R v Heyes & Wilson
[2003] VSC 426
•7 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1437 of 2003
| THE QUEEN |
| v |
| MARK ANDREW HEYES & HEATHCLIFF JONATHAN WILSON |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August - 19 September 2003 | |
DATE OF RULINGS: | Various | |
DATE OF REASONS: | 7 November 2003 | |
CASE MAY BE CITED AS: | R v Heyes & Wilson | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 426 | |
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Criminal Law - Ruling - Application for separate trial refused - no risk of injustice not amenable to nullification by direction - Application for jury discharge - no high degree of need - Post-offence conduct assessed - items to be, or not to be, left to jury as going to consciousness of guilt
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Office of Public Prosecutions |
| For the Accused Heyes | Mr P. Morrissey | Simon English & Ass |
| For the Accused Wilson | Mr W. Toohey | C&H Lawyers |
HIS HONOUR:
These are the reasons that I said that I would provide for rulings made during the trial of the two accused, Mark Heyes and Heathcliff Wilson on a charge of the murder of Raymond Thomas on 25 June 2002. I declined to make an order for separate trials of the two accused. I declined to discharge the jury after oral testimony emerged that was potentially prejudicial to Wilson. I ruled that I would permit the prosecution to rely upon some items of after events conduct, but not others.
The body of the deceased was found at 2 Ferntree Court, Ferntree Gully on 25 June 2002. He had sustained multiple blunt trauma injuries and stab wounds. The killing occurred within a family setting. The deceased was the second son of Sheryl Thomas (“Sheryl”). Heathcliff Wilson (“Wilson”) is her first son. Rebeccah Thomas (“Rebeccah”) is her only daughter. Mark Heyes (“Heyes”) was the fiancee of, and living with, Rebeccah in June 2002.
The deceased, as a teenager, came to use and abuse alcohol and illegal drugs. He was nearly 6 years older than Rebeccah. Over a period of about 2 years, when Rebeccah was aged 8 to 10, the deceased raped her. Wilson and the deceased subsequently moved out of the family home. Wilson moved interstate, initially to Queensland. After Sheryl separated from her husband, who was the father of the deceased and Rebeccah but not Wilson, she moved into a house at 2 Ferntree Court, Ferntree Gully. The deceased was invited by Sheryl to live at that address, and he moved in. From an early stage, his behaviour towards Sheryl and Rebeccah was offensive. It worsened as time passed. After an incident of particular violence directed at Sheryl, two or so years before June 2002, Rebeccah moved out. For some months she lived in New Zealand. During the incident that sparked Rebeccah to leave, Sheryl learned of the deceased’s earlier rapes of Rebeccah. Over the ensuing period, the abuse of drugs and alcohol by the deceased worsened, as did his attitude to Sheryl. Threats and intimidation by the deceased were standard. At times there were minor assaults. After Rebeccah returned from New Zealand, she met Heyes. They lived together at 1429 Ferntree Gully Road, Scoresby (“1429”). Sheryl continued to live with the deceased at 2 Ferntree Court. She elected to put up with his threats and intimidation. From time to time, Sheryl told Rebeccah and Heyes about the deceased’s conduct towards her.
In early June 2002, Sheryl arranged to pay for Wilson, whom she had not seen for nine or more years, to come to Melbourne. He stayed at 1429. At 1429, there were discussions, involving Sheryl and Rebeccah and Heyes and Wilson about the deceased, including about his earlier rapes of Rebeccah, and about his physical and mental abuse of Sheryl.
On the evening of Monday 24 June 2002, Sheryl had dinner at 1429, then took a taxi home to 2 Ferntree Court. There, she encountered the deceased in a bad mood. She minimised her contact with him. Sheryl telephoned Rebeccah, and spoke in unfavourable terms about the deceased. Rebeccah put her own interpretation on what was said and how it was said. She thought it was a form of coded plea for help. She became concerned as to her mother’s welfare. She voiced her concerns to each of Heyes and Wilson. They became concerned. Rebeccah tried to telephone Sheryl to seek an assurance that she was alright. She was unable to get through to speak to Sheryl. That increased her concerns as to Sheryl’s welfare, and as to the potential ill treatment of Sheryl by the deceased. Heyes and Wilson decided to go to 2 Ferntree Court. They took with them a mattock handle and a knife. The primary prosecution case was that Heyes and Wilson went there to kill the deceased. The alternative case was that they went to rescue Sheryl, but formed murderous intent while there.
Around 2 a.m., on Tuesday 25 June 2002, at 2 Ferntree Court, the deceased opened the door at the request of Wilson. Within a short time, the deceased had had inflicted on him injuries that were to prove fatal. Wilson received blows to his arm and back, apparently unintentionally inflicted by the mattock handle wielded by Heyes. Sheryl went with the two men from 2 Ferntree Court to 1429 in the car of Heyes. The mattock handle with blood on it went in the car. It was hidden under the house at 1429 with the assistance of Rebeccah.
At 1429, there was talk as to how to handle the finding of the body of the deceased, and as to what was to be told to the police. Wilson wanted the others to make no reference to his being involved at all. Rebeccah claimed that certain threats were made by Wilson in the course of those discussions. A measure of agreement was arrived at. The finding of the body was to be effected by Sheryl getting a taxi to 2 Ferntree Court between 7.30 and 8 a.m. Sheryl was to elicit surprise at finding the body. The police were then to be told certain lies. Wilson was not to be referred to. Each of the three, other than Wilson, was to provide an alibi for the other. It was agreed that the police were to be told that Sheryl had spent most of the night at 1429, after having been taken there from 2 Ferntree Court around 10 p.m..
The arm injury suffered by Wilson at 2 Ferntree Court from the blow with the mattock handle wielded by Heyes needed attention. Heyes worked as a security guard. At times he worked at the William Angliss Hospital. Heyes chose not to go to that hospital but to the Maroondah Hospital to seek attention for Wilson. At the Maroondah Hospital, Wilson acted in an aggressive way towards, and assaulted, another patient. Heyes intervened trying to achieve a peaceful resolution. His action was misunderstood, and he sustained a bite to his arm. Later in the morning, Heyes drove Wilson to Richmond, dropped him there and headed home.
Just before 8 a.m., as agreed, Sheryl took the taxi from 1429 to 2 Ferntree Court. The apparently surprise finding by her of the body of the deceased was the spur for a call to the police. Later in the morning, a statement was prepared with the police by each of Sheryl and Rebeccah. There was relative consistency in the misleading information provided. It was along the lines earlier agreed. Shortly before 11 a.m., the police spoke to Heyes. He gave an account to the police that included the lies that had earlier been agreed. He added some elaboration of his own. He made no mention of Wilson. The police obtained his consent to inspect his car. The car contained indications of the presence of blood. Heyes was arrested. Sheryl and Rebeccah were further interviewed. Both then accepted that there had been parts of the earlier statements that were incorrect. Heyes was formally interviewed by the police. He provided a second account. The second account differed from the first account. In the second account, Heyes agreed that he had had a role in the killing of the deceased. He said that Wilson was also present at 2 Ferntree Court, but in a minor role. In the second account, Heyes spoke of matters that were consistent with his having struck the deceased with a mattock handle in defence of himself.
The police interviewed Sheryl and Rebeccah Thomas formally at the Homicide Squad office. The police then drove them back to 1429. No keys to get in were available. A police officer got in through a window, and opened the laundry door to permit other police officers to enter. A heap of clothes and a doona were spread over the laundry floor. It was only on return to the laundry that a police officer noted that Wilson was lying on the floor, substantially covered by the doona. He had very obviously and untidily cut off most of his hair. He explained why he had done so. He was arrested and interviewed. He gave an account to the police that seemed to the police to be consistent with the crime scene evidence. He admitted having consumed much in the way of alcohol and drugs. He admitted having stabbed the deceased. He spoke of the deceased having, before that, abused him and assaulted him.
Mr Toohey, who appeared for Wilson, applied before the trial began for an order to be made for separate trials. That application was made after I had, as to a number of areas of evidence, indicated that in my assessment, the probative value was outweighed by the potential for prejudice. One such area was as to the events that occurred at the Maroondah Hospital. The second was as to evidence that the Crown sought to lead from Rebeccah as to threats she said had been made by Wilson relative to his being kept out of the accounts given to the police by the other three. The third was as to aspects of how the police had acted immediately prior to the arrest of Wilson, when they located him in the laundry at 1429. The fourth related to adverse comments made by Heyes in the recorded interview with the police about Wilson’s previous gang and prison experiences.
The position as to that fourth area was quickly sorted out when I was told that there was no evidence that Wilson had ever been in prison before the events of June 2002. The position as to the other three areas was affected by the position taken by Mr Morrissey, who appeared for Heyes. I indicated that the Crown could lead restricted evidence as to them. I indicated the character of the restrictions, which were aimed at permitting evidence as to context, while minimising the potential for prejudice. Mr Morrissey indicated that the position of Heyes would depend upon how the evidence unfolded. He said that Heyes had given two accounts that could be seen to contain lies. The explanation for his having done so included that he had been fearful of Wilson. Any evidence that provided support for that fear being understandable was relevant.
Mr Toohey, in submitting that Wilson should have a separate trial, argued that the introduction of evidence as to matters tending to prove that Wilson was a man to be feared was unduly prejudicial. R v Demirok (1976) VR 244, R v Gibb and McKenzie (1983) 2 VR 939, R v Webb (1994) 122 ALR 41 and R v Vollmer [1996] 1 VR 95 are relevant authorities. I have taken from Webb at 69 through Deane J and at 76 by Toohey J, certain basic propositions. Prima facie, persons charged with committing an offence jointly ought to be tried together. It is desirable to place the whole picture before the jury. Administrative factors point to joint trials, as does the desirability of avoiding inconsistent verdicts. Where a joint trial proceeds, the risks to one accused from the admission of evidence not admissible on a separate trial must be obviated by express and careful directions to the jury as to the use of evidence concerning each accused. An assessment had to be made as to whether the extent of the potential prejudice to Wilson from evidence not admissible against him being led, might be such as to create a risk of injustice that would not be amenable to nullification by judicial direction. This is not a case where what would be required of the jury are the remarkable mental feats such as were seen to be required in Gibb and McKenzie. I was well satisfied that the jury could understand and apply appropriate directions, and accordingly that it was not necessary to order separate trials.
There were two occasions in the course of the trial when applications were made by Mr Toohey for a discharge of the jury. When Sheryl gave her testimony, she spoke of what she heard Wilson say when he was wanting to have the deceased let him in to 2 Ferntree Court. She said she heard Wilson say: “It’s me bro. I am out of prison.” It was submitted to me that the emergence of that evidence warranted the discharge of the jury, even though steps might be taken to address the potential for prejudice. Later in the trial, a police officer, named Robinson, gave a non-responsive answer to a question as to entry to 1429 on the occasion when Wilson was found inside. He was asked how the police went about getting into 1429. He included in what he answered that Sheryl and Rebeccah had indicated a fear that Wilson might be inside. I could only speculate as to why that comment was included. It may have been some form of self-justification, or some form of vindictiveness, or just something he thought to say on the spur of the moment. It had the potential to be seen as a suggestion of some form of discreditable conduct on the part of Wilson. Although it had the potential to create prejudice, my opinion was that the jury could be warned to ignore that part of the answer, and could be expected to abide by such a warning. There was not the high degree of need required for a discharge of the jury.
Before the final addresses of counsel, I requested that Ms Williams specify those items of conduct on the part of one or both of Heyes or Wilson after the death of the deceased which the prosecution sought to rely on as evidence of consciousness of guilt. I then sought submissions from each of Ms Williams, Mr Morrissey and Mr Toohey as to what items were capable of being left to the jury. From the authorities to which I will turn shortly, it is clear that the trial judge must make an independent review of the evidence to make a particular kind of assessment of it.
Ms Williams nominated nine items, four as to Heyes, five as to Wilson. Mr Morrissey submitted that none of the four as to Heyes were capable of being left to the jury. Mr Toohey did likewise as to the five as to Wilson. I ruled that four of the nine items were not to be left to the jury. As to Heyes, the item that I ruled against was as to his alleged deliberate choice to go to Maroondah Hospital and not the William Angliss Hospital. As to Wilson, there were three items. The first was as to his alleged threats to other family members to leave him out. The second was as to his alleged hiding under a doona and clothes in the laundry at 1429. The third was as to his cutting his hair. I ruled that the Prosecution could go to the jury on other items. Put shortly, they were, as to Hayes, his conduct in agreeing to provide a false story to police, his lies at the initial questioning by police and his lies during the recorded interview, and as to Wilson, his alleged agreeing to provide a false story to police and his alleged assisting to hid the mattock handle.
It is appropriate that I briefly state my reasons. It is not an occasion for a detailed review of the authorities to which I have had regard. I list in alphabetical order some of those authorities in this heavily traversed ground: R v Burrows [2003] VSCA 130; R v Cako, unreported VCCA, 11 May 1989; R v Chang [2003] VSCA 149; Dhanhoa v The Queen [2203] HCA 40; Edwards v The Queen (1993) 178 CLR 40; R v Heyde (1990) 20 NSWLR 234; R v Lewis [2001] 1 VR 290; R v Morgan, unreported VCA, 13 August 1996; R v Nguyen (2001) VR 118; R v Peavoy (1997) 117 CCC (3d) 226; R v Renzella [1997] 2 VR 88; R v Rice [1996] 2 VR 406; R v Toia (1982) 1 NZLR 555; R v Woolley (1989) 42 A Crim R 418; and Zoneff v The Queen (2000) 74 ALJR 895.
Mr Morrissey submitted to me that I should follow the Canadian case of Peavoy. There, it was said that where the after-the-fact conduct did not make it more likely that murder was committed as opposed to manslaughter, the conduct could not be used as proof of intent to commit murder. I have treated myself as bound by what was said in Cako, Woolley, Rice and Burrows not to take that course. But I also decided to give directions as to after events conduct after directions as to murder and before directions as to manslaughter.
A number of the cases refer to the very important distinction relative to lies, between lies going to credibility and lies going to consciousness of guilt. The distinction is referred to, and examples are given, in each of Toia, Heyde, Renzella and Dhanhoa. Much less the focus of attention has been the distinction, relative to conduct other than lies, between conduct which does go to consciousness of guilt and conduct which does not.
In that regard, I have noted what was said in Cutajar, where the focus was on evidence of alleged flight. The trial judge had posed as part of the test, for assessing whether the conduct could be relied on as consciousness of guilt, whether the probative value outweighed the prejudicial effect. The Court of Criminal Appeal endorsed that approach.
A trial where consciousness of guilt evidence is not a focus of the attention of the jury is likely to be simpler that one than a trial where such evidence is a focus of attention. In that respect there is always at least a small but significant degree of prejudicial effect. In my experience, counsel for an accused, when asked for submissions as to such evidence, will almost invariably argue against any item being presented in that way by the prosecution. That situation is to be contrasted with the position so often adopted on the hearing of an appeal when the same question is debated.
Making assessments of probative value is an everyday exercise. It is an area where there will be differences in the assessments for a number of reasons, including the source of the item, the reliability of that source if it is a witness, and how it stands relative to other evidence.
Having made an assessment of the probative value of any specific item of evidence of post-offence conduct, the trial judge must then assess whether there is a real danger that the jury may apply to that item a particular process of reasoning, namely that the conduct warranted an inference adverse to the accused as to an element of the offence. Specifically as to an alleged lie, it would be to reason that the lie reflected a knowledge on the part of the accused that telling the truth would implicate the accused in the commission of the offence. In framing the test, in that way, I have adapted what was said by Gleeson CJ and Hayne J in Dhanhoa at para 34.
In this case, I made my assessment of the probative value of each aspect of post-offence conduct including those specified by Ms Williams. I first satisfied myself that there were no other matters of post-offence conduct beyond those sought to be raised by Ms Williams as to which I needed to direct the jury. Put in other words, I was satisfied that this was not a case where aspects of the evidence had raised other matters as to which there was a risk of the jury jumping to inappropriate conclusions without appropriate guidance. See Nguyen, Dhanhoa and Chang.
I ruled that I was not satisfied that certain items had the necessary capacity to be raised by the prosecution as matters going to consciousness of guilt. Adapting the words used in Dhanhoa at para 29, there was only a very flimsy basis for any argument as to consciousness of guilt. That was based on my assessment of the low probative value of the evidence as to: the alleged lie of Heyes as to his reason for his choosing to go to one hospital rather than another; the alleged threat by Wilson to Rebeccah; the choice by Wilson to cut his hair; and the choice by Wilson to lie on the laundry floor under clothes and a doona. As to the other matters, my assessment of probative value was that they were matters properly to be left to the jury.
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