R v Henry

[1992] QCA 336

COURT OF APPEAL

[1992] QCA 336

MACROSSAN CJ McPHERSON JA MOYNIHAN J

CA No 166 of 1992

THE QUEEN

v.

KEVIN ALLAN HENRY	Appellant
CA No 147 of 1992
THE QUEEN
v.
MARGARET JOAN BOB	Applicant
CA No 160 of 1992
THE QUEEN
v.
SUSAN LESLIE ALBURY	Applicant
BRISBANE ..DATE 11/09/92 JUDGMENT

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THE CHIEF JUSTICE: I shall ask Mr Justice McPherson to deliver his reasons first.

McPHERSON JA: Kevin Henry appeals against his conviction for rape and murder of Linda Leidig. The alleged offences took place on about 31 August 1991 at Rockhampton. On the following day, the naked body of the deceased woman was found floating in the Fitzroy River. Medical evidence was that she had died from drowning, but that prior head injuries she had sustained contributed to her death.

She was apparently unconscious when she was put into the river. It was alleged that the head injuries were sustained in a brutal assault or series of assaults carried out by women who are applicants before us for leave to appeal against sentence. The deceased was considered by those women to have been at fault in having sexual relations with a man who was regarded by those women, or one of them, as belonging to one of their number.

The appellant was arrested for drunkenness on the afternoon of 1 September. He was placed in a cell at the watch-house together with 2 other men, Colin Booth and Lyle Barnes, who were also facing charges of drunkenness. While they were all in the cell, Constable Farrell of the watch-house activated a recording device

which recorded conversations that followed among those 3 men.

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In the course of those conversations, the accused can, it is said, be heard saying of the deceased woman, "I threw her in.” It was an audio and video recording, which was admitted in evidence and played to the jury. The sole ground of the appeal against conviction is that the recording, or the admissions it contained, should not have been admitted in evidence.

Three reasons for this were advanced on appeal. One is that the prejudicial effect of the evidence outweighed its probative value. This basis of objection does not in terms seem to have been advanced at the trial. But, in any event, it is futile. There is no consideration of unfairness, or otherwise, that would dictate exclusion from evidence of the recording or recorded conversations in this case. And, in so far as the conversation contains admissions by the appellant, the statement "I threw her in" has a probative value that is plainly very strong indeed.

The second basis of complaint is that the tape recording is of very poor quality; that is to say, that the conversation or conversations recorded on the recording are indistinct. This objection was advanced at the trial, and was considered by the learned trial Judge. His Honour listened to the tape himself, or to those parts of it that are relevant.

Having done so, he said this:

“Having listened to that recording, it is certainly by no means a clear recording. However, it is possible

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to hear some words which may constitute an admission of Henry's involvement in the death of Mrs Leidig. The material is then relevant to the issue. It is not in any way anything other than a voluntary statement, and consequently it should, in the ordinary course of things, be placed before the jury. The difficulty here lies in the fact that it is not readily intelligible. However, it seems to me that that becomes a matter then for the jury to determine, whether they can hear any things which are meaningful to them. That seems to me clearly to be the law that is now applied in relation to recordings. I cannot see that there is any reason for excluding the tape, excluding the playing of the tape, on the basis of the exercise of my discretion."

I think the tape could be treated as inadmissible for the reason suggested only if the quality of the sounds it recorded were so bad that there was a real risk of the jury having to use guesswork to arrive at what was said. This was evidently not the case here. Counsel for the parties on this appeal have listened to the tape and confirm that it is possible to make out the critical words relied on by the Crown.

It should also be added that at the trial a superior form of playing device was provided that enabled a better quality of sound to be produced for the jury than is available to counsel or the Court on appeal. His Honour, in any event, warned the jury about the dangers or difficulties that the tape presented. He said, speaking to the jury:

"Would you find it helpful to have that replayed again? Obviously we cannot keep replaying it indefinitely and if in the end you do not have any clear understanding, well, of course you cannot act on it. But it is material for you to assess so if we start again about where we were before."

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Nothing can really be made of this point when the matters I have mentioned are all taken into consideration.

The other basis of objection to the tape is perhaps more serious.
It is founded on section 46(1) of the Invasion of Privacy Act
1971. That subsection provides, in effect, that evidence of a
private conversation may not be given by a person to whose
knowledge it has come. Section 46(2)(a) says that subsection (1)
does not render such evidence inadmissible if a party to the
conversation consents to that person giving evidence. In this
instance both Booth and Barnes were parties to the conversation.
They gave evidence and it may perhaps be thought that they

thereby consented within the meaning of section 46(2)(a) of the

Act.

It is not, however, necessary to decide that point because another basis on which the evidence of the conversation may be admissible also exists. This depends on the definition in section 4 of the Act of the expression "private conversation". The concluding portion of that definition says that the expression "private conversation":

“... does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person not being a person who has the consent, express or implied, of either of those persons to do so."

The critical words in this collocation are "in circumstances in

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which either of those persons ought reasonably to expect the words may be overheard". It is to be noticed that the section does not say "will be overheard' or "must be overheard".

In the present case the conversation, as I have already said, took place in a cell in the watch-house. His Honour considered the question of whether the conversation was, in the circumstances "private" within the meaning of the definition to which I have referred and came to the conclusion that it was not.

He said:

“Can it be said that a conversation between persons in a cell at the watch-house falls within that definition of a private conversation? The witness, Barnes, says that he had noticed the camera in the cell. However, that, in itself, is only one circumstance. The critical question is whether the accused ought reasonably to expect that the words may be overheard, recorded, monitored or listened to by some other person."

His Honour then went on:

“While the watch-house ought to be a place of security, it is not a place of sanctuary and it does not seem to me that inmates there can reasonably expect that officers in and around the watch-house will not listen to things that are being said. Consequently, on the material, I doubt very much that this is a situation where there was a private conversation involved."

It ought perhaps to be said by way of explanation, if I have not already mentioned it, that there was a camera in the cell, and it seems that the existence of the device, by means of which the conversation was recorded and the parties could be watched, was attributable to the danger of persons in the cell doing

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themselves some harm.

The question presented to His Honour was advanced before him as one of fact for him to decide in the light of the provisions of the section.

There has not been any challenge to the facts leading to the conclusion reached by His Honour, and it seems to me that, for that reason and because of the circumstances as they are disclosed by what His Honour said, that it is not possible to find that the conclusion reached by the learned Judge was incorrect.

The point is, it must be recalled, that the section refers to a reasonable expectation that the words may be overheard. In the circumstances one would think it was obvious to anyone who found himself in a cell that what he said might be overheard by the police who were in charge of that place.

Much will in many cases depend on the particular character of the cell, and of the attention being given to it by those whose task it is to guard it; but there is nothing in this case to suggest that His Honour was incorrect in finding that the persons involved in the conversation might reasonably expect to have been overheard.

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In those circumstances, I do not think that it is possible to fault the admission of the tape recording of that conversation on the basis advanced before us on appeal. That being so, it follows that the conversation was not "private" within the meaning of the definition, and that the third basis, as I have called it, of complaint against the admission of the damaging statement by the accused must fail. In the circumstances, it necessarily also follows that the appeal against conviction cannot succeed, and I would dismiss it.

There are, however, appeals against sentence, or more accurately, applications for leave to appeal against sentence by three of the individuals involved in this case. The first is the appellant, Henry, himself. He was sentenced to life imprisonment for murder; that sentence being mandatory, it is not possible for him to complain about it. But he was also sentenced to a term of 15 years' imprisonment in respect of the charge of rape of which he was also found guilty.

His Honour's reasons for imposing a sentence of that dimension appear sufficiently in what he said at p 612 of the record. What he said was that the facts were that "you watched Linda Leidig being beaten until she was apparently unconscious. You saw that she was bleeding to the face and the head and that she had some object embedded in her perineum. You removed that object, you dragged her 40 metres down over stone and grass. There you raped

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her. It is difficult to imagine more horrendous circumstances in which a man could commit rape upon a woman, and I sentence you to 15 years' imprisonment".

The circumstances that, it is plain from those remarks, particularly impressed themselves upon His Honour were that the appellant Henry was himself a witness of the particularly violent assault that was carried out on this woman; that he saw that she was disabled and seriously injured by it; and that, far from doing anything to assist her, he then took advantage of her wretched state to carry out the rape of which he was convicted. The sentence of 15 years is considerable, but not, in my view, so extensive as to call for intervention by this Court.

I turn now to the other two individual applicants. They are the woman Margaret Bob, and the woman Susan Albury, both of whom participated in the assault leading to the injuries which preceded the rape and, ultimately, murder of this woman. It is necessary in considering what they did to put out of one's mind the fact that the final consequence of all of this was that the unfortunate woman was murdered. It nevertheless is a case in which when one looks at the nature of the assaults carried out, it is proper to remark upon the seriousness of what was done.

In the case of Margaret Bob, she was originally charged with two counts of occasioning bodily harm, and one of grievous bodily

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harm. However, it seems that on the day of the trial she pleaded guilty to the first of those two charges, that is to say, to the two charges of assault occasioning bodily harm. The Crown then elected not to proceed with respect to the other and more serious charge of doing grievous bodily harm.

His Honour described her part in these events in the following terms:

"It is sufficient to say that you left her lying on the ground, bleeding, with both eyes blackened, her mouth lacerated inside - inside both lips, bruises and abrasions around her head, bleeding inside the brain between the membranes, bruising across the arms and the body. She had been struck blows with fists, a piece of wood. She had been kicked, and she had been jumped on. You were a party to that, and it doesn't seem to me possible to distinguish between the three of you as to who inflicted which particular injury. You were also charged jointly with the other women in respect of the other injury."

That was, however, the matter as to which she was not convicted, or sentenced by His Honour.

When one has regard to the serious nature of the injuries that this unfortunate woman sustained, and to the actions taken by those involved in the assault in producing the injuries, it is, in my view, simply not possible to say that sentences of three years' imprisonment in respect of the two charges of assault occasioning bodily harm are excessive. The injuries were serious. In the case of the applicant Margaret Bob, she also had a previous conviction for unlawful wounding, although it was one that took place, as I understand it, in the domestic context.

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What is also said on her behalf on this application is that no significant discount was allowed for the plea of guilty which she made at an admittedly late stage on the morning of the trial. His Honour took that factor into account, remarking however that, " It does not seem to me that a plea as late as that warrants any significant discount, but rather you have got your discount by avoiding trial in respect of the second charge, which was in nature the more horrendous, and consequently the one that was likely to attract a higher penalty."

The reference in that regard is to the third charge of doing grievous bodily harm, and what I understand His Honour to be saying is that, by pleading to the first two counts, the applicant succeeded in avoiding the risk of conviction in respect of the third and more serious count. I think that in this way he sufficiently took account of the plea of guilty, coming as late as it did, and that no basis in that regard can be seen for interfering with the sentence.

In short, I would in respect of this application for leave to appeal, refuse the application and not permit her to appeal against sentence.

I turn then to the case of Albury. Susan Albury's participation in this affair may be described, in general terms, as similar to that of Margaret Bob. It is unnecessary for me to repeat all of

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what His Honour has said with respect to this applicant. He said that it was Susan Albury and Amy Saunders and Maggie Bob who inflicted these injuries, adding, "There may have been others who gave a push or a shove, but those three were the ones who inflicted the injuries and caused the consequences which I described in relating what was done by Margaret Bob." In this instance, the sentences imposed were, in respect of the two charges of occasioning bodily harm, three years each to be served concurrently; and in respect of the further count of grievous bodily harm, four years' imprisonment.

It is necessary that I should say a little more about that offence. The charge of grievous bodily harm related to an injury sustained by the deceased woman between the anus and the vagina.

An object of some kind was thrust into her person at that point. One would think that would be something that would cause very great injury. In dealing with this aspect of the matter, His Honour said it was a very repulsive thing to have done, and that the first reaction that might be expected from thinking people would be that a very savage sentence was called for. He went on, however, to take account of medical evidence to the effect that the actual injury, although constituting grievous bodily harm, was almost certainly one which could have been treated without any serious consequence to the woman if the other events had not supervened. By the other events he evidently meant to refer to the rape and the ultimate murder of Linda Leidig for which Kevin

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Henry was responsible. In the result he sentenced Susan Albury to four years' imprisonment in respect of that particular offence.

The most that can be said, as Mr Nase on her behalf frankly acknowledged, is that she is a woman of 29 years of age with three children and a limited criminal history. Her unhappy condition seems to be the result of excessive intoxication. One can have some sympathy with her for that state of affairs, but it is not a sympathy that extends to allowing her to escape the consequences of carrying out these very serious acts causing personal injury to the unfortunate woman Leidig in the circumstances I have described.

In respect, therefore, of that application I would again refuse the application for leave to appeal against sentence.

THE CHIEF JUSTICE: I agree.

MOYNIHAN J: So do I.

THE CHIEF JUSTICE: The order of the Court then is that the appeal against conviction is dismissed and the applications for leave to appeal against sentence are refused.

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