the trial, the judge directed the jury in these terms:
"… The only evidence you may consider in coming to your verdicts is that presented in Court during the trial. The only law you may apply is the law I shall explain to you. It is not for you to make your own inquiries about the facts or the law. You must not take into account anything you have ascertained about the facts or the law outside the courtroom.
I am giving you this direction for good reason. It would be inherently unfair for you to act on information not before the Court and which both sides don't know you are acting on. It would be inherently unfair for both sides not to have the opportunity to test its accuracy and its application to the case. We all know that information in the public arena is not always accurate. I can give an example, of someone with a similar name."
On the 16th day of the trial, the jury asked the judge for a larger map of the Tara, Kingaroy and Gatton area. After discussing the request with counsel, Rogers and Crothers, the judge told the jury that a map would be provided, though it would take some time.[15]
[15]Appeal Book 921-922.
On the 19th day of the trial, the prosecution produced the maps requested by the jury and provided multiple copies. Exhibit 157 depicted the Kingaroy, Chinchilla, Tara and Gatton area. Exhibit 158 provided more detailed topography of these areas.[16]
[16]Appeal Book 1124 and 1125.
Later that day, the bailiff brought to the judge's attention that a juror had an RACQ map of south-east Queensland in the jury room and had highlighted a number of towns relevant to the case. The judge had the jury return to the court. The juror responsible explained that he had brought the map into the jury room two days earlier, but only took it out of his bag that day "to get the mileage of some of the areas to give an overall view of the mileage".[17] The judge gave the following direction:
"… Ladies and gentlemen, you will recall that at the commencement of this trial I directed you that the only law you might consider was that which I would explain to you and the only facts which you might consider were the facts you heard in the courtroom and that you were not to make your own inquiries about the law or the facts because to do so would be inherently unfair to the parties."[18]
[17]Appeal Book 1150.
[18]Appeal Book 1150-1151.
The judge enquired whether the jurors had made any other inquiries. The jurors collectively answered, "no". The jury then retired whilst the judge heard legal argument about the unusual turn of events. Counsel for Yvonne Heathcote and David Heathcote applied for a mistrial, largely on the basis that if the jury did not obey the judge's directions given at the commencement of the trial, then the jury could not be expected to follow the complex legal directions which would be given at the end of the trial. Crothers joined in this application.
The judge found as a matter of fact that the map brought into the jury room did not in any real sense add to the information already before the jury. The maps, exs 157 and 158, largely showed the area contained in the unexhibited map. The judge distinguished a number of cases where jury misconduct or irregularity resulted in mistrials, including R v Skaf;[19] Domican (No 3)[20] and Folbigg.[21] Her Honour considered that the correct approach in determining this application accorded with that taken in R v Forbes:[22] a juror's failure to follow a judicial direction on one occasion did not mean that the juror was generally prepared to act contrary to judicial direction. The judge was ultimately unpersuaded that the juror's taking the map into the jury room meant there was a substantial risk that the jury would ignore other judicial directions. Accordingly, the judge refused to declare a mistrial.
[19][2004] NSWCCA 37.
[20](1990) 46 A Crim R 428.
[21][2007] NSWCCA 371 at [11]-[19].
[22][2005] NSWCCA 377.
Counsel in this appeal contend that this ruling was an error of law. They emphasised the cases of Skaf and R v K.[23] But the investigations made by the jury in this case, as her Honour found, were in a different and less concerning category to an inspection of the crime scene (Skaf) or an internet search (R v K). First, in those cases the jury investigations may well have resulted in material not before the jury in evidence being considered by the jury in reaching a verdict. The second but related distinction is that, in the present case, similar maps to the RACQ map were already exhibited before the jury. Like the primary judge, we are satisfied the irregularity of taking the RACQ map into the jury room did not affect the jury verdict: see R v K and Skaf.[24] There has been no resulting fundamental irregularity or miscarriage of justice. This complaint is without substance.
(b)The trial judge's refusal to order separate trials
[23][2003] NSWCCA 486.
[24]At [274].
The second complaint is that Crothers and Rogers who appeared for themselves at the trial misbehaved and, as a result, prejudiced Yvonne Heathcote's trial. In addition to the comments which immediately follow, the observations made later in these reasons in respect of Crothers' ground of appeal 2 and Rogers' grounds of appeal (a) and (b) and their applications to adduce further evidence are apposite.
No appellant applied for a separate trial prior to the commencement of the trial before the jury on 31 August 2009, although there was ample opportunity to do so, especially during the two days of pre-trial legal argument in Toowoomba on 17 and 18 August 2009. The presentation of an indictment joining the various charges brought against all four appellants was authorised under s 567 and s 568 Criminal Code. The prosecution case based on s 7 and s 8 Criminal Code relied on evidence of the close interconnectedness of the four appellants in the offending. This case was therefore an entirely appropriate one in which to proceed against all four appellants in a joint trial. No doubt that is why there was no early application for separate trials.
The first application for a separate trial was made on the fourth day of trial by Rogers' counsel on the basis that Crothers' self-representation was likely to prejudice the jury against Rogers in light of Crothers' intellectual and educational deficits. Counsel for Yvonne Heathcote joined in the application. The judge summarily dismissed the application concluding that there was no present need to order separate trials, but noting that she would consider future applications on their merits. The judge was plainly right to refuse that application as no reason warranting a separate trial at that time had arisen.
Counsel for Rogers, David Heathcote and Yvonne Heathcote made a further application for a separate trial on the seventh day. Again, this application was based on the considerable delay caused by Crothers' self-representation and counsel hypothesised that the jury might become angry and frustrated at the length of the trial. Counsel submitted that, were the trial to proceed only in respect of the defendants other than Crothers, it would be efficiently conducted and significantly shortened.
The judge again concluded that a separate trial or a declaration of a mistrial was not warranted at that time. The judge considered that, whilst conscious of the potential for the jury to feel frustrated, they were responsible community members who would, true to their oaths and affirmations, try the case fairly. When the jury returned to the court room, the judge gave the following direction:
"I'm conscious, ladies and gentlemen, that it must be sometimes frustrating, if not irritating, for you to be sent out of the courtroom and being asked to wait. However, as I said to you at the commencement of this trial, yours is a very important task, one central to the administration of justice. I know that you're all responsible members of the community and that you will all be true to the oath or affirmation which you took at the beginning to try this case fairly, and in doing that I'm afraid sometimes you have to be patient. I'll do what I can to keep things moving, but as you will have appreciated by now, when someone does not have legal representation things can take longer than they otherwise might. We'll keep moving as fast as we reasonably can, and I ask for your patience."
The judge's decision not to grant a mistrial was clearly within a proper exercise of discretion and, in our view, was the only proper course open. The judge wisely reminded the jury of their obligations and counselled patience. There is no reason to think that the jury did not heed the judge's thoughtful direction.
On the 12th day of the trial, Rogers dismissed his lawyers. Counsel for David Heathcote and Yvonne Heathcote made fresh applications for separate trials on the following basis. The jury by this time had become aware that Crothers had a criminal history. Before Rogers dismissed his counsel, the jury would have noticed that his counsel and counsel for David Heathcote had been running their "respective cases in tandem … by arrangement". Rogers, in conducting his own case, could now damage David Heathcote's case and counsel's planned tactics.
Counsel for Yvonne Heathcote submitted that, had he known that two defendants would be self-represented during this trial, he would have made an application for a separate trial at the commencement of proceedings. Like counsel for David Heathcote, he had made forensic decisions with counsel for Rogers as to the conduct of the trial and his vision as to how the trial should be conducted was now uncertain because of Rogers' self-representation.
Neither Crothers nor Rogers joined in the application.
The trial judge expressed her confidence in the capabilities of counsel for David Heathcote and Yvonne Heathcote to rise to the challenge and to continue to ably defend their clients. Whether a separate trial should be granted involved a consideration of the interests of justice. The continuation of the joint trial against all four defendants would not be unfair to any of them. The trial was in its 12th day and many witnesses had already given evidence. For a number of witnesses, the experience of giving evidence had been distressing as they relived traumatic events. This was an appropriate case to proceed against all defendants together. The judge refused the application.
Rogers was legally represented at the pre-trial hearing in Toowoomba on 17 and 18 August 2010 and at his trial in Brisbane commencing on 31 August 2009 by the same counsel who conducted his committal, instructed by LAQ. On the 12th day of the trial, Rogers dismissed his lawyers. He represented himself for the duration of the trial and at sentence.
On the 16th day of the trial, he told the trial judge that he wanted to set aside his admissions and guilty pleas to count 2 (the aggravated burglary of Matthew Hoghes' premises), count 6 (deprivation of liberty of Michelle Wood) and count 7 (unlawful use of a motor vehicle with a circumstance of aggravation) stating that his lawyers pressured him to make the admissions[72] and did not properly explain things. His lawyers told him he would get 18 years imprisonment if he did not sign the paper indicating he would plead guilty.[73]
[72]Appeal Book 915.
[73]Appeal Book 971.
On the 18th day of the trial,[74] he told the judge that he would like legal aid, but he wanted to nominate his own legal team and did not want the lawyers who had been acting for him in the trial. He was not told that he could apply at that time for an adjournment to get new lawyers. Had he known he could have, he would have applied for an adjournment. He would have told his new lawyers to challenge the admissibility of his formal police interview. Crothers encouraged him to believe he could adequately represent himself at trial.
[74]Appeal Book 1011.
Rogers also sought to lead further evidence of his signed instructions to his lawyers dated 7 September 2009. These included: "I have been advised there is no benefit in attempting to argue period of time I was kept in custody before I was taken to court" and "Finally I do confirm that my lawyers should make any application for a separate trial when it becomes available". Rogers claims that his lawyers advised him in these terms and he relied on that advice in signing those instructions. He was not advised that it would benefit him to have the formal police interview excluded as evidence.
Rogers' counsel in this appeal especially emphasises the further evidence which demonstrates Rogers' low IQ; that at all times Rogers wished to challenge the admissibility of his formal police interview; and that the failure of Rogers' lawyers to follow his wishes in this respect was the principal reason for dismissing them. Rogers did not appreciate that, after dismissing his lawyers, he could then challenge the admissibility of the formal police interview. Had he done so, it may have been excluded and Rogers may have been acquitted.
Rogers has a challenging task in persuading this Court to accept the further evidence, even where it is fresh in the sense discussed in Gallagher v The Queen.[75] An appellate court, in determining whether to accept fresh evidence, considers whether there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, including the evidence at trial, a jury acting reasonably would have acquitted the appellant: Gallagher[76] and Mickelberg v The Queen.[77] The courts also recognise that there is a residual discretion in exceptional cases to receive on appeal new or further evidence which is not fresh evidence if to refuse to do so would lead to a miscarriage of justice: R v Condren; ex parte Attorney-General;[78] R v Young (No 2);[79] R v Daley; ex parte Attorney-General Queensland;[80] R v Main[81] and R v Katsidis; ex parte Attorney-General Queensland.[82] In determining those questions, it is necessary to review Rogers' formal police interview, the circumstances surrounding it and the conduct of his case at trial.
(b)Rogers' formal record of interview with police
[75](1986) 160 CLR 392, 395; [1986] HCA 26.
[76]At 397, 407.
[77](1988) 167 CLR 259, 273, 292, 301-302; [1989] HCA 35.
[78][1991] 1 Qd R 574, 579; (1991) A Crim R 79.
[79][1969] Qd R 566.
[80][2005] QCA 162.
[81](1995) 105 A Crim R 412, McMurdo P at [16]-[17]; Pincus JA at [22]-[24]; [1999] QCA 148.
[82][2005] QCA 229, at [2]-[4], [11]-[19], [36].
Before considering Rogers' grounds of appeal concerning his formal police interview, it is helpful to set out something of it.
The interview commenced at about 8.00 pm and concluded at about 11.57 pm on 4 May 2009. He made statements in it which were inconsistent with his earlier statements to police recorded on a field tape. The prosecution relied on these earlier statements to attack Rogers' credibility generally, but not as proof of guilt. He made admissions in the formal police interview relied on by the prosecution to establish the case against him under s 8.
But he also gave the following account in it which supported the contention that Crothers was acting in self-defence when he killed the deceased.
On an earlier occasion, he and Crothers had gone to Matthew Hoghes' house at Males Road to collect rent money which Crothers said was owed by Matthew Hoghes. Matthew's father (the deceased) was present.[83]
[83]This seems to be what Crothers referred to in the trial as "the Christmas incident".
On 3 May 2009, when Crothers killed the deceased, the deceased first took a swing at Crothers with an iron bar for no apparent reason. Crothers warned the deceased three times to drop the iron bar and it was in that context that the shotgun discharged.
Rogers and Crothers met up earlier that day with Yvonne Heathcote, David Heathcote and Sarah at the Jondaryan Hotel. Yvonne told Crothers "where to go". Crothers, Rogers and David Heathcote left Jondaryan in Crothers' car. All three sat in the front. David was drunk and quite angry with what had transpired between the Hoghes family and Yvonne. David was drunk enough to be aggressive towards those who had called his mother, Yvonne, a slut. He "was saying that he was going to bash these people and that sort of stuff". The three drove to Males Road near Tara. David Heathcote checked Sarah's belongings and found them all smashed. On the way there, David Heathcote was "fired up" and said that he wanted to "punch there (sic) heads in". Crothers said, "we'll see when we get there."
They had a 12 gauge shotgun in the vehicle. The gun was normally stored in a locked cupboard in Crothers' bedroom. Crothers took the unloaded gun to Yvonne Heathcote's place "Cause you have shot gun weddings and that sort of stuff" and David Heathcote had recently become engaged. They put the shotgun into Crothers' utility as "a precautionary thing". Rogers knew it was not loaded; he had three duckshot shells in his pocket which Crothers had taken from the cupboard and given to him. Crothers said he wanted the shotgun "[a]s a precautionary matter … Depending on how many ah aggravated people were at the other end".
At Males Road, Matthew and little John Hoghes threatened Crothers. Their father (the deceased) then came "bolting in his car and went straight for" Crothers with the iron bar. Before the father arrived, when Matthew and little John Hoghes became aggressive, Crothers got the shotgun and Rogers gave Crothers two shells to put in it. He knew he should not have given Crothers the shells. When the father arrived, Crothers warned him three times to put the iron bar down but he did not. Instead, he swung it at Crothers who:
"put a shell to him … There was a warning, he tried doing a warning shot at the leg or whatever, right, but would have probably blown the leg clean out, I'm not sure and, ah, cause it's Duck Shot and, ah, he just come straight at [Crothers] with the iron bar".
The iron bar wielded by the deceased on 3 May 2007 was about four feet long and an inch and a half to two inches wide. Rogers reckoned the shooting was self-defence because Crothers told the deceased to drop the weapon three times and Crothers was only there to pick up "the sheila's gear".
At the time of the shooting, Rogers was behind the tailgate of the utility, "having a leak". After the shooting, Crothers, Rogers and David Heathcote walked into the house. David Heathcote "went Berserk", "lost the plot". David Heathcote gave Matthew Hoghes a "flogging" with the baseball bat and with his fists. The deceased was not moving, but there may have been a faint pulse. With the assistance of Matthew and little John Hoghes, they loaded the deceased into the boot of the deceased's car. They travelled to the deceased's home where they spoke with the deceased's partner (Michelle Wood). They had a conversation with her in which she agreed that the deceased's death was self-defence because he had bashed Matthew and other people before, "even her".
Later Rogers spoke by telephone to Yvonne Heathcote who wanted to know the whereabouts of David Heathcote. Rogers had not seen David Heathcote since they all left the house at 16 Males Road.
(c)The trial judge did not conduct a voir dire concerning the admissibility of Rogers' formal record of interview
This ground of appeal concerns Rogers' ground (d). Rogers' counsel now argues that, if Rogers' contention in his further evidence is accepted, that he was not informed that his detention period was to be extended, as required by ch 15, pt I, div 3 Police Powers and Responsibilities Act 2000 (Qld), his subsequent formal police interview may well have been excluded by a judge in a voir dire because of police non-compliance with that statutory requirement. The judge should have told Rogers once he was self-represented that he could have a voir dire to explain this issue or initiated the voir dire herself.
It is true that aspects of Rogers' formal police interview were incriminating and his defence position may have been arguably stronger were it excluded. But, contrary to Rogers' contentions, he did not at all times wish to challenge the admissibility of the formal police interview. He gave informed written instructions to his lawyers not to pursue this course. The further evidence does not suggest he was unfit to give these instructions. If, as his further evidence states, his lawyers' advice in this respect was a significant reason for him dismissing them, the fact remains that he did not then immediately apply to the judge to exclude the interview. It is by no means certain or even probable that, had the question of the admissibility of Rogers' formal police interview been pursued in a voir dire, this would have resulted in its exclusion from evidence. His counsel at trial cross-examined Briese at committal and was clearly cognisant of the opportunity to apply to exclude Rogers' formal police interview because of non-compliance with the Police Powers and Responsibilities Act. Counsel did not consider that was prudent. Rogers, at least at times, accepted that advice.
Once self-represented, Rogers in cross-examination did put to police officer Briese that Briese did not tell him on 4 May that an application to a magistrate for an extension of Rogers' detention was being made. But Briese rejected that contention. Although Rogers also sought to raise the issue with another witness, police officer Walker, the prosecutor rightly objected as this witness had no personal knowledge of the issue. This was hardly likely to alert the judge to the fact that Rogers wanted to challenge the admissibility of his formal police interview after the trial had proceeded for several weeks.
In any case, aspects of Rogers' formal police interview were helpful to him in that they provided support for his contention that Crothers was acting in self-defence in killing the deceased. Had the jury determined that the prosecution had not negatived self-defence beyond reasonable doubt in Crothers' case, Rogers would have been acquitted of both murder and manslaughter. There was a logical, tactical forensic reason for Rogers' lawyers not to challenge his formal police interview, especially if the plan to obtain a separate trial from Crothers had been successful. Such a forensic decision appears consistent with Rogers' signed instructions to his lawyers dated 7 September 2009 (the sixth day of the trial).
Rogers' counsel now argues that, consistent with the approach of this Court in R v Walbank[84] and with the observations of the New South Wales Court of Criminal Appeal in R v Small,[85] the trial judge should have informed the self-represented Rogers that he could have had a voir dire to explore the admissibility of his formal police interview. Indeed, the submission seems to be that the judge should have conducted the voir dire in any case. But the circumstances pertaining here were very different to those in Walbank and Small. The trial judge would have needed finely tuned intuition amounting to a sixth sense to have understood from the questions raised by Rogers in his cross-examination of police officers Briese and Walker, that he was claiming his formal record of interview with police should be excluded on the basis of unfairness. Intuitive sixth sense is not yet amongst the many attributes appellate courts require of trial judges in the criminal jurisdiction.
[84][1995] QCA 149.
[85](1994) 72 A Crim R 462, 469.
We are unpersuaded the judge erred in not undertaking a voir dire as to the admissibility of Rogers' formal police interview once Rogers dismissed his lawyers. On the material before this Court, we are not persuaded that such a voir dire, if held, would have resulted in the exclusion of the formal police interview or that excluding the interview would necessarily have assisted Rogers' case. It follows that we are not persuaded that the judge's omission to conduct a voir dire about the admissibility of the formal police interview has resulted in a miscarriage of justice. This contention is not made out.
(d)The trial judge did not adjourn the trial for Rogers to seek legal advice after he dismissed his lawyers
Rogers, in his ground of appeal (a), contends that the judge erred in not giving him the opportunity to seek further legal advice or representation after he dismissed his lawyers at the trial.
Rogers told the primary judge when he dismissed his lawyers on the 12th day of the trial that he was happy to continue with the trial self-represented. He did not request an adjournment to obtain new lawyers. It is true that on the 18th day of the trial Rogers appeared to question whether it was possible for his legal aid grant to be used to provide him with lawyers other than those who had acted for him at trial. The judge expressed some doubt about whether this would be possible but told him it was a matter he would have to take up with LAQ. Rogers did not raise the matter again in court. There was no evidence before the trial judge and none before this Court that, had the judge granted an adjournment to allow Rogers to pursue new legal representation through LAQ, he would have succeeded.
As Dietrich recognises,[86] it is unquestionably desirable that people accused of serious crimes are legally represented at their trials. As Keane JA observed in R v East:[87]
"So important is the availability of legal representation to the settled understanding in Australia of a fairly conducted criminal trial that the majority of the High Court in Dietrich v The Queen [(1992) 177 CLR 292 at 311, 331, 342-343] held that a criminal trial for a serious offence should be adjourned, rather than that an indigent accused should be forced on to trial without legal representation against his or her will, save in exceptional circumstances."[88]
[86]See [301] of these reasons.
[87][2008] QCA 144.
[88][2008] QCA 144, [52].
But unlike in East, Rogers had legal representation during the two days of pre-trial hearing and the first 12 days of his trial and decided to dispense with it. And unlike in East, when Rogers dismissed his lawyers, he did not ask for an adjournment to obtain different legal representation under his grant of legal aid. There was no reason for the judge to think that Rogers then wanted legal representation. In light of Crothers' experience, there was no reason for the judge to think that, even if Rogers later wanted LAQ to supply him with new lawyers, he would be accommodated. Further, unlike in East, Rogers' case had been continuing for several weeks and involved three co-offenders, two of whom remained legally represented. Their counsel vigorously pursued Rogers' most promising defence: that the prosecution would not disprove beyond reasonable doubt that Crothers was not acting in self-defence.
After Rogers' became self-represented, he conducted his case in a way which showed some, albeit limited, understanding of what the case was about and appropriate criminal trial procedure. He had by then been watching experienced counsel for 12 days and had heard the judge's explanations of relevant matters to Crothers. As in Crothers' case, the judge was astute to do everything possible to ensure the self-represented Rogers continued to have a fair trial. We have already set out the directions she gave both Crothers and Rogers on the 20th day of the trial in the absence of the jury to assist them in understanding their rights.[89]
[89]See [292]-[295] of these reasons.
Rogers made coherent submissions to the trial judge. For example, in discussion with the judge prior to the commencement of addresses, Rogers emphasised that Matthew and John Hoghes were armed with weapons.[90] In discussions as to what issues had to be explained to the jury, Rogers emphasised that the deceased had drugs and alcohol in his system and had attacked Crothers with an iron bar, arguing that this was relevant to self-defence because you could not argue with a person with drugs and alcohol in their system. He also supported Crothers in his contention to the primary judge that self-defence was raised on the evidence.[91]
[90]Appeal Book 1298.
[91]Appeal Book 1304.
The prosecutor did not address the jury on Rogers' case.
It is true that Rogers' address to the jury was brief but it was not necessarily ineffective. He emphasised that the telephone records showed he had little contact with Yvonne Heathcote and Crothers before he and Crothers went to Hoghes' property near Tara. Rogers continued:
"… the Prosecutor stated that we had a plan. Well, I can say we didn't have a plan. The plan that he's saying that we went up there to - to can kill that person, no way. All we went up there to do is get David's sister's gear. That was all. And whatever happened after that had nothing to do with us."
Rogers also had the benefit of closing addresses by counsel on behalf of Yvonne Heathcote and David Heathcote who both raised issues relevant and helpful to Rogers' case on self-defence and liability under s 7 and s 8 of the Criminal Code.
The trial judge carefully and accurately directed the jury as to the law and the evidence in Rogers' case.[92] The judge explained that if they were satisfied that Rogers was initially untruthful in his answers to police, or that he was later untruthful in aspects of what he said in his formal police interview, that went only to his credibility and was not evidence of his guilt. The judge suggested to the jury that they may think the s 8 case against him was weak, but this was a matter for them.[93]
[92]Appeal Book 1488-1491.
[93]Appeal Book 1504.
Our review of the way the trial was conducted leaves us unpersuaded that Rogers' trial was unfair because of his self-representation. A miscarriage of justice has not resulted through the judge's omission to give Rogers the opportunity to seek further legal representation or advice after he dispensed with his lawyers during this trial. This contention also fails. It follows that Rogers' ground of appeal (a) is not made out.
(e)Conclusion on Rogers' application to adduce further evidence
We have carefully considered the further evidence which Rogers has sought to adduce in this appeal. We note that it does not demonstrate nor suggest that Rogers was of unsound mind at the time of the alleged offending or that he was unfit to plead or instruct his counsel during the trial. Even taking the further evidence into account, none of the grounds of appeal raised has been successfully made out. It follows that, had the further evidence been led at trial, there is no significant possibility, and nor it is likely, that a reasonable jury would have acquitted him. The refusal of the application to adduce the further evidence does not result in a miscarriage of justice.[94] It follows that Rogers' application to adduce the further evidence must be refused.
[94]Gallagher v The Queen (1986) 160 CLR 392, 397, 399, 407; Mickelberg v The Queen (1988) 167 CLR 259, 273, 275, 292, 301-302; R v Katsidis; ex parte Attorney-General Queensland [2005] QCA 229, [2]-[4], [11]-[19], [36].
APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE
Yvonne Heathcote and Rogers applied for leave to appeal against sentence. But as their convictions for murder have been affirmed by this Court, the only sentence that can be imposed on them is mandatory life imprisonment.[95] Their applications for leave to appeal against sentence must be refused.
[95]Criminal Code 1899 (Qld) s 305(1).
ORDERS:
1. In respect of each appellant, the appeal against conviction is dismissed.
2. In respect of the appellant Crothers, the application to adduce further evidence is refused.
3. In respect of the appellant Rogers, the application to adduce further evidence is refused. The application for leave to appeal against sentence is refused.
4. In respect of the appellant Yvonne Heathcote, the application for leave to appeal against sentence is refused.
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