R v Fred
[2001] QCA 561
•11 December 2001
SUPREME COURT OF QUEENSLAND
CITATION:
R v Fred [2001] QCA 561
PARTIES:
R
v
FRED, Doris
(appellant)FILE NO/S:
CA No 193 of 2001
SC No 261 of 2001DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
11 December 2001
DELIVERED AT:
Brisbane
HEARING DATE:
20 November 2001
JUDGES:
McPherson JA, Mackenzie and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
Appeal allowed. Verdict and conviction set aside.
Verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment.CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PROOF AND EVIDENCE – OTHER CASES - appeal against murder conviction on the grounds that the jury’s verdict was unreasonable and the conviction is unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – WHERE EVIDENCE CIRCUMSTANTIAL – WHERE APPEAL ALLOWED – consideration of crown case – whether sufficient evidence that the appellant counselled or procured the co-accused to commit an act – whether sufficient evidence that the appellant did something for the purpose of and/or enabling the co-accused to commit the act – whether ‘criminally responsible’ under s 7 Criminal Code
APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – POWER TO ORDER NEW TRIAL AND OR QUASH CONVICTION AND DIRECT ENTRY OF JUDGMENT OF ACQUITTAL – appeal allowed and verdict and conviction set aside – where verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment – whether a retrial can only be ordered if there is some other viable case based on the remainder of the evidence.
Criminal Code (Qld) s 7, s 7(1)(b), s 7(1)(c), s 7(1)(d)
Evidence Act 1977 (Qld) s 101R v Coney (1882) 8 QBD 534, considered
R v Jervis [1993] 1 Qd R 643, considered
R v Oberbillig [1989] 1 Qd R 342, consideredCOUNSEL:
A Rafter for the appellant
S Bain for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
McPHERSON JA: Early on 12 November 1999 Robert Fred shot and killed Robert Smith at Mt Garnet. The deceased Robert Smith was the husband of the appellant Doris Fred, who was the mother of Robert Fred. At the time in question, they all lived together in the house in Mt Garnet in which the deceased was murdered. Robert Fred was found guilty of the murder at a trial in the Supreme Court at Cairns at which the appellant Doris was also tried and found guilty of murdering the deceased.
The appellant was away from home at the time of the killing. The prosecution alleged that her criminal responsibility for the murder arose under either or both of s 7(1)(b) or s 7(1)(d) of the Criminal Code. Under s 7(1)(b), it was necessary for the Crown to establish that the appellant not only knew that her son intended to murder the deceased, but did or omitted to do an act for the purpose of enabling him to do so. This follows from the fact that s 7(1)(b) speaks of the act being done or omitted “for the purpose of enabling or aiding” another person to commit the offence. See R v Jervis [1993] 1 Qd R 643, 647-648, 665. To attract criminal responsibility under s 7(1)(d) for the murder of the deceased, it was also necessary for the Crown to prove that the appellant intended that he should be murdered. That is so because the murder of her husband was the offence the commission of which she was charged with counselling or procuring.
The Crown was in a position to prove, and at the trial plainly did prove, that the appellant knew that her son Robert Fred intended to murder the deceased. There was no dispute about it on the appeal. The Code, however, contains nothing resembling the old common law offence of misprision of felony. Proof of no more than knowledge on her part, however complete, of that intention involved her in no criminal responsibility under the Criminal Code for the murder, unless perhaps it could be shown that the omission to inform the deceased or someone else was what in fact caused or substantially contributed to the death of the deceased. Nothing of that kind was suggested by the prosecution here either at the trial or on appeal. It is an odd feature of his case that a number of members of the family seem to have known of the son’s intention to kill the deceased. That did not make them guilty of his murder.
What had to be established under s 7(1)(b) was that the appellant had done some act for the purpose of enabling her son to murder the deceased. It was not enough to prove that she knew he intended to do so, nor even that she wished it to happen. The statement imputed to the appellant by Melba Legrande in the conversation under the mango tree that the appellant “wanted to get rid of the old fellow” was not by itself sufficient to make her guilty of the murder carried out by her son. For s 7(1)(b) there had to be an act, and the act fixed upon by the Crown in its particulars was the appellant’s action in “leaving town at the time prior to the killing taking place”. The appellant did in fact leave Mt Garnet on the Wednesday before the killing took place. The problem that remained for the prosecution was to establish that she did so for the purpose of assisting her son to kill the deceased. There is some suggestion in the evidence that the son may not have wished her to be there at the time when the deed was in fact done. In a passage in the evidence that is referred to in the reasons of Mackenzie J in this appeal, the witness Josephine Simpson said that, in the presence of the appellant, she had heard the son say that he could not do it while she [the appellant] was there. In evidence she agreed that that was what she heard the appellant say, or, she added, “or something”.
That was some evidence on which the jury might act, if they accepted it as reliable; but it was very far from proving that the appellant left Mt Garnet on the Wednesday for the purpose of assisting the commission of the murder. On the evidence at trial, it was at least as likely that the reason why she absented herself on Wednesday was in order to go to Townsville for medical treatment. She went there regularly to consult a medical specialist about a kidney complaint from which she suffered. Some other members of the family who saw the appellant shortly before her departure on this occasion said that she appeared to be sick and said she was intending to go to Townsville to see the specialist. The appellant did not testify at the trial, so that the issue of her purpose in leaving home before the killing took place was inevitably left to inference. On that question, the competing inferences or hypotheses for and against that being her purpose, or at least a purpose, in absenting herself were, at the very best for the Crown, evenly balanced. It was a long way short of proving beyond reasonable doubt that she did so in order to assist her son murder the deceased. She might, indeed, have absented herself not in order to help her son commit the murder, but simply because, knowing when and where it was going to happen, she did not wish to be there when it did. It is one thing to wish your husband dead; it is another thing to be there and see it happen. Wanting to get rid of him, as Melba Legrande said she heard the appellant say under the mango tree, would by itself not have been enough to satisfy the requirement of s 7(1)(b) of the Code that she left town with the purpose of helping her son, so as to make her criminally responsible for the murder he carried out.
This leaves for consideration the case presented against the appellant under s 7(1)(d). In the end, the evidence consists of another statement by the appellant to her son, as heard and reported by Josephine Simpson in the course of the conversation, already mentioned, at which Josephine was present. The evidence given by Josephine was that she heard the appellant Doris say to Robert “Oh, Robert, you have to do the old fellow in”. To which Josephine Simpson in giving her evidence on this occasion added “Something like that”. Telling your son to “do the old fellow in”, if what is meant by that is murdering him, amounts to counselling or procuring the commission of that offence. It was identified in the particulars as “verbal encouragement of the plan to kill”. It was not averred that there was a joint plan or conspiracy to kill and this particular must refer to the son’s own plan to kill. The problem is that, for the purpose of sustaining a conviction, the precise words matter a great deal, and Josephine did not appear to be at all sure of what was said on that occasion. She said it was “something like that”. On another version of the statement, which was given in cross-examination, what the appellant was talking about was having her son Robert look after the deceased when she was away. “I want you to stay behind”, she said, and look after the old fellow.
Mackenzie J has subjected this and other evidence to an analysis which exposes its weaknesses. I agree with what his Honour has said on that subject and with his conclusion that the quality of the evidence is not such as to justify a conclusion beyond reasonable doubt that the appellant had counselled or procured her son to murder her husband. That being so, the verdict of guilty returned on that evidence was unsafe or unsatisfactory and the conviction cannot stand. The appeal should be allowed; the verdict and conviction set aside; and verdict and judgment of acquittal of the appellant entered on the count of murder in the indictment.
MACKENZIE J: The appellant and her son, Robert Charles Fred, were jointly tried for murder of the appellant’s husband in the family residence at Mt Garnet. The ground of appeal relied on is that the verdict of the jury was unreasonable and the conviction unsafe and unsatisfactory.
The deceased died as a result of a gun shot wound below his left eye inflicted, probably, in the early hours of Thursday 12 November 1999. It was alleged that the shot was fired by Robert Fred and that the appellant was a party to his offence under s 7 of the Criminal Code.
At the time of the shooting the appellant was away from Mt Garnet, having travelled with her niece, Maxine Grant, to Tully. She had earlier told her sisters that she was ill with a recurring kidney problem and intended to travel to Townsville to see a doctor. Initially she had said that she was going to leave on the Thursday. However, on the evening before the crime was committed the appellant, who was in company with Robert Fred, had encountered Maxine Grant at a time when she was trying to telephone her boyfriend, who had gone to Tully and had not been in contact for a number of days.
During the conversation with Maxine Grant, the appellant seemed to be upset and agitated and said that she had to get out of Mt Garnet. Maxine Grant formed the opinion that she was in no condition to drive herself and volunteered to go with her since they would pass through Tully on the way, enabling her to attempt to contact her boyfriend. Maxine Grant had asked Robert Fred why he could not drive the appellant to Townsville. She was told that he could not and that things would be clearer in the morning. Maxine Grant’s sister lived in Tully and when they arrived, the appellant was invited by her to stay the night. Maxine Grant stayed elsewhere and did not know anything about the accused’s movements after that time. Although there is no evidence that the appellant subsequently went to Townsville there is nothing that suggests that she did not.
During the course of the evening of 11-12 November 1999, shots were heard and the deceased was found, still alive, about 5am the following morning. During the night, Robert Fred had been seen with a rifle and was also seen, then and subsequently, to be suffering from a wound in the region of his left shoulder. Both the deceased and Robert Fred were evacuated by helicopter to Cairns, where the deceased died.
The case has features which cause difficulty. Some relate to the ambit of the prosecution case. Others relate to the evidence. It was not an easy case for the Crown Prosecutor to conduct. It is clear from the opening that the evidence that emerged fell short of what was expected to be given. There were applications to have some witnesses, most of whom were concerned principally with Robert Fred’s case, declared adverse. These foundered because of the inherent unreliability of the witnesses. More relevantly, the evidence of witnesses concerning the case against the appellant, particularly of Josephine Simpson and Melba Legrande, was also problematical.
Particulars of the case against the appellant were given in the following form:
“ The Crown bases its case on section 7(1)(b) and/or (c) and/or (d).
The particulars relied on to establish that liability are as follows:1.Knowledge of the accused Robert Fred’s intention to kill the
deceased.
2. Knowledge that a gun would be used and the type of gun to be used.
3. Knowledge of the impending fabrication of a defence by the accused Robert Fred.
4. Verbal encouragement of the plan to kill.
5. Leaving town at the time prior to the killing taking place.
6. Attempting to suppress the evidence or keep evidence hidden from police.”
It was conceded that there was no evidence supporting par 6 of the particulars. The first three allege knowledge of Robert Fred’s intention to kill the deceased, the means by which it would be done and the impending fabrication of a defence (which involved the infliction of a wound upon himself). There was substantial evidence that the appellant knew of these matters, as will appear later. The issue is whether there was a basis for the finding that she was criminally responsible for the crime that occurred.
A person who becomes aware that another person intends to murder someone does not commit an offence against the Criminal Code merely by failing to notify the police of the intended crime or by failing to take other reasonable steps to prevent its occurrence. The analogous principle applicable under the common law was expressed as follows by Hawkins J in R v Coney (1882) 8 QBD 534, 557:
“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, on non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aides and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime.”
However, where a person has knowledge that an offence is intended to be committed, there may be other facts from which it may be inferred that the person was more than a passive repository of that knowledge and that the person was a party to the offence.
In R v Oberbillig [1989] 1 Qd R 342, 344, Moynihan J, with whom Kelly SPJ and Ryan J agreed, said:
“It is plain from the record that the trial judge’s emphasis on the appellant being party to a plan constituting counselling took its inspiration from the remarks of Philp S.P.J. in R. v. Solomon [1959] Qd.R. 123, 129. That was a case primarily concerned with the consequences of s.23 of The Criminal Code in its relationship to s.7(c) and ss 8 and 9. I should mention that Philp S.P.J.’s views in that respect have not been well received; see Stuart v. The Queen (1976) 134 C.L.R. 426 and Murray v. The Queen [1962] Tas. S.R. 170, 134 and may not express the law as it now stands. In any event, in the course of dealing with the aspect of the matter I have just mentioned Philp S.P.J. said, having referred to s.23 and s.7(d):
‘In this regard it seems to me that when two persons plan to commit a certain offence each counsels and (if the offence be committed) procures the other to commit the offence.’
The remarks were obiter for the reasons I have mentioned. If Philp S.P.J. is to be taken as stating a proposition of law in the remarks I have just set out, and that is to be doubted, I do not accept it. If on the other hand, as I suspect to be the case, he is speaking in an illustrative way his proposition may be unexceptionable. In other words it is for the jury to be satisfied that there was a counselling and in the circumstances of a particular case being party to a plan may be quite capable of founding an inference of counselling.”
Particular 4 was confined to a short piece of conversation alleged to constitute counselling or procuring under s 7(1)(d) of the Code. Particular 5, relating to the appellant’s absenting herself from Mt Garnet on the night of the killing, was alleged to be an act done for the purpose of enabling or aiding Robert Fred to commit the offence, under s 7(1)(b). The evidence relied on to support particulars 4 and 5 came from a conversation between Robert Fred and the appellant about a week before the killing occurred.
Counselling under s 7(1)(d) will ordinarily be proved by direct evidence of a specific act or acts of urging or advising on the part of the person alleged to be a party. However, if there were acceptable evidence that the person had prior knowledge of the details of a plan to do something which subsequently happened in the way described by the person, and the evidence suggested that the person did not disapprove of it in any way, it may, depending on the circumstances, be difficult to escape the inference that the person had counselled the commission of the offence without proof of a specific act of counselling. It would be especially so if there were other acceptable evidence from which it might be inferred that the person did something to enable it to happen. In that way, a circumstantial case of criminal responsibility under s7(1)(d) might be made out as well as liability under s 7(1)(b). The determination of this appeal partly involves issues of this kind.
One of the complications of this case is that there are serious issues concerning adequate proof of acts contemplated in particulars 4 and 5. The remaining particulars allege only knowledge of what Robert Fred intended to do. For reasons that appear later, they were not intended to particularise a circumstantial case based on other facts which might form the foundation of an argument in favour of an inference of counselling rather than mere knowledge. The focus of submissions in the Crown Prosecutor’s address, where something said by the appellant but not particularised as a fact from which it might be inferred that she was a party to the offence, seems to have been the issue of whether she was a party to a plan to kill the victim.
The additional evidence was that the appellant had said, in a conversation in which she detailed her knowledge of the co-accused’s intentions and accurately prophesied what actually happened, that she wanted to get rid of ‘the old fellow’. Further reference will be made to this aspect of the matter later.
To appreciate the nature of the attack on the conviction it is desirable to refer to the evidence given by Josephine Simpson, a sister of the appellant, and the way in which the critical passage relied on as counselling came to be given. The first conversation occurred on an occasion when Josephine Simpson went to the appellant’s home to deliver a telephone message from Damien, another son of the appellant. The Crown Prosecutor elicited from her that she had given the message to the appellant. She was asked whether there was any other conversation and said that there was not. After further questioning, it was elicited that the appellant had said she was going to Townsville on the Thursday after she had collected her pension so that she could see a doctor because her kidney was playing up. The witness was asked whether the appellant mentioned anything about Robert Fred, to which she replied that she had said that Robert had to stay and look after the deceased. She said that the appellant did not say anything else about what Robert was going to do.
The Crown Prosecutor then applied to have the witness declared adverse and a voir dire was conducted. It appeared that the witness had given three statements to the police. The first was on 15 November 1999, four days after the shooting; the second and third were made some days later. After questioning by the Crown Prosecutor had proceeded for some time on the voir dire, the learned trial judge said that he was not convinced that the witness was adverse and that her failure to repeat what was in her statements was probably due to her limited and unrefreshed recollection. It appears that during the luncheon adjournment the witness read at least two of her statements.
From her questioning, it appears that the evidence which the Crown Prosecutor was seeking to lead through the witness included the following:
·Doris said to Robert, “You have to do that job” and Robert said to Doris, “I’m going to do the old fellow in, but I can’t do it with you frigging here.’’?-- Yes.
·Doris said, “I can’t get out because I’ve got no money for petrol. If Damien’s got some, he’ll send it up to me”.
·The witness said she didn’t have any money to give to her.
·Robert said he didn’t have any money to give to her.
·Doris said, “I’ll ring Damien and see if he has some to send up, then”.
·Doris then said to Robert, “You do what you have to do”.
·The witness said to Doris, “What do you got to do”.
·Doris said to her “Get old Bob out of the road”.
The learned trial judge gave a ruling which included the following:
“Having listened to the witness give evidence on the voir dire I am satisfied that she was doing the best she could to make recollection, both in her evidence-in-chief, and in the evidence on the voir dire. I am not satisfied that she should be declared an adverse witness, and therefore subjected to cross-examination by the Crown prosecutor. That is certainly the situation on the material so far before me.
However, it is also clear that her recollection has been improved by being referred to the statements, and by the – her having to now articulate what parts of the conversations occurred on a particular date. What stems from this confusion then is that it is a very difficult situation for the Crown prosecutor to suggest that the plaintiff is making inconsistent statements, even though the written word is inconsistent with her evidence-in-chief because it might well be the case that the written word does not properly set out her true recollection now.
In all the circumstances, it seems to me that the jury is entitled to hear the benefit of her recollection as it is now, and that should be led from the witness in accordance with the ordinary rules.”
The evidence on the voir dire and this ruling were, of course, not before the jury. It is set out as an aid to understanding the problems with Josephine Simpson’s evidence.
When Josephine Simpson resumed her evidence in the presence of the jury she gave the following evidence, of a conversation which she recalled as having occurred about a week before the shooting:
“And did Doris and Robert have a conversation?-- Oh, Doris said – Doris said to Robert, ‘You have to stay with the old fellow.’
All right. Now, I want you to be very careful in telling us the words that Doris and Robert actually used, not what you thought that they meant, but the words that they actually used?—Mmm.
Do you understand that?-- Yeah.
All right. What did Doris say to Robert?-- ‘Oh, Robert, you have to do the old fellow in.’ Something like that.
All right. So, she said, ‘Robert, you’ve got to do the old fellow in’?—Yes.
All right. And what did Robert say to her?-- He said he can’t do it whilst she’s there, or something.
All right. How did Robert seem?-- Oh, he was normal.
Okay?-- Yeah.
Did Robert talk to you?-- No, he only asked me if I want a cup of tea and I said, ‘No.’
All right. Was there more talk?-- No.
Did Doris say anything to Robert?-- No, that’s – that’s all the conversation.
All right. Was there any other conversation then between Doris and Robert about what was going to happen?-- No.
Is there anything else that you can remember that they talked about that day?-- No, that’s all – that’s all I remember, we had. That’s all.
Did you say anything to Doris about what was going to happen?-- Oh, just – I said to her what Robert was gunna do, and she said to him about the old fellow. Mmm.
Sorry? What did you say? What did – you asked-----?-- Doris.
-----Doris?-- Ah – I said – I said to Doris, ‘You gunna ring up to Damien?’ She said, ‘After.’
All right?-- Yeah.
You said before that you said something to Doris, like, ‘What are you going to do about the old fellow?’-- No, I didn’t say that.
Did you say anything to Doris about Bob Smith?-- No.
Did you say anything to Doris about what was going to happen to Bob Smith?—No.
Did she say anything else to you?-- No.
Was there talk about money going – and Doris some money?-- No, I don’t know really about that. But I – I didn’t ask him about that.”
The questioning then moved to a conversation on the day before the shooting, under a mango tree at the home of Esme Grant, involving Josephine Simpson, and Esme Grant and Melba Legrande, other sisters of the appellant. The appellant said that she intended to go to Townsville the following day after she had collected her pension. All of the women present at that time said that she had spoken of going to the doctor because of her kidney and that she appeared and acted as though she was in physical discomfort from it.
According to Josephine Simpson, during the course of the conversation, the appellant had said “Something about ‘Robert gunna hurt himself in the shoulder’, you know like, ... .” The following then transpired: “Alright did she say why Robert was going to hurt himself in the shoulder? ----- She said “make it look” – oh, something about, then like, something like a “accident” but you know. …Did she say how Robert was going to hurt himself in the shoulder? ----- I didn’t hear – I – I just heard her say, “Robert was going to hurt himself in the shoulder”. …Did she say when Robert was going to hurt himself in the shoulder? ----- no I didn’t – see I – I just heard her say that Robert was gunna hurt himself. Did she explain to you why he said that, what that meant? ----- No I didn’t question her that.”
In cross-examination by Robert Fred’s counsel the following evidence was given:
“Now, when you say that Doris mentioned something about having to stay with the old fellow?-- I thought she said that.
Right?-- Mmm.
Now, did you – do you – do you remember the actual words she used or aren’t you too certain as to what she said?-- Hard to be certain, you know.
Yes?-- Be certain, hard to be certain -----
Hard to be certain?-- -----yeah.
Did she say it as a bit of a joke?-- Yeah, you might say that, yeah, but we – I was – we were sort of having a bit of a laugh but, yeah.
What, did she say something like, ‘I should get rid of the old fellow’ or something silly like that or what?-- Yeah, and then we sort of laugh, you know, like we should do that, you know, and just laugh and just joke.”
In cross-examination by the appellant’s trial counsel, the following passage appears:
“Sitting under the mango tree, you say she said something about, ‘Robert’s going to hurt himself in the shoulder’?-- Yes.
Did you actually hear the actual words she used or did you just hear some words and-----?-- Just some words, you know. See, the wind was blowing, I just see her put her hand there, but you know it’s a – bit – the part about Robert and shoot, you know.
So what did you actually hear? Do you remember what you actually heard?-- Well I heard she said Robert was going to shoot himself at the – shoulder.
That’s what you heard?-- Yeah.
Okay, so you heard her say that?-- Yeah.
I mean, didn’t you say, ‘Goodness gracious me’, you know?-- No, we didn’t – didn’t hit us. You know, didn’t hit me at all, you know, what she was talking about, you know.”
A little later the questioning continued
“Now, this morning, you didn’t say anything about Robert going to do the old fellow in, did you?—No.
Why didn’t you tell us about that this morning?-- I didn’t have time to read my statement or anything, you know. I was sort of nervous, can’t remember it, you know.
So is it right really this morning, you couldn’t remember any of these things?-- Yeah, because I hadn’t read my statement then.
I see. Because it’s a long time ago, isn’t it, these things?-- Yes.
So you got a chance, did you, to read your statements?-- Yeah.
So are you now just telling us things that were in your statements?-- Yeah.
Can you really remember any of these things, though?—Here and there, bits and pieces.
Bits and pieces?-- Yeah.
All right. And perhaps about some things you’re a bit confused, are you?-- Yes.”
She was also questioned about the omission of certain evidence from the statement she made four days after the shooting. The following is the relevant passage:
“You couldn’t remember any of these things about Doris and Robert wanting to do the old fellow in you couldn’t remember that?----- No
Or about Robert was going to shoot himself in the shoulder?----- No
Ok. So you’d forgotten all about that?----- Yeah I was sort of in shock and that, mixed up.”
Later in cross-examination the following evidence was given:
“And you were telling us that you thought, that first time when you went to give Doris the message ... you thought Doris was saying that Robert had to look after the old fellow?----- Yeah, that’s what I was thinking.
Might it be that that’s what she really said?--Yeah, that other thing but I think that’s what she said but I was going through the door.
Yes. So she might’ve said that Robert had to look after old Bob?--Yes. And that what you thought?--Yes that’s when I realised that – she would have said, you know -----
Because if she said to you that Robert was going to do old Bob in, if she told you that Robert was going to kill old Bob -----?----- No she didn’t say that no.
... you see, Doris didn’t really say that Robert had to do the old fellow in, did she?--No.”
In concluding cross-examination her trial counsel asked the following series of questions:
“You were sitting out there with the wind blowing?-- Yeah, that day, yeah.
Did that make it hard to hear everything that Doris said?-- Yeah, Yeah.
So, might you be mixed up about some of the things that you say Doris said?-- Yeah.
Because, you see, Doris didn’t tell you that Robert would shoot himself in the shoulder, did she?-- No.
You’re perhaps mixed up about that?-- Yeah, you could say that.
And the same thing with that other talk you were telling us about that was a week before?-- Yeah.
Wasn’t it really that Doris was talking about Robert looking after the old fellow?-- Yah, when she go away, ‘I want you to stay behind’, you know. That day she said, I heard her say he has to stay back and look after the old fellow or – usually call him the old boy-----.”
A little later, there was the following question and answer:
“… You see, Doris didn’t really say that Robert had to do the old fellow in, did she?-- No.”
The Crown Prosecutor tried to retrieve the situation in re-examination. The following evidence was elicited from the witness:
“Now, remember you were being asked questions before about this conversation about Robert doing the old fellow in and you said, when Mr McCreanor was asking you questions, that maybe she was just joking?-- Yeah, we were laughing at that, I remember that now.
So did she actually use those words?-- Yeah, yeah, and we thought it was a joke.
But she actually used the words-----?-- Yeah.
-----‘Robert’s going to do the old fellow in’?-- Yeah, we sort of laughed, you know.
So when you say you’re a bit confused about that, are you just confused about what you might’ve thought she meant?-- What do you mean?
Did you say – you said something before about looking after old Bob?-- Yeah.
But did she say those words?-- I thought, you know, to me; you know, I thought-----
That’s what you thought she meant?-- Yeah, and what I thought, you know, what I was thinking.
But the words that she actually used were what?-- Do the old fellow, the old boy in.
‘Robert’s going to the old fellow in’?-- Yeah, and we sort of laughed.”
...
“And you were also asked questions about whether you could remember this bit about Robert, about Doris saying that Robert was going to shoot himself?-- Yeah.
Can you remember her actually saying that?-- Well, I heard her, she said that Robert was going to shoot himself, because I seen her put her hand to the shoulder.
But she didn’t actually say shoulder, but she put her hand up?-- Yeah, I didn’t ask her.”
It is convenient at this point to summarise briefly the accounts given by the other people present under the mango tree on the afternoon before the shooting. Esme Grant said that the appellant said that the deceased was “going to be blown away”. She demonstrated by reference to Esme Grant’s walking stick the length of the gun that was going to be used. The following questions and answers ensued:
“Did she say anything about young Robert?-- Well she said that there was gunna be an accident, that he was gunna shoot himself. ... and during all that time ... and during all that time I – you know, we sort of tried to ignore her and tried to tell her not to talk silly.
...
You mentioned when I asked you about Doris talking to Robert, I think you said that he was ‘going to shoot himself’, I think were the words you used if I remember correctly. Who was she referring to ‘shooting’ themselves?-- She was referring to the son.
To the son?—mmm
And that’s Robert Fred?-- mmm.
All right. Did she say why he was going to do that?—No.
Did Robert talk to you about how she was going to get to Townsville?-- No he didn’t say much – Doris said that she was going and she said that Robert was staying behind as he wanted to look after the animal ... ”.
There was evidence that they owned dogs. There was evidence that Mrs Grant had suffered a stroke at an earlier time and that in her estimation her memory was “not like it used to be”. She also agreed that when first interviewed by the police she did not tell them anything about “the old fellow getting blown away”. She said “everything was just scrambled in my head. ... at the time I couldn’t, you know, put it all together ... maybe the shock got to me I don’t know”. She also said that she did not tell the police on the second occasion about the “old fellow being blown away”. The first time she mentioned it was on 21 November 1999, in the third statement.
Nevertheless, under cross-examination she maintained that she was “quite certain” that she had been told that “the old fellow was going to get blown away”. Mrs Grant also gave evidence that she thought the appellant mentioned “the young boy” as the person who was going to blow him away. She assumed that that description referred to Robert Fred. Her evidence continued:
“Now, just so that I’ve got this right, did Doris tell you who was going to shoot old Bob, who was going to blow him away?-- I think she mentioned the young boy.
Yes?-- Mmm.
Were you – like, this is your sister talking to you?-- Mmm.
Were you worried that this might happen?-- Well, I was trying to shoosh her up, you know, because-----
Yes?-- -----she has been talking like that ever since I can remember, you know, things like she was going to leave him – and it never happened.
…
“So you never said anything to Robert about it when he came back?-- No, I never said nothing. Maybe I should’ve mentioned it to him, but I don’t believe – it’d blow away, it would clear up, forgotten.
You’d forgotten?-- I thought, you know, in time it would be forgotten, you know, not come to mind again.
I see. Could it be that maybe you didn’t say anything to young Robert because it didn’t really happen, she didn’t really say those things?-- No, I’m fairly sure it happened.”
The other person present during the conversation under the mango tree was Melba Legrande. After giving evidence that the appellant had said she was going to Townsville to see a specialist, she was asked “Did she say anything about what was going to happen?—She just said ... father and son might fight. ... Robert might get shot in the arm.” Later she was asked:
“Anything else that you can remember that Doris talked to you about on that Wednesday before she left?-- No she just she got to go to Townsville. She said she want to get rid of the old fellow, or something like that, making her sick all the time.
And Doris had said that before she left to go to Townsville?-- Making her sick.”
In cross-examination by the appellant’s trial counsel she was asked whether she was worried enough about Robert Fred being shot in the arm to talk to him about it. She said she did not talk to him about it. It was suggested to her that the reason she didn’t talk to him was that Doris didn’t really tell her, to which she replied “Yeah she told me about it.” She was asked “Are you sure?” She said “Yeah”. Curiously, she was not cross-examined about the appellant’s statement that she wanted to get rid of “the old fellow”.
It is apparent from the summary of the evidence that the only person who heard the words upon which the Crown relies as a specific act of counselling and as providing the reason why the appellant’s departure from Mt Garnet was for the purpose of enabling Robert Fred to commit the killing was Josephine Simpson. In the critical passage, she qualified both the critical statements. The statement “Oh Robert, you have to do the old fellow in” was immediately followed by the words “something like that”. It was only in answer to a leading question in re-examination that she might be taken to have said, without qualification, that the words were, “Robert, you’ve got to do the old fellow in”. Similarly, the statement “He can’t do it whilst she’s there”, attributed to Robert, was also qualified by the words “or something”. With regard to the former it is difficult to accept, in view of the qualification and the quality of her evidence generally, that the jury could have been satisfied beyond reasonable doubt that the words relied on as an incriminatory statement were said in the form alleged. When the circumstance that neither of the other women present during the conversation gave evidence that it was said is taken into account, the concern is greater.
It is undoubtedly true that a jury has an advantage in a case of this kind since it can see the witnesses and, in particular, assess the way in which they have given evidence. The problem in this case is that, whether due to forgetfulness caused by the shock of the killing, a desire to assist her sister, cultural reasons, or gratuitous concurrence, the witness has given a variety of versions of the conversation. No-one else heard the critical words or words like them. Even her evidence is not wholly self-consistent concerning them. In addition the evidence at its highest did not commit her to saying that they were the exact words used, except to the limited extent that her assent to a leading question in re-examination has evidentiary weight. In the result it was unsafe for the jury to rely on the accuracy of Josephine Simpson’s evidence.
With regard to the evidence relied on by the Crown to prove the appellant was a party because she did an act, namely, leaving Mt Garnet for the purpose of enabling Robert Fred to commit the offence, the same problems with Josephine Simpson’s evidence exist. There is no other evidence that the killing by Robert Fred was contingent on her absenting herself. Further, Maxine Grant’s evidence bearing on the decision of the appellant to leave Townsville on the Wednesday night rather than the Thursday after she had collected her pension has already been summarised. There was also evidence that during the early evening of the Wednesday, Mr Dwyer made an arrangement to pick up the deceased the following morning at about 5am to go somewhere to do some work together. The evidence is silent as to the duration of the victim’s absence from his home. Mr Dwyer, on arriving to pick him up, saw Robert Fred lying in the carport driveway and located the deceased inside the house.
Mr Dwyer’s evidence was not relied on as evidence explaining the urgency displayed by the appellant in wishing to leave town that night rather than next day. The Crown Prosecutor said in her address that the urgency to leave became greater “for some unknown reason”.
There is a substantial body of evidence that the appellant had suffered from a kidney complaint and that, to her sisters, she gave the appearance of being in discomfort from it on the afternoon before the shooting. She had expressed an intention to go to Townsville the next day for treatment. It is true that the evidence of Maxine Grant is to the effect that she appeared to her not to be sick but to be agitated and wanting to leave Mt Garnet as soon as possible. Although it was not pressed, presumably since the defence case was that her desire to get medical treatment caused her to leave, there was also a possibility, on the evidence as it emerged, which had to be excluded, that she was aware of what Robert Fred intended to do without assenting to it and simply did not wish to be present when the event occurred. If that were the situation, absenting herself would not necessarily be an act done for the purpose of enabling the commission of the offence.
An explanation of this kind would ordinarily be treated with a degree of scepticism. However, in this case, the Crown called a witness, Mrs Beeron, whom the prosecutor expected to say that in the preceding September, Robert Fred, who lived away from Mt Garnet and only returned occasionally, had said “When I go back to Mt Garnet, I’m going to do my dad over”. Although opened, this evidence was not admitted after intervention by the learned trial judge, discussion of whether it was too remote to admit against Robert Fred and renunciation by the appellant’s trial counsel of any tactical reasons for it to be admitted to assist her. This evidence would not have been conclusive of whether or not the appellant shared Robert Fred’s intention or later found out about it and adhered to a plan to bring it about. But, at least, it shows that Robert Fred may have harboured an intention to harm the victim at a time when there is no evidence that the appellant was involved.
The troubling aspect of the case is that the appellant clearly knew in advance that a chain of events consistent with what happened was likely to happen. There was evidence that she displayed a sense of urgency about leaving town on the evening of the killing even to the extent of attempting to accelerate her departure. As against this there was evidence that she apparently intended to be away from Mt Garnet for some time. Why it was necessary to leave urgently to enable the killing to occur that night is not explained on the evidence. It is not easily reconcilable with the apparent likelihood of an extended period of opportunity for Robert Fred to effect the killing at any time while she was away. The evidence does not suggest that the victim was going to be accessible only on the night of the killing. This leaves a lurking concern that the appellant’s agitated urgency about accelerating her departure, if Maxine Grant’s observations of her were correct, is not inconsistent with Robert Fred dictating that he was going to kill his father on that night, leaving her in the position that if she did not wish to be there when it happened, she had to leave urgently.
The conclusion reached to this point is that the jury could not safely act on Josephine Simpson’s evidence to convict. It is not a case where something can be salvaged from the vital elements of her evidence, since they were not corroborated by either of her sisters. One further difficulty is that there can be no assurance that the verdict of guilty was not reached on her evidence alone. A retrial can only be ordered if there is some other viable case based on the remainder of the evidence of other witnesses, leaving Josephine Simpson’s evidence out of consideration.
The particularisation of the basis of the appellant’s criminal responsibility rested on one statement of the appellant’s and Robert Fred’s response, set in the context of her prior knowledge of what ultimately happened. The evidence of Melba Legrande that the appellant told her that she wanted to get rid of the old fellow, or something like that, was not particularised in isolation or as an element of a circumstantial case. In the circumstances, the basis upon which the matter was left to the jury requires investigation.
Before addresses commenced, counsel and the learned trial judge gave consideration to the basis of the case against the appellant. Much of the discussion focused on whether s 7(1)(c) provided a basis of liability (which the learned trial judge ruled against) and on admissibility of things said by one accused against the other. When the trial next resumed, the Crown Prosecutor said that she was only relying on the statement by the appellant and Robert Fred’s response to the effect that Robert had to do the old fellow in but he would not do it while she was there as evidence of counselling.
In the Crown Prosecutor’s address, she explained that it was necessary to look at what the appellant said and did prior to the shooting. She said that the prosecution case was that the appellant not only knew that the shooting was going to happen but that she was a party to “some agreement between herself and Robert Fred” to have the victim killed. She then proceeded to make submissions about Josephine Simpson’s evidence. She addressed the possibility that it would be suggested that, at most, the conversation showed that the appellant knew that the victim was going to be killed. She said that the prosecution alleged that the conversation showed “more than knowledge”. It showed that “she was involved in this agreement and acted in a way that encouraged Robert Fred to do the shooting and did things that helped or facilitated the commission of the crime, and that the detail of her knowledge of what was going to happen also reflects her own involvement in this plan”.
She then proceeded to refer to Esme Grant’s evidence that the appellant told her that the victim was going to be blown away, her demonstration of the size of the weapon and the conversation about Robert shooting himself. She also referred to Melba Legrande’s evidence that the appellant had said there might be a fight between father and son and Robert Fred might get shot in the arm, and that she wanted to get rid of the old fellow, or something like that, because he was making her sick all the time.
The Crown Prosecutor then moved on to the timing of her leaving town and the apparent increased urgency of doing so. She linked this to Josephine Simpson’s evidence that Robert Fred had said that he would not do it while the appellant was there and suggested that it was “part of the plan that she had to be out of town when Robert Fred killed his father”. She submitted that the timing and manner of her departure was more sinister than simply trying to drive to Townsville to get medical treatment.
She submitted that the fact that the appellant predicted, the day before, what actually happened and the sisters’ reaction to her statements as silly talk made it difficult for the defence to submit that they were mistaken or confused about what the appellant had told them. It was submitted that the statements were not just a “general idle threat” that she was sick of her husband and was going to get rid of him one day, but one that occurred in the context of talk revealing “intimate details of the plan to kill, how he would be killed and the cover up”. She submitted that the question for the jury was whether it amounted to the appellant confiding in her sisters that there was a plan and her involvement in it, or whether it was just an unhappy coincidence for her that what she had said was going to happen, did happen.
Reading the Crown Prosecutor’s address leaves the impression that the jury was being asked to take into account the counselling alleged to be constituted by the appellant saying to Robert Fred, in the presence of Josephine Simpson, something like “you have to get rid of the old fellow”, and Robert Fred saying something to the effect that he would not do it while she was there, and the fact that the appellant left Mr Garnet with a sense of more urgency than she originally conveyed to her sisters. This is the evidence relied on to prove particulars 4 and 5.
The jury was also asked to consider the state of the appellant’s knowledge (described broadly in particulars 1 to 3). In addition to this, the Crown Prosecutor reminded the jury of the statement to Melba Legrand that she wanted to get rid of the old man because he was making her sick. This does not fall comfortably within any of the particularised matters but seems to have been introduced with a view to inviting the jury to draw an inference that the appellant was a party to a plan with Robert Fred to commit the offence, with the issue of counselling being determined by reference to Josephine Simpson’s evidence.
In his address the appellant’s trial counsel said that, as he understood the prosecution case, ss 7(1)(b) and (d) were alleged to be the basis of criminal responsibility. What had to be proved was, firstly, that Robert Fred murdered his father and, secondly, that the appellant counselled or procured him to do so and/or did something for the purpose of aiding or enabling him to do it. He submitted that the fragment of conversation in which Josephine Simpson said the appellant said to Robert Fred that he had to get rid of the old fellow was the basis of the case under s 7(1)(d). If the jury did not accept that the appellant said it, it was necessary to proceed on some other basis.
He addressed the evidence of the other two sisters including Melba Legrand’s evidence that the appellant had said something about getting rid of the old fellow because he was making her sick all the time. He reminded the jury that nobody else had made any reference to a comment of that kind even thought they were present during the conversation. The thrust of his submissions was that there were some common elements concerning the content of the conversations, but the versions of what the appellant said in other respects were totally different. He also addressed the evidence relevant to s 7(1)(b).
In his summing-up the learned trial judge directed the jury that the evidence of Josephine Simpson that the appellant said to Robert Fred that he had to do the old fellow in was the only evidence relied on by the prosecution to prove counselling. When dealing specifically with the case against the appellant, he repeated that the prosecution relied on that conversation as evidence of counselling and that the trip to Townsville was, at least in part, for the purpose of enabling Robert Fred to do the shooting.
It should be noted that in dealing with the defence submissions the learned trial judge said that common features of the accounts were that Robert Fred might end up with a shoulder injury and that Doris intended to go to Townsville. He then said “There was a common feature between the two sisters, other than Josephine, about getting rid of (the victim)”. This seems not precisely accurate. Esme Grant said that the appellant said that the victim was going to be blown away. Melba Legrand said that the appellant said that she wanted to get rid of the victim because he was making her sick. The first is a statement as to what the appellant believed would happen in the future. The second is at best a statement as to her own state of mind. However, nothing turns on that for present purposes.
The evidence of Josephine Simpson cannot safely be relied on. The remaining evidence which, in conjunction with the evidence of her state of knowledge of the details of the crime, might tend to circumstantially prove counselling by her comprises the words, said to Melba Legrande, to the effect that she wanted to get rid of the victim. The evidence concerning the conversation in which the words were allegedly said is that the appellant and her three sisters were all present. There are common elements in the three versions but neither of Melba Legrand’s other two sisters gave evidence of the critical statement or anything resembling it. Further, Melba Legrande’s version of it was given only in indirect speech and was qualified by the words “or something like that”. In addition, her evidence fell short of what was opened. There was no application to have her declared adverse. Given the outcome of the other applications to have witnesses declared adverse, the possibility of her prior statement becoming evidence of its truth in further proceedings by virtue of s 101 of the Evidence Act 1977 is remote.
The prosecution did not frame its case on the basis that the combination of the appellant’s foreknowledge of what happened and her statement to Melba Legrande proved circumstantially that she had counselled Robert Fred to kill the victim. While it is a matter of judgment, in my opinion this evidence is not of a quality which would satisfactorily allow an inference of guilt on that basis to be drawn beyond reasonable doubt.
While there are grounds for suspicion about the extent to which the appellant was involved in the death of the victim, the numerous unsatisfactory features of the case as it emerged require the conclusion to be drawn that the conviction was unsafe and unsatisfactory and must be quashed and that no new trial be ordered.
MULLINS J: I agree with the reasons for judgment of McPherson JA and Mackenzie J and the orders proposed.
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