R v Haklar-McCarthy; R v Summerill - [2017] SASCFC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAKLAR-MCCARTHY; R v SUMMERILL
[2017] SASCFC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)
29 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - FAILURE TO FULFIL UNDERTAKING TO PROVIDE ASSISTANCE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Following pleas of guilty, the respondents were each convicted of one count of assisting an offender who had committed murder, and sentenced to a period of imprisonment, the length of which was reduced on account of their pleas and their cooperation. This cooperation included an agreement with the Director of Public Prosecutions to give truthful evidence in the trial for murder of the accused individual that they had assisted, Mr McCarthy.
At trial in 2014 the respondents gave evidence consistent with their police interviews, and Mr McCarthy was convicted of murder. After successfully appealing his conviction, Mr McCarthy was re-tried in October 2016. The appellant (the Director) contends that at the re-trial, the respondents only provided limited recollections of the circumstances of the murder, and these varied in a number of respects from the versions of events they had given in the trial in 2014. Mr McCarthy was acquitted of murder but convicted of manslaughter.
The Director appeals on the grounds that both of the respondents failed to give truthful evidence at the re-trial and, as such, their reduced sentences were imposed on an incorrect basis. The applications for permissions to appeal were brought out of time and, thus, the Director also seeks an extension of time within which to bring the applications.
Held per Doyle J (Vanstone J agreeing):
1.       The time within which the appeals may be filed is extended, permission to appeal is granted, and the appeals are allowed.
2.       The respondents breached their obligations to give truthful evidence, and did so in material respects. As such, error has been established in the basis upon which the respondents’ sentences were imposed (in that they were imposed upon the erroneous factual assumption that they would cooperate by giving truthful evidence), and the sentences should be considered afresh by the Court.
3.       Ms Haklar-McCarthy is resentenced to a head sentence of two years 10 months imprisonment, with a non-parole period of 20 months.
4.       Ms Summerill is resentenced to a head sentences of two years two months imprisonment, with a non-parole period of 15 months.
5.       Both sentences are to be suspended upon entry by the respondents into bonds to be of good behaviour for a further two years.
Per Kelly J (in dissent):
1.       While the respondents gave deliberately untruthful evidence in material respects, this does not overcome the delay of the Director…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] SASCFC 129
Decision Date: 29 September 2017

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Vanstone, Kelly, and Doyle JJ, considered appeals by the Crown against the sentences imposed on respondents R v Haklar-McCarthy and R v Summerill. The appeals were brought out of time, necessitating applications for extensions of time. The underlying dispute concerned the respondents' failure to fulfil an undertaking to provide truthful evidence against Patrick McCarthy and Bradley Fowler, following their own guilty pleas to assisting an offender.

The central legal issues before the Court were whether to grant extensions of time for the Crown's appeals, whether to grant permission to appeal, and whether the sentences imposed were manifestly inadequate, particularly in light of the respondents' failure to comply with their agreement to cooperate and give truthful evidence. This agreement was a crucial element of the plea bargain that led to the respondents pleading guilty to assisting an offender, in satisfaction of murder charges.

The Court reasoned that the respondents' evidence at Patrick McCarthy's retrial was deliberately untruthful in material respects, deviating significantly from their earlier detailed accounts. Specifically, Ms Summerill's evidence at the retrial omitted key inculpatory details, such as her earlier recollection of Mr McCarthy holding a cloth over Mr Varehov's mouth and her inability to recall seeing Mr McCarthy hurting or touching Mr Varehov, which was a stark contrast to her prior clear account. The Court found these omissions, when considered with other variations, indicated a deliberate attempt to lessen the inculpatory effect of her evidence. Despite the prosecutor not applying to have Ms Summerill declared hostile at the retrial, the Court concluded that the evidence presented demonstrated a failure to fulfil the undertaking to provide truthful evidence.

The Court allowed the applications for extensions of time and granted permission to appeal. It found that the sentences imposed were manifestly inadequate, given the respondents' breach of their undertaking to cooperate and provide truthful evidence, which was a fundamental basis for the Crown accepting their pleas to lesser charges. The Court therefore allowed the appeals and remitted the matters for re-sentencing.

Orders

Orders of the court

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Background

Background to the litigation

The applications for permission to appeal in respect of both respondents were brought out of time, and hence require extensions of time. However, before addressing the issues of whether it is appropriate to extend time and grant permission to appeal, and the allegation that they failed to comply with their promises to give truthful evidence, it is convenient to commence by summarising the factual background to the sentences imposed upon the respondents.Background In the early hours of Friday, 8 June 2012, Mr Patrick McCarthy assaulted and killed Mr Michael Varehov in the garage of a premises at McAllan Avenue, Beaumont. Both respondents were present in the premises at the time Mr Varehov was killed. Soon after his death, both women left the premises in a Peugeot vehicle with Mr Varehov’s body in the boot. They drove the vehicle a short distance before abandoning it. Mr McCarthy remained at the premises to clean up the scene of the assault. It was alleged that later in the day Mr McCarthy and Mr Bradley Fowler buried Mr Varehov in a shallow grave in the Kuitpo Forest. Mr McCarthy was arrested on 8 June 2012 and charged with assault. On 10 June 2012, after Mr Varehov’s body had been found, Mr McCarthy was charged with murder. Ms Haklar-McCarthy and Ms Summerill were subsequently charged with murder, on 18 October 2012 and 30 November 2012 respectively. It was alleged that they had lured Mr Varehov to the premises under a false pretence to enable Mr McCarthy to assault or kill him. Mr Fowler was charged with assisting an offender. The joint trial of Mr McCarthy, Ms Haklar-McCarthy, Ms Summerill, and Mr Fowler was scheduled to commence in November 2014. On 3 November 2014, Ms Haklar-McCarthy and Ms Summerill, through their counsel, indicated a preparedness to give evidence against Mr McCarthy. They were both interviewed that day by the police, and gave detailed accounts of the events leading to the death of Mr Varehov. As a result of the information provided in those interviews, the prosecution agreed to lay a fresh information, charging the respondents with assisting an offender contrary to s 241(1) of the CLCA. The particulars of the offence were that on 8 June 2012, at Beaumont and other places, knowing or believing that Patrick McCarthy had committed an offence, namely murder, the respondents did acts with the intention of assisting him to escape apprehension. On 6 November 2014 the respondents pleaded guilty, accepting that, knowing that Mr McCarthy had murdered Mr Varehov, they committed the offence by driving Mr Varehov’s body away from the scene of the crime; by providing information to Mr Fowler and Mr Thomas about the location of the Peugeot, knowing that they would take steps to further dispose of the body; and by lying to the police on the evening of 8 June 2012 about the events of that morning. The prosecution accepted these pleas of guilty in full satisfaction of the charges of murder against the respondents, but on the basis of an agreement by the respondents “to cooperate with prosecuting authorities, and to give truthful evidence at the trial/s of Patrick McCarthy and Bradley Fowler.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Turning to what Ms Summerill saw when she and Ms Haklar-McCarthy were called back down to the garage by Mr McCarthy, when proofed by the prosecution on 4 October 2016, only two weeks prior to giving evidence at Mr McCarthy’s retrial, Ms Summerill said she recalled Mr McCarthy holding the cloth over Mr Varehov’s mouth. However, when giving evidence at the retrial, Ms Summerill claimed virtually no recollection of the events in the garage. She claimed not to recall seeing any liquid on the floor in the garage, or smelling anything. Most significantly, she initially said that she could not remember seeing Mr McCarthy or Mr Varehov; that she had tried blocking it out. While she later acknowledged seeing Mr McCarthy and Mr Varehov “at the side of the back of the car at some point”, she said she could not recall whether Mr Varehov was standing, sitting or lying. She could not remember seeing his face. Critically, she gave evidence that she did not remember seeing Mr McCarthy hurting or touching Mr Varehov.Consideration There are several significant differences between the version of events given by Ms Summerill in her 2014 interview and evidence, and her evidence at the 2016 retrial. The differences extend beyond mere differences in detail that one might naturally expect given the passage of time. Ms Summerill’s 2016 evidence omitted key aspects of her earlier version of events, and did so on topics where that tended to lessen the inculpatory effect of her evidence. Ms Summerill’s inability to recall anything of Mr McCarthy hurting or touching Mr Varehov, assessed against her earlier ability to give a clear and detailed account of Mr McCarthy asphyxiating Mr Varehov, is the most stark example. By itself this omission would be difficult to explain as other than a deliberate attempt to lessen the inculpatory effect of her evidence; however, when considered in the context of the other variations in her evidence, it is clear to me that her evidence at the 2016 retrial was deliberately untruthful in material respects. During her evidence in chief at the 2016 retrial, when she claimed difficulty in remembering what occurred, the prosecutor sought permission from the trial judge for Ms Summerill to refresh her memory from her 2014 record of interview or statement. The trial judge declined this application at the stage it was made. When the trial judge later invited further submissions on this topic, the prosecutor responded that he thought “we may have gone past that”, but indicted he would consider his position. The prosecutor did not ultimately pursue any application either that Ms Summerill be permitted to refresh her memory, or that she be declared hostile. Ms Summerill’s counsel now contends that it is significant in the context of the present appeal that the prosecutor did not make any application at the trial to have Ms Summerill declared hostile. He claims that this supports the view that the prosecutor at the time formed a view that Ms Summerill was having trouble with her memory rather than deliberately lying; and that this is consistent with the trial judge’s observation that Ms Summerill “is a difficult witness. She plainly has difficulties with her memory …”.