R v Heyward & Minter - [2010] SASCFC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEYWARD & MINTER
[2010] SASCFC 38
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Bleby)
28 September 2010
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
Appeal against conviction for murder - appellant Heyward interviewed without being cautioned - Judge excluded these interviews - subsequent interviews conducted where appropriate warnings and cautions given - Judge admitted these interviews - Judge excluded those parts of subsequent admitted interviews that referred to excluded interviews - whether Judge should have excluded subsequent interviews entirely - whether trial rendered unfair by admission of subsequent interviews - ground of appeal rejected.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
Appellant Heyward complained about Judge's directions on topic of circumstantial evidence - whether Judge failed to put defence case adequately - whether Judge should have reminded jury of reasons why they might not accept certain pieces of evidence - whether Judge should have said something to jury about the competing inferences to be drawn from the circumstantial evidence - whether any prejudice suffered because of Judge's incorrect categorisation of some evidence - grounds of appeal rejected.

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES - GENERALLY
Appellant Heyward submitted that Judge erred in failing to direct or warn jury to exercise caution in relying on evidence of co-accused Minter to draw an inference adverse to him - whether Judge should have given an accomplice warning - no basis for suggesting that items of evidence in question were given for purpose of serving co-accused's own interest - application for permission to appeal granted - ground of appeal rejected.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appellant Heyward contended that combined effect of grounds of appeal rendered jury’s verdict unsafe and unsatisfactory – ground of appeal rejected – appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Appeal against conviction for murder – appellant Minter contended that publication of a newspaper article required discharge of jury – prosecutor gave an interview to a weekly newspaper published throughout the State in which the prosecutor made some general criticisms of the trial process and the law of evidence – interview published during trial – whether Judge should have discharged the jury – application for permission to appeal refused.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
Appellant Minter contended that Judge’s directions on topic of intoxication were inadequate – whether it was enough for Judge to tell jury to bear a piece of evidence in mind – whether Judge should have told jury how to bear the piece of evidence in mind – application for permission to appeal refused.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - GENERALLY
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - VOLUNTARINESS - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - INDUCEMENT - GENERALLY
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - INDUCEMENT - OTHER MATTERS NOT CONSTITUTING INDUCEMENT
Appellant Minter interviewed by police after arrest – appellant Minter made some admissions during interviews – whether will so overborne that admissions were not made in the exercise of a free choice to remain silent – whether admission of interviews made trial unfair – whether admissions obtained by impropriety – whether Judge should have excluded admissions – whether inducement offered – whether inducements held out by police as persons in authority – whether external pressure caused admissions – whether police conducted interviews unfairly – whether conduct of police amounted to a subversion of right to silence – ground of appeal rejected.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appellant Minter contended that combined effect of grounds of appeal rendered jury’s verdict unsafe and unsatisfactory – ground of appeal rejected – appeal dismissed.
Pollard v The Queen (1992) 176 CLR 177; R v Amad [1962] VR 545; R v Su and Goerlitz (2003) 7 VR 13, distinguished.
Webb v The Queen (1994) 181 CLR 41; The King v Lee (1950) 82 CLR 133; R v Dixon; R v Smith (1992) 28 NSWLR 215, discussed.
McDermott v The King (1948) 76 CLR 501; R v Swaffield (1998) 192 CLR 159; The Queen v Geesing (1985) 38 SASR 226, considered.

R v HEYWARD & MINTER
[2010] SASCFC 38
Court of Criminal Appeal: Doyle CJ, Duggan and Bleby JJ

DOYLE CJ: Matthew Heyward and Jeremy Minter appeal against their conviction for the murder of Glenys Heyward, the mother of Matthew Heyward.
Matthew Heyward argues that the trial Judge should not have admitted evidence of two interviews conducted by the police; that the Judge failed to put the defence case fairly and adequately to the jury; and that the Judge put significant aspects of the defence case to the jury in a misleading manner. For these reasons, he submits there has been a miscarriage of justice.
Mr Minter complains that the trial Judge should not have admitted evidence of two interviews conducted by the police; that the trial Judge should have discharged the jury because of certain material published in a newspaper during the trial; that the Judge’s directions to the jury on the effect on Mr Minter of drugs taken by him were inadequate; and that the Judge failed to put his case fairly and adequately to the jury. For these reasons, Mr Minter submits that there has been a miscarriage of justice.
I will outline the case at trial before considering the submissions.
The issues at trial
Glenys Heyward was the de facto wife of Neil Heyward for more than 20 years. They had two sons, Matthew Heyward (almost 23 years old at trial) and Thomas Heyward (almost 27 years old at trial). The Heywards were a farming family. They owned several properties in the vicinity of Mount Gambier. These properties were in the name of Neil Heyward or in the joint names of Neil Heyward and Glenys Heyward. Mr Minter worked for Neil Heyward as a farmhand. He was 28 years old at trial.
There is no doubt that Neil Heyward murdered Glenys Heyward in a brutal manner on 23 July 2007, or shortly thereafter. He was charged with murder but committed suicide before he was tried. There is no doubt now that Matthew Heyward and Mr Minter were involved in events that led to the killing. There is no suggestion that either of them did the act that killed Glenys Heyward, or that either of them was present when Neil Heyward killed her. The issue at trial was whether they were guilty of murder on the basis that each of them, through their separate involvement, assisted Neil Heyward in the lead up to the killing of Glenys Heyward, knowing that he intended to kill her or to cause her serious harm. That is, their state of mind was the central issue. The prosecution case was based on a joint enterprise.
There is no complaint about the Judge’s directions as to liability on the basis of joint enterprise.
When Matthew Heyward came to give evidence, he admitted an involvement in the events leading up to the death of Glenys Heyward, but denied that he had any knowledge that Neil Heyward intended to kill her or to cause her serious harm. The same applies to Mr Minter.
The case against Matthew Heyward was a circumstantial case. Once he had given his evidence, the real dispute was as to his state of mind. The main complaint by Matthew Heyward is based on the manner in which the Judge summarised the circumstantial evidence, and how he described it. In particular, Matthew Heyward complains that the Judge described as “really not in dispute” some significant parts of the prosecution circumstantial case, when, it is submitted, they were hotly disputed.
The case against Mr Minter was supported by circumstantial evidence, but really rested on statements made by him to two undercover police officers, and on later statements made in the course of interviews conducted by the police during the two days after his arrest. Again, when he gave evidence he admitted an involvement in events leading up to the death of Glenys Heyward. The main issue was whether he knew that Neil Heyward planned to kill Glenys Heyward or to cause her serious harm.
The case at trial
The evidence established that Neil Heyward mistreated Glenys Heyward, and dominated her and his two sons. The evidence was that he treated Glenys Heyward brutally in the early years of their relationship. There does not appear to have been any evidence of significant brutality in the later years of their relationship, although there was evidence that she lived in great fear of him. The evidence was that Glenys Heyward was unhappy, and tried to commit suicide on at least one occasion. By early 2006 she had made the decision to leave Neil Heyward. She left him in November 2006. Neil Heyward immediately froze bank accounts to which Glenys Heyward had access, and set up a new partnership with Thomas Heyward. No doubt his intention was to deny Glenys Heyward access to partnership funds or property.
Matthew Heyward had left the farm about March 2006, and was living and working in Mount Gambier with his girlfriend. On some weekends he worked on the farm.
The evidence was that after she left Neil Heyward, Glenys Heyward continued to live in fear of him. She lived and worked at various places in the Mount Gambier district, but took precautions to conceal her whereabouts from Neil Heyward and from her sons.
Glenys Heyward first consulted solicitors in about July 2005. In due course she made a claim under the De Facto Relationships Act 1996 (SA) for an amount of about $2m, based on an estimate that the farming properties were worth about $6m. That offer was rejected by Neil Heyward. The prosecution evidence suggested that the relationship between Thomas Heyward and Glenys Heyward became “tense” because her claim threatened the family properties, and if it were to be admitted it would probably result in the sale of properties and in Thomas Heyward losing his employment on the farm. Needless to say, the claim was unacceptable to Neil Heyward.
The prosecution case was that as 2007 unfolded Neil Heyward was very angry, and determined to block Glenys Heyward’s claim. Evidence was given of two or three conversations with different people in which Neil Heyward asked the other person if he knew anybody who would kill Glenys Heyward, or anybody who could “get rid of somebody”.
About April 2007 Neil Heyward asked Mr Minter if he knew anybody who could help him get rid of his wife. Mr Minter made some enquiries without any success. The prosecution argued that from this time Mr Minter knew that Neil Heyward wanted to and intended to kill Glenys Heyward.
There was evidence that Neil Heyward was trying to find Glenys Heyward. There was evidence of him, and his sons, going to or telephoning the place where she was working, but without making contact with her.
It appears that Matthew Heyward learned where Glenys Heyward was living. The prosecution case was that Glenys Heyward loved and trusted Matthew Heyward. When he spoke to people at the place where she was living, she agreed to see him. He visited her on 14 July 2007.
On 17 July 2007 Glenys Heyward told her solicitor that she was going to visit Matthew Heyward in Mount Gambier on 23 July. The prosecution suggested that he invited her on 14 July.
Glenys Heyward told a friend that she was going to stay with her son in Mount Gambier on 23 July, and arranged to meet that friend on 24 July. By now she was in a relationship with Mr Sigston, and she told him about the visit.
The prosecution case, as opened, was that Matthew Heyward invited his mother to visit him at the prompting of Neil Heyward. The prosecution argued that Neil Heyward and his sons knew that Glenys Heyward would never agree to meet with Neil Heyward, nor tell him of her movements. The prosecution argued that the invitation was part of a plan, conceived by Neil Heyward, to lure Glenys Heyward to her death.
When Matthew Heyward gave evidence he agreed that he made the arrangement to meet his mother at his father’s request. He said his father told him where his mother was living, and that his father wanted to talk to her about the property claim without solicitors being present. He did not tell his mother that the plan was for her to meet Neil Heyward because his father had said that she would contact her solicitor who would tell her not to go.
On 18 July he told his father about the proposed visit by his mother.
About this time Neil Heyward asked a friend, Mr Hancock, if he could use a house that Mr Hancock owned at Pick Avenue Mount Gambier. It was not occupied at the time.
On 21 July Matthew Heyward again told his father that Glenys Heyward would be visiting him on 23 July. His father asked him to bring Glenys Heyward to the house at Pick Avenue on the evening of 23 July for a meeting. Neil Heyward said that he would leave the back door open and the lights on. He told Matthew Heyward not to tell his mother about the proposed meeting. He said to say that Matthew Heyward and his girlfriend were thinking about buying the house, and that he wanted his mother to look at it.
Matthew Heyward gave evidence that on the evening of 22 July he confirmed to his father that his mother was coming to visit the following day. She arrived about 6.00 pm.
The prosecution case was that Neil Heyward at some stage enlisted Mr Minter to go with him to Pick Avenue to help him restrain Glenys Heyward to the extent necessary. When Mr Minter gave evidence he agreed that on 23 July Neil Heyward asked him to go with him to help him, but his evidence was that he merely thought that Neil Heyward wanted to talk to her. He said he had no idea of an intention to kill or harm Mrs Heyward. He was not sure what sort of help he was meant to give. They travelled in a tray truck that Neil Heyward had borrowed from Mr Hancock.
Matthew Heyward agreed in evidence that he took his mother to the house at Pick Avenue as arranged. They walked into the house into an “open area”, and then Neil Heyward came through a doorway. His mother said “What are you doing here Neil?”, and he replied “Look, Glenys, all I want to do is talk to you”. Matthew Heyward looked at his mother and asked if she would stay and talk with his father, and she said she would. He then left and drove home.
The prosecution case laid some emphasis on him leaving her there, not arranging to pick her up, and not going back to see if she wanted a lift home. Matthew Heyward said he assumed he would get a phone call to pick her up, or that his father would drop her back at Matthew’s house.
He never saw his mother again. On 26 July his father told him that he had killed Glenys Heyward. His father warned him that if he told the police, he would be implicated in her death. For this reason, and because he feared his father, he told lies to the police about the movements of Glenys Heyward. After a lengthy police investigation her body was found on 30 November 2007, buried in a pit on a property in Victoria, just across the South Australian border.
A controversial issue at trial was whether Matthew Heyward was aware that Mr Minter was in the house also. He denied that. The prosecution case was that when Matthew Heyward entered the house with his mother he must have seen, and did see, Mr Minter as Mr Minter came through the doorway behind Neil Heyward. The prosecution argued that Matthew Heyward knew that Mr Minter would be there, and knew that he was there to help Neil Heyward restrain Glenys Heyward with a view to killing her. This was part of the plan to which Matthew Heyward was a party.
The prosecution case was also that the jury should infer that Matthew Heyward knew that his mother would not return to stay at his house in Mount Gambier that night. This argument was based on some circumstantial evidence. This was said to be further evidence that Matthew Heyward knew that Neil Heyward was not planning a discussion but the killing of Glenys Heyward.
The prosecution also led evidence about a woman’s jacket found in a street a few days later. The prosecution argued that it was put there by Matthew Heyward to lay a false trail, supporting a possibility that Glenys Heyward had been abducted by someone.
In evidence Matthew Heyward said that his father told him on 26 July 2007 that he had killed Glenys Heyward. He was shocked by this news. His father told him to tell the police that she had gone to Melbourne for a couple of weeks. His father warned him that he could be implicated in the killing. He feared that if his father had killed his mother, his father could do anything. His father made a similar threat on 9 August 2007.
The prosecution relied on a number of lies that Matthew Heyward told the police, once they began to investigate the disappearance of Glenys Heyward.
Mr Minter’s evidence was that he and Mr Heyward were waiting in a bathroom in the house. Shortly after Mrs Heyward came through the back door, Neil Heyward walked out of the bathroom, and he followed him. At this stage he believed that Neil Heyward simply wanted to talk to her.
Mr Minter said that he was a regular user of cannabis. He said that on 23 July he was affected by the consumption of cannabis that day. He was not thinking clearly, was not alert, and did not fully appreciate what was going on. He said that this had affected his memory as well.
Mr Minter had given a number of different versions of events before trial. Evidence was given by a hotel bouncer to whom he spoke in early August, describing his role in events. Between 24 October and 22 November he spoke to two undercover police officers, and described his involvement to them. Evidence was also led of several interviews conducted by the police after he was arrested.
Mr Minter’s statements about his role in the events varied from conversation to conversation. Some of his statements were equivocal about whether Matthew Heyward came to the house or would have seen Mr Minter there. The effect of his evidence at trial was that the jury could infer that Matthew Heyward must have seen him there, before Matthew Heyward left. In evidence he said that in earlier conversations he had told lies, raising a doubt as to whether Matthew Heyward was there or whether Matthew Heyward would have seen him, because he did not want to get Matthew Heyward into trouble.

In his evidence Mr Minter continued to claim that he thought that Neil Heyward wanted to talk to Glenys Heyward. He said that when Neil Heyward emerged from the bathroom and said he wanted to talk, Glenys Heyward declined. Neil Heyward grabbed her, they struggled and both fell to the floor. Mr Minter grabbed hold of Glenys Heyward from behind to restrain her. He sat her up, still holding her. She was screaming. At various times he and Neil Heyward tried to cover her mouth. Then Neil Heyward kicked her in the face. It must have been a solid blow.
He said that he continued to restrain her, but she had stopped screaming. Neil Heyward went to the tray truck in which they had arrived, and returned with some old iron shackles that Mr Minter had seen in the tray truck on the way there. Neil Heyward shackled Glenys Heyward at the wrists, tied her ankles with a leather strap, and tied the wrist shackles to the leather strap. He also gagged Glenys Heyward. These items were later found with the body. Neil Heyward then brought in a wheelie bin, and Mr Minter helped put Glenys Heyward into it, and then put the bin into the back of the tray truck in which they had travelled. He said that he still thought that Neil Heyward was going to take her to a quieter place to talk to her. They drove off.
Neil Heyward drove to a property out of Mount Gambier. Thomas Heyward was waiting there. He drove Mr Minter home. Mr Minter said that because Matthew Heyward and Thomas Heyward were involved, he did not think that Glenys Heyward would be seriously harmed.
Neil Heyward then must have driven to another property owned by Mr Hancock. He killed Glenys Heyward, put her body in a pit on that property, and filled it in.
The police began making enquiries from 27 July 2007.
On 27 July 2007 Matthew Heyward told a police officer that his mother had visited him on 23 July 2007. He said that his mother was to be picked up by someone and planned to travel to Melbourne or Broken Hill. She waited outside the house and left between 10.00 pm and 11.00 pm. He said much the same when interviewed on 9 August 2007 and 16 August 2007. He said nothing about taking his mother to Pick Avenue. He said in evidence that he told lies to the police because his father made him think that he had no choice.
At trial he maintained that he loved his mother, would never harm her, and had no idea when he took her to Pick Avenue that any harm would come to her.
In early August 2007 Mr Minter got into a conversation with a crowd controller at a local hotel. He told the crowd controller that he had killed Glenys Heyward for a payment of $3,000. He said he had shot her. There is no evidence that she was shot.
In October 2007 two undercover police officers made the acquaintance of Mr Minter. He made various admissions to them on 12 November and 16 November 2007. He admitted his involvement at Pick Avenue.
He said that Neil Heyward drove him to Mount Gambier to a house; that they waited there; that Neil Heyward’s son brought Glenys Heyward to the house, pretending he was going to buy it; that as soon as they walked in Neil Heyward grabbed her; and that the son who brought her (the younger son) walked out as soon as Neil Heyward grabbed her. The statement to the undercover agent as to the son walking out as soon as Neil Heyward grabbed her was not admissible against Matthew Heyward. The Judge directed the jury accordingly. He then described briefly what was done to Glenys Heyward.
On 23 November the police arrested Mr Minter. He made further admissions in interviews on 24 November 2007 and 25 November 2007.
At trial his defence was that Neil Heyward, when he enlisted his help, did not talk of kidnapping Glenys Heyward or doing any harm to her. He explained a number of his admissions by saying that he was affected by drugs or was confused at the time. He said he did not know that Neil Heyward had a wheelie bin with him on 23 July until he brought it into the house. He had no reason to think that any harm was going to come to Glenys Heyward. This was reinforced by the fact that Matthew Heyward brought her to the house. Even when things started to happen he thought Glenys Heyward was going to be transported to another place for further discussions.
On 25 November 2007 Mr Hancock went to the police and led them to the pit on his property. Glenys Heyward’s body was found there on 30 November 2007. Mr Hancock said he did not go to the police sooner because he thought Neil Heyward was “setting him up”.
Matthew Heyward was arrested on 30 November 2007. Neil Heyward was arrested on 2 December 2007.
Matthew Heyward – Ground 1
Ground 1 raises a complaint that the Judge erred in admitting evidence of interviews conducted by the police on 9 August 2007 and 16 August 2007 (the admitted interviews). Ms Powell QC, counsel for Matthew Heyward, submits that the Judge should have excluded these interviews on the grounds that their admission made the trial unfair, or on the ground that the evidence was obtained improperly and should be excluded on the ground of public policy. To understand the submission it is necessary to revisit the facts.
The trial Judge admitted evidence of a telephone conversation between Matthew Heyward and a detective that took place about 1.00 pm on 27 July. In this conversation Matthew Heyward said that Glenys Heyward had spent the evening with him at his house in Mount Gambier on 23 July, that she had talked about making a trip to Melbourne or Broken Hill, that she had spoken to an unknown person on the telephone, and that she left his house between 10.00 pm and 11.00 pm, saying that she would return to collect her car and some belongings left at the house in a couple of weeks. There was no objection to this evidence. It cannot be suggested that this lie was in any way prompted by or attributable to the conduct of the police.
A police officer had a further conversation with Matthew Heyward about 5.00 pm that day. He was interviewed formally about 10.00 pm that night, and again on 29 July. No caution was given on these occasions. The police said that the matter was still a missing person inquiry. The Judge excluded evidence of each of these interviews on the ground that Matthew Heyward had become “a person of interest”, although not a suspect, and a caution should have been given, particularly in the case of the second and third conversations which were formal records of interview: R v Heyward & Minter (unreported, 22 April 2010) at [7].
The Judge admitted evidence of police interviews on 9 August 2007 and 16 August 2007. Appropriate cautions and warnings were given. The Judge described them as “clear and extensive”. The Judge viewed the film of the interviews. He was satisfied that Matthew Heyward participated in these interviews voluntarily. The Judge excluded those parts of the admitted interviews that made reference to the excluded interviews, and those parts that “indicated disbelief by the interviewing officers”. The exclusions were substantial.
The Judge noted that in the admitted interviews Matthew Heyward made no admissions. Nor were any made in the excluded interviews. The prosecution relied on what Matthew Heyward said about his movements on 23 July as evidence of lies by him.
Ms Powell submits that in the excluded interviews the police obtained a good understanding of what Matthew Heyward would say if questioned further. He had repeated the lie told to police on 27 July 2007 in the conversation that the Judge admitted. Ms Powell submits that Matthew Heyward was at a substantial disadvantage in the admitted interviews because of the information that the police now had about what he would say. She submits that the police got this information improperly, because they failed to caution Matthew Heyward before embarking on the excluded interviews from which they obtained the information.
Ms Powell referred to the decision of the High Court in Pollard v The Queen (1992) 176 CLR 177. The decision in that case turned on the meaning of statutory provisions setting out procedures to be followed by police before questioning a suspect. The police had questioned the suspect without complying with those statutory procedures. A little later they questioned him again, this time complying with those procedures. The effect of the decision was that both conversations were part of the one interview, and as it had begun without the police complying with the statutory procedures the whole interview was inadmissible. It was not saved by the observance of the statutory procedures, in effect, part way through the interview. The decision is distinguishable. But in the course of his reasons Deane J made some observations that could support the submission by Ms Powell. Referring to the possible exclusion of the evidence of the latter part of the interview, after the statutory requirements were observed, Deane J said at 210:
The procedure adopted by the police of selectively using parts of the unlawfully procured and inadmissible Frankston interview to the disadvantage of the applicant in the St. Kilda Road interview was quite unfair to the applicant. The breach of the applicant's statutory rights and the unfairness of the police procedures constituted powerful considerations favouring the exclusion of the evidence of the St. Kilda Road interview on the ground that its reception would be unfair to the applicant.
The “Frankston interview” is a reference to the first part of the interview, conducted without a caution, and the “St. Kilda Road interview” is a reference to the latter part of the interview, conducted after the cautions were given. However, it should be noted that Deane J said that the contents of the latter part of the interview were “highly prejudicial and damaging and could well have made the difference between conviction and acquittal”: at 210. In the present case no admissions were made. He also said that there had been a “reckless disregard” of the statutory duty in relation to questioning: at 209.
In R v Amad [1962] VR 545 Smith J, as trial Judge, excluded the evidence of the first and second interrogations of the appellant. He said that they were conducted “in a gravely improper manner”: at 547. The Judge then had to consider a third and fourth interrogation, in which the improprieties affecting the first and second interrogations did not occur. He said at 548-549:
Nevertheless, the Crown’s position in relation even to these later interrogations is not free from difficulty. The third and fourth interrogations took place, it is true, at Amad’s request, or suggestion, which was prompted by advice from his sister that he should tell the police the whole truth; but one of the factors which in combination persuaded him to accept and act upon that advice was almost certainly the circumstance that he had already admitted to the police in the second interrogation some of the main matters constituting the case against him; indeed, the admissions made in the third and fourth interrogations, so far as they are important, are in substance little more than an expansion of the admissions obtained in the second interrogation. Accordingly, the proper conclusion, in my view, is that the admissions made in the third and fourth interrogations were in a real sense results of the improper conduct which occurred in the first and second.
It should be noted that he went on to say that in the third and fourth interrogations the police obtained detailed accounts of the incident in question, and that it would have been difficult for the appellant to avoid conflict between his evidence and one or both of those accounts. Again, this case is different. In the third and fourth interrogations the police obtained admissions which had been made in the excluded interrogations, but of which they apparently had no other evidence. In the present case the central lie upon which the prosecution relied at trial is to be found in the very first telephone conversation which was admitted without objection.
The reasoning of Smith J was followed in R v Su and Goerlitz [2003] VSC 305; (2003) 7 VR 13 at 24-25. In that case the Judge said that the accused thought that in view of prior admissions, which the Judge held should be excluded, “he needed to further explain his actions” in a part of the interview that would otherwise have been admissible. Because the latter part of the interview was based on the earlier part of the interview, “… the accused’s position is effectively forensically untenable”: at [68]. The earlier part of the interview involved “serious” breaches of the relevant legislation: at [58].
There are some significant features of the present case. The central lie in question was told before the excluded conversations took place. The lie was confirmed in the admitted interviews, but confirmed only. The exclusions that the Judge made meant that, at least overtly, the excluded conversations were not used to Matthew Heyward’s disadvantage in the admitted interviews. It is not apparent to me that the admitted interview, unlike those in Pollard, contained “highly prejudicial and damaging” material. In the admitted interviews Matthew Heyward persisted with and elaborated on the central lie. The relevance of the admitted interviews was the telling of lies. When he came to give evidence Matthew Heyward admitted that he had lied from the outset about his mother’s movements and his movements. He admitted that he lured her to Pick Avenue at his father’s request.
There was a significant gap between the excluded conversations and the admitted interviews, during which Matthew Heyward had plenty of time to reflect on his position. Unlike the case of Amad, it cannot be said that the admitted interviews were the result of gravely improper conduct that occurred in the excluded conversations. There is nothing to suggest that Matthew Heyward felt any pressure to participate in the admitted interviews, because he had participated in the excluded conversations. And it is important to bear in mind that the admitted interviews were significant mainly because of the central lie that they contained, not because they contained detailed admissions that were damaging to the defence case. Again, in contrast to the decision in Su and Goerlitz, there is nothing to indicate that Matthew Heyward entered into the admitted interviews because he felt a need “to further explain his actions” having regard to what he had already said. Obviously enough, if he were to tell the truth conflict between what he said in the admitted interviews and his evidence would emerge, but that seems to me to be a different issue.
While these are material differences between the present case and the decisions relied on by Ms Powell, they do not resolve the issue. They are merely matters to be borne in mind.
The central question is whether the trial was rendered unfair by the admission of the admitted interviews.
The Judge did not refer specifically to the issue of unfairness. Accordingly, I consider the issue afresh.
I am satisfied that the excluded interviews put no pressure on Matthew Heyward to participate in the admitted interviews. He made a free choice. I am not satisfied that the information the police obtained from the excluded interviews gave them any particular advantage when it came to the admitted interviews. Matthew Heyward was intending to and did persist with the initial lie that he had told. The content of the excluded interviews did not of itself put him at a disadvantage in the admitted interviews, nor when he came to give evidence. I cannot identify any unfairness at trial attributable to the fact and content of the excluded interviews. I note that they were excluded because the Judge considered that Matthew Heyward was a “person of interest” at the time, although not a “specific suspect”. He was not under arrest. The conduct of the police was not “gravely improper”, nor could it be called a “serious” breach of required processes. There was no “reckless disregard” of required procedures. In my opinion there is no unfairness to Matthew Heyward that could call for the exclusion of the admitted interviews.
In relation to the public policy discretion, I do not consider that there is anything that calls for the exclusion of the admitted interviews. The only relevant impropriety is that attaching to the excluded interviews. In my opinion the impropriety, or error, is of a different order from that involved in the cases referred to. Unless there is a relevant link between those interviews and the admitted interviews, there is no reason as a matter of public policy for excluding the admitted interviews having regard to the excluded interviews.
For these reasons I would reject this ground of appeal.
Matthew Heyward – Ground 2, Ground 3 and Ground 4 (permission required)
Ground 2, ground 3 and ground 4 raise complaints about the Judge’s directions on the topic of circumstantial evidence.
The first complaint is that the Judge failed to put the defence case adequately. The particular complaint is that he did not remind the jury of the defence criticisms of and answers to the prosecution’s circumstantial case. He confined his directions mainly to a summary of the circumstantial evidence, and of what Matthew Heyward said in evidence by way of answer. He declined to remind the jury of defence counsel’s submissions, even though about four weeks passed from the prosecution opening to the conclusion of the evidence and several days (including a weekend) passed between the address by counsel for Matthew Heyward and the conclusion of the summing up. The second complaint is that the Judge misled the jury. After summarising the circumstantial evidence he said to the jury that “the basic facts” were “really not in dispute”, except in relation to the topic of the jacket. This is a reference to evidence about the finding of a jacket, linked to Glenys Heyward, and said by the prosecution to have been used by Matthew Heyward to lay a false trail. The complaint is that the Judge was wrong. The items of evidence to which he was referring were in dispute. The complaint is that his Honour’s approach would have caused the jury to put to one side an important part of the defence case, challenging what his Honour called “basic facts” and inferences.
By the end of the evidence the issues had been narrowed by Matthew Heyward’s admission, for the first time, that he had lured Glenys Heyward to the house at Pick Avenue, and that he had lied about this and about her movements. The remaining issue was his state of mind, and whether the prosecution had proved that he took her there and left her there knowing or intending that she would be killed or seriously harmed.
The defence case was that Matthew Heyward took his mother to Pick Avenue because he was duped by his father. He said he had no idea of a plan to harm her. This was very clear.
I add, although I have made this point before, that there was no suggestion that Matthew Heyward or Mr Minter were directly involved in the killing or burial of Glenys Heyward. The prosecution case was that they assisted Neil Heyward, knowing that he intended to kill her or seriously harm her, but that was where their assistance ended, subject to the question of later lies.
In considering Ms Powell’s submission, it is necessary to look at the summing up as a whole. The structure of the relevant part of the summing up is significant. I will summarise the summing up, as Ms Powell did. The success of her submission depends upon an overall assessment of this part of the summing up. Along the way Ms Powell made some particular complaints, and I will deal with them as they arise.
The Judge told the jury that a lot of the evidence was undisputed. He said he would put it into three categories. First, evidence to prove that Neil Heyward murdered Glenys Heyward. He said that was relevant to both accused. Next, evidence relevant to Matthew Heyward, which he said was used to prove that Matthew Heyward lured his mother to Pick Avenue and knew his father was going to kill her or cause her serious harm. The third category was evidence against Mr Minter, which he said was largely evidence of things he had said to acquaintances, to the undercover police officers, and in his record of interview. Ms Powell complains that the Judge did not give the jury enough assistance in relation to what Mr Minter said about Matthew Heyward’s involvement in the killing. This relates to the question of whether Matthew Heyward knew that Mr Minter was at Pick Avenue when he took his mother there. I will return to that topic.

The Judge then dealt with the first topic or aspect of the evidence. In the course of this he referred to evidence about bruising and injuries to Glenys Heyward, suggesting that Neil Heyward had been violent towards her. Ms Powell criticises this because the Judge did not point out that the bulk of this evidence, virtually all of it, related to events years ago, before Matthew Heyward was born or when he was very young. I have no doubt that the jury would have appreciated this.
The Judge then turned to the evidence that involved Matthew Heyward. He explained the use of circumstantial evidence. He emphasised that the jury must decide which of the facts relied on had been proved. No complaint is made about the directions on this topic. He told the jury that the prosecution had to satisfy them that “… he must have known that his mother was to be taken to Pick Avenue to be murdered”. He added that there was another inference that could be drawn, namely, that the arrangement was “just to take her there in order that she might talk to her partner, Neil Heyward, about sorting out the agreement”. Ms Powell complains that this is the only time when the Judge precisely identified the defence case about the inferences that should be drawn. That might be correct, but when reminding the jury of the defence case he reminded them very clearly that the defence case was that Glenys Heyward and Neil Heyward were going to talk about the property settlement and that Matthew Heyward expected to see his mother later that night. In my opinion, there is no substance to this complaint.
The Judge then tackled the second topic, Matthew Heyward’s state of mind when he left his mother at Pick Avenue. He identified nine points or topics. The last of these was the jacket. Ms Powell says the Judge made a serious error here. Having identified the nine points or topics, the Judge said:
In relation to that part of the case, ladies and gentlemen, I will be talking about the evidence in relation to all of those points in a moment, and you might think the basic facts in relation to the other pieces of circumstantial evidence that I have pointed out to you are really not in dispute. However, in relation to that factor you will have to look at the evidence very carefully as to whether that factor has been established in the first place; namely that he did drop the jacket off. You have heard the arguments for and against, and indeed, the evidence is slightly contradictory on that topic. I will remind you of it in a moment. But unless you find it proved beyond reasonable doubt that he in fact dropped that jacket off to lead to a false trail, unless you find that proved beyond reasonable doubt, you will discard that point when you are concerning your decision as to what inferences you draw, and you will put it aside.
The Judge there appears to distinguish between evidence relating to the jacket and the other eight points or topics, and to say that as to the other eight the “basic facts” are “really not in dispute”. Ms Powell submits that this was wrong. There were disputes about some of the nine items, and about the inferences to be drawn. She submits that what the Judge said would have caused the jury to put aside important aspects of the defence case.
Another complaint she makes is that when the Judge outlined the evidence under this heading the Judge included items that should have been placed in the first category. I agree that some of that evidence was admissible against Mr Minter. It may be that this evidence should have been put in the first category as well. But I cannot see any unfairness to Matthew Heyward in the Judge including it in the second category as he did, because each item was relevant to the case against Matthew Heyward. I do not agree that this error of categorisation, if it was that, could have had an adverse effect on Matthew Heyward’s defence. I will come back to this.
The Judge prefaced the list of nine items or topics by reminding the jury that the case had narrowed to the issue of Matthew Heyward’s state of mind or belief when he took his mother to Pick Avenue.
He then turned to the nine items.
The first was that Matthew Heyward lured his mother to Pick Avenue by telling her lies. As he said, that was not disputed. There was no need for him to point out that the inference to be drawn from that was disputed. That is what the case was about.
Then he referred to various telephone calls between Matthew Heyward and Neil Heyward on 23 July 2007, late in the day. The fact of the telephone calls was not disputed. He did not remind the jury that Matthew Heyward said there was nothing sinister about these phone calls, and that they were simply to say that his mother had arrived and that he would bring her to Pick Avenue. Once again, I see no need to remind the jury of that.
Next he referred to evidence “that Matthew Heyward was in a position to lose financially in the split-up of his parents”. He referred to a letter, exhibit P8, written by solicitors for Thomas Heyward and Matthew Heyward to a solicitor acting for Glenys Heyward. When the letter was written it was not known whether Glenys Heyward was dead, although she was thought to be. In the letter the solicitors state that their clients “have an interest in asserting possible equitable claims in relation to the property the subject of the action”. That is a reference to action brought by Glenys Heyward against Neil Heyward. The letter states that they have “equitable claims” against the property. It states that if Glenys Heyward is alive, and continues with the case, Thomas Heyward and Matthew Heyward will apply to be joined in the proceedings. If she is dead, the letter asserts a claim by them as beneficiaries of Glenys Heyward, or under the Inheritance (Family Provision) Act 1972 (SA).
Ms Powell submits that Matthew Heyward had no motive to be involved in a plan to kill his mother. She submits that there was no evidence that Matthew Heyward had any financial interest or other interest in a property settlement between his parents. There was no evidence that he believed he was in a position to lose financially as a result of his parents’ dispute. He was on affectionate terms with his mother and might have benefitted, under her will, from any property that she received in the settlement. There was nothing to suggest that Matthew Heyward would benefit financially by the death of his mother. Ms Powell submits that the letter (exhibit P8) did no more than remind the recipient of entitlements that Matthew Heyward and Thomas Heyward had, and that it was not an assertion that they would benefit by the death of Glenys Heyward. A relevant background feature, not explored in any detail, was the existence of family trusts under which the sons might benefit.
Ms Powell points out that in his address to the jury, counsel for Matthew Heyward argued that he had no motive to kill his mother. Counsel referred to the evidence relied on by the prosecution, and argued that it established no motive at all. She argues that there was no evidence to establish that Matthew Heyward had a motive to kill based on financial gain. To make matters worse, she submits, the Judge more or less told the jury that they could find there was a motive to kill, by saying that the “basic facts … are really not in dispute”.
There was evidence capable of suggesting that Matthew Heyward had a financial motive to assist his father to kill Glenys Heyward. That was an issue for the jury. The issue of motive was in dispute, and defence counsel at trial denied there was any such motive.
However, I do not consider that the Judge said that motive was not in dispute. What he said was this:
Thirdly, the next piece of evidence upon which the Crown relies is a piece of circumstantial evidence as to the fact that Matthew Heyward was in a position to lose financially in the split-up of his parents. You remember the evidence of John Cusack, and the evidence of Mr DeGaris and, in particular, the letter P8, whereby there is a claim on foot on behalf of him and his brother.
The Judge was referring to the evidence of two named solicitors, and a letter written by one of the solicitors, suggesting that Matthew Heyward would join in a claim in relation to the family property. That was the letter exhibit P8. There was no real dispute about those basic facts, although the question of whether they provided evidence of a motive was hotly disputed. Nor could there be any real dispute that if Glenys Heyward’s property claim succeeded a substantial part of the farming property might have been sold to pay her out.
I agree, with respect to the trial Judge, that what he said was incautiously worded. But I do not consider that the jury would have taken the Judge to be telling them that an issue that had been hotly disputed was “really not in dispute”. It is to be noted that counsel at trial did not make any complaint about this passage. The relevance of that is that it apparently did not sound to counsel as if the Judge was saying what Ms Powell suggests he said.
I accept Mr Norman’s submission on this topic. It is the answer to this particular complaint, and, by and large, to the other complaints under this head. The basic facts were more or less undisputed. What was disputed was the inference about Matthew Heyward’s state of mind or belief. I am satisfied that the jury would have understood that.
The next item was that the house at Pick Avenue was derelict. That fact was not in dispute. But Ms Powell makes the point that Matthew Heyward had never been to the house before, and so this fact was something from which guilt could not be inferred. I disagree. If he saw the state of the house, one could reasonably argue that must have raised a doubt in his mind about his father’s intentions. Why meet at a derelict house to discuss a property settlement? The basic fact, the state of the house, was not disputed.
The next item was that the room in the house at Mount Gambier at which Matthew Heyward lived, and in which Glenys Heyward was going to sleep according to him, was “unfit for habitation” to use the Judge’s words. It appears not to have been disputed that one of the occupants of the house kept ferrets in the room, and that the room was in a state such that one would not expect anyone to sleep in the room. Matthew Heyward gave some evidence that he thought his girlfriend would have cleaned the room, but that evidence was quite unconvincing. While the Judge’s words might have overstated the situation somewhat, my understanding is that there was no real dispute that the room was not suitable for use by Glenys Heyward as a bedroom.
I do not accept the submission by Ms Powell that the evidence on this topic was incapable of supporting an inference adverse to Matthew Heyward. It was quite capable of supporting a conclusion that he knew that his mother would not be returning to sleep in the room in question.
Next the Judge referred to the topic of Mr Minter’s presence at the house at Pick Avenue. This topic is the subject of ground 4, on which permission to appeal was refused. The prosecution case was that Matthew Heyward knew Mr Minter would be there, saw him there, and showed no surprise at seeing him because he expected him to be there. The Judge said:
Next, that he showed no surprise at seeing Mr Minter at the house at Pick Avenue, if you find that he did see him, and the Crown rely on that, upon the circumstances of them both being there, the narrowness of the hallway etc. Mr Heyward does not say that he saw him there.
Ms Powell submits that this evidence was strongly disputed. Mr Heyward did not say that he saw Mr Minter there, and the suggestion that he “showed no surprise” was at best an inference to be drawn from the evidence of Mr Minter, as Mr Minter himself had not said that. It is correct that he did not say that. But Mr Minter said that Matthew Heyward had come in with his mother, passed close by his father and Mr Minter, and left without speaking. That did raise the question, as was argued in addresses, of why Matthew Heyward did not make any remarks about Mr Minter being there. Ms Powell makes the point that although the Judge said “… if you find that he did see him …” and mentions that Mr Heyward did not say he saw Mr Minter there, this approach seriously downplayed the contested aspect of the evidence on this topic. Although the Judge later reminded the jury of Matthew Heyward’s evidence about what happened at the house at Pick Avenue, evidence suggesting that he did not see Mr Minter there, Ms Powell submits that that was not enough to erase the impression that would have been created by what the Judge said.
Ms Powell submits that Mr Minter’s evidence on the topic was unclear, and was subject to attack by the defence. The Judge did not assist the jury in unravelling this evidence. He did not warn the jury that they should be careful because of the possibility that Mr Minter, in statements he had made to the police which he adopted before the jury, was telling the police things that he thought they wanted to hear in the hope of improving his own position. The Judge did not warn them that Mr Minter might have thought that he was “locked in” to the account that he gave to the police. Nor did the Judge remind them that Mr Minter might have been an unreliable witness. In the end his evidence in court was that when he walked out of the bathroom he saw another person there, did not see that person fully, but assumed or thought it was Matthew Heyward. However, in cross-examination he said that Matthew Heyward passed close by him as he walked out of the house at Pick Avenue, and that Matthew Heyward said nothing to him.
I agree with Ms Powell that what the Judge said gave the jury little assistance on this topic. On the other hand, while the evidence was at times confusing, the essential elements were relatively straightforward. It is clear enough from Mr Minter’s evidence that in the end he said there were four people in the house - Neil Heyward, Glenys Heyward, himself and a person whom he believed to be Matthew Heyward - that Matthew Heyward was quite close to him, and that nothing was said between them. Matthew Heyward agreed he was there, but not that he saw Mr Minter.
It was not essential for the Judge to remind the jury of the reasons why they might not accept Mr Minter’s evidence, or might not draw any inference adverse to Matthew Heyward from it.
The next item was evidence from Matthew Heyward that later in the evening he drove back to Pick Avenue but did not go inside to make enquiries about his mother or whether she needed a lift. His evidence was that he drove back to Pick Avenue to see if his father and mother had finished talking, but saw lights still on in the house and so he left.
Ms Powell submits that the Judge should have said something to the jury about the competing inferences or explanations, but in my opinion there was no need to do so.
Then the Judge referred to evidence of a conversation between Neil Heyward and Matthew Heyward on 22 July 2007. The conversation was on the Sunday night, the day before Glenys Heyward came to Mount Gambier. There was no dispute that the conversation occurred, nor was there a dispute as to where and when. The prosecution argued that the conversation was a step in the arrangements between Neil Heyward and Matthew Heyward. Matthew Heyward denied this. In my opinion it was not necessary for the Judge to tell the jury about the inferences that might be drawn from the fact of the conversation.
Then the Judge referred to the evidence about the jacket, said to have been placed to lead a false trail. The complaint is that when the Judge turned to this topic, as he did within a few minutes, to outline the evidence, he did so in considerable detail. Ms Powell contrasts this with the abbreviated treatment of the other items of evidence.
In my opinion there is no valid criticism to be made in this respect. The topic of the jacket was rather complicated, and needed detailed treatment. It was open to the Judge to take the view that the other eight topics did not.
I make the following general points about this aspect of Ms Powell’s submissions. At first glance there is force in Ms Powell’s complaint. I have given it careful thought. But reading this part of the summing up as a whole, and bearing in mind its structure, it is clear enough that by “basic facts” the Judge meant the underlying fact or event in question, as distinct from any inference about Matthew Heyward’s state of mind on 23 July that might be drawn from the underlying fact or event. This conclusion is supported by the absence of any reaction from any of the counsel to this part of the directions.
As to the complaint that the Judge did not remind the jury of the competing arguments as to inferences that might be drawn, or might not be drawn, I add this. Some Judges would have done that. If that were done, for the summing up to be balanced it would have been necessary for the Judge to refer to the competing submissions on each issue. That would have lengthened the summing up considerably. This is not decisive, but it is a factor. As Mr Norman pointed out in his submissions, there was plenty of material supporting the prosecution arguments that was not referred to by the Judge. I think it is clear that the Judge thought that the better approach in this case was to avoid revisiting the arguments by counsel about the inferences to be drawn from the circumstantial evidence. I have no doubt that that decision was influenced by the way the case stood at the conclusion of the evidence. It was quite clear what those competing inferences were. There is something to be said for the approach that the Judge took, one that identified the matters relied on by the prosecution, in the context of a clear direction about the proper use of circumstantial evidence.
I am not persuaded that the summing up was inadequate or unfair in this respect.
In the next part of the summing up the Judge outlined the evidence relevant to the nine topics just discussed, and some of the evidence relevant more generally.
Ms Powell correctly pointed out that some of this evidence was equally relevant to the case against Mr Minter. One example is the evidence relevant to the relationship between Glenys Heyward and Neil Heyward. But although the Judge wrongly categorised the evidence as relevant only to the case against Matthew Heyward, I cannot identify any prejudice to his case that would flow from that.
Later again the Judge reminded the jury of the defence case. He did so by and large by summarising the evidence given by Matthew Heyward. No complaint can be made about the summary. The Judge reminded the jury that the central issue was Matthew Heyward’s state of mind on the night of 23 July. Ms Powell submits that once again the Judge should have done more than this, and should have grappled with the question of the inferences to be drawn from the evidence.
For the reasons that I have given, it was not necessary to do this.
I would reject ground 2 and ground 3. I would grant permission to appeal on ground 4, but would reject that ground also.
Matthew Heyward – Ground 5 (permission required)
Ms Powell applied for permission to amend the Notice of Appeal to add this ground as a new ground.
The ground is that the Judge erred in failing to direct or warn the jury to exercise caution in relying on the evidence of Mr Minter to infer that Matthew Heyward showed no surprise at seeing Mr Minter at the house at Pick Avenue.
I have already set out this part of the Judge’s directions at [98].
Ms Powell submits that Mr Minter was an accomplice of Matthew Heyward, although a co-accused. When interviewed by the police Mr Minter, after being pressed by Detective Georg, identified the person who brought Glenys Heyward to the house at Pick Avenue as Matthew Heyward. He also said that he came out of the bathroom behind Neil Heyward before Matthew Heyward turned to leave the house. At trial, under cross-examination, that was the evidence that he ultimately gave. What he said to the police in the interview, and his evidence at trial, was capable of satisfying the jury that Matthew Heyward saw Mr Minter at Pick Avenue.

Ms Powell submits that it was a real possibility that having said what Mr Minter said to the police in the interview, the evidence he gave at trial was given to promote his own cause by attempting to maintain a consistent story. The jury should have been directed to exercise caution in relying on Mr Minter’s evidence to convict Matthew Heyward because this evidence was given to serve Mr Minter’s own interests.
A trial Judge is not required by any rule of law or rule of practice to give an accomplice warning, or a warning of the kind suggested by Ms Powell, relating to the evidence of an alleged accomplice who is a co-accused: Webb v The Queen (1994) 181 CLR 41 at 56 Mason CJ and McHugh J, at 66 Brennan J, at 80-81 Deane J, at 94-95 Toohey J. The difficulties that can arise if such a warning is given are referred to in the reasons of the members of the High Court in Webb.
Whether a trial Judge should give such a warning in a particular case, and in what terms, depends on the circumstances of the case. A reasonable degree of latitude must be allowed to a trial Judge in deciding whether to give such a warning.
The Judge did not err in not giving the suggested direction or warning.
The direction to the jury on this topic was qualified in such a way that, if the jury was not satisfied that Matthew Heyward saw Mr Minter at the house, the particular piece of circumstantial evidence relied on by the Crown was equivocal. The fact that Matthew Heyward showed no surprise then went nowhere.
It was not suggested to the trial Judge that an accomplice warning was necessary. It was not a case in which Mr Minter relied on a “cut throat” defence. Counsel for Matthew Heyward at the trial did not cross-examine Mr Minter about any aspect of the evidence which, it was argued, should have been the subject of the warning.
The evidence in respect of which the appellant submitted that a warning was necessary was the evidence of Mr Minter –
(a)that he saw Matthew Heyward inside the house; and
(b)that he did so from a position where he could have been seen by Matthew Heyward;
(c)from which an inference might be drawn that Matthew Heyward saw Mr Minter at the house; and
(d)that Matthew Heyward expressed no surprise at seeing him there (if he did).
As to the evidence of Mr Minter that he saw Matthew Heyward at the house, there was no doubt that Matthew Heyward was in the house with his mother. That was his own evidence. There was also no doubt that he had previously lied to police about not going into the house. There was therefore no dispute on the evidence that Matthew Heyward went into the house with his mother. No warning was necessary as to that aspect of the evidence.
There can also be no doubt that Mr Minter was in the house at the same time, even though Matthew Heyward said that he did not see him there. That aspect of Mr Minter’s evidence required no warning beyond the direction given by the Judge generally about assessing the evidence of witnesses, including that of an accused.
There is no doubt that Mr Minter said that he was in a position in the passage of the house where he could have been seen by Matthew Heyward. That came out in cross-examination by the Crown. However, it is necessary to put that evidence in its proper context. His evidence about their respective movements and relative positions was equivocal. In his statement to the police in a passage which he adopted in evidence, he said that he and Neil Heyward had been waiting in a room for Glenys Heyward to come. When she came Neil Heyward went out and confronted her. She had a fearful look on her face and Neil Heyward grabbed her around the shoulders. He (Mr Minter) was still in the room. He had also seen “that there was a shadow, somebody standing there, I do not know”. It was only later in the interview that he reluctantly acknowledged that Matthew Heyward was present. Nothing was said in the interview about where he was in the house.
In an earlier conversation with undercover police, the relevant portion of which was also adopted in evidence as being true, Mr Minter had said that the deceased’s son had brought her to the house but gave no other details.
There were other brief references to Matthew Heyward’s presence in other records of conversations with Mr Minter which were not adopted by him in evidence. The Judge told the jury that this material was not evidence against Matthew Heyward.
In his evidence-in-chief he said he saw someone whom he assumed was Matthew Heyward because of what Neil Heyward had told him would occur, and said that he only ever saw the person from his knees down, not his body. His evidence was that he was trying to conceal his identity from Glenys Heyward and the person he believed to be Matthew Heyward by pulling his beanie down over his eyes. Nothing was said about their relative positions or whether Matthew Heyward was in a position to see Mr Minter.
It was in cross-examination by the prosecutor that evidence emerged as to the relative positions of the people in the house. Mr Minter confirmed that he had been in the room off the passage with Neil Heyward and that Glenys Heyward and Matthew Heyward walked in through the rear door. He followed Neil Heyward out of the room into the passage in which all four of them were for a short time until Matthew Heyward left. Even then his evidence as to the relative positions of the participants was somewhat confused.
Mr Minter’s evidence as to his position in the house at various times relative to that of Matthew Heyward did not require a warning that the jury should exercise caution in accepting it other than by way of general direction as to the assessment of witnesses.
As to the question whether Matthew Heyward in fact saw Mr Minter at the house, Matthew Heyward denied that he did. There was no direct evidence from Mr Minter that Matthew Heyward saw him when he was there. An inference could be drawn from Mr Minter’s description of where the four persons were in the passage at a particular time that Matthew Heyward saw Mr Minter there. That is an inference which the prosecutor invited the jury to draw, not surprisingly. In all the circumstances there was no requirement for any warning in respect of the drawing of an inference that Matthew Heyward must have seen Mr Minter at the house.
As to the question of Matthew Heyward showing no surprise at seeing Mr Minter, if he did see him, there was some evidence from Mr Minter as to Matthew Heyward’s actions inside the house. According to the Judge’s directions to the jury, what Mr Minter said to the undercover police on this topic was not admissible against Matthew Heyward. In his evidence at the trial, there was one reference in cross-examination to conversation with Matthew Heyward. He was asked, when they passed, what Matthew Heyward said to him, to which he said: “I don’t think he talked to me at all”. He was asked: “So he didn’t say anything to you”, to which he replied: “Not that I can remember, no”. It was for the jury to decide what to make of that. No warning was called for.
In the circumstances, none of the items of evidence given by Mr Minter individually required a warning. There is no basis for suggesting that the items of evidence were given for the purpose of serving Mr Minter’s own interest. I cannot identify any other basis on which a warning was required. I cannot identify any cause that Mr Minter was promoting by giving evidence suggesting that Matthew Heyward must have seen him at Pick Avenue, or any particular advantage that he was likely to gain from that evidence.
I would grant permission to amend the Notice of Appeal to add this ground as a new ground, and would grant permission to appeal on this ground, but having done so I would reject this ground of appeal.
Matthew Heyward – Ground 6
The final ground of appeal complains that the verdict is “unsafe and unsatisfactory”. I take this to mean that properly directed the jury must or should have had a reasonable doubt about the guilt of Matthew Heyward.
As I understand the argument, this ground rests substantially, if not wholly, upon the combined effect of the grounds already considered. To the extent it does, it must fail. Taken together they have no more weight than they do individually.
I would reject this ground of appeal. It suffices to say that I consider the prosecution case to have been one that is readily able to support the jury’s verdict. There was plenty of material upon which the jury might have reached the conclusion that it did.
Mr Minter – Ground 2 (permission required)
This ground raises a complaint that there has been a miscarriage of justice. Mr Vadasz (counsel for Mr Minter at trial and on appeal) argues that the publication of a newspaper article during the trial required the discharge of the jury, and that the Judge’s refusal to do that has led to a miscarriage of justice.
A single Judge refused permission to appeal on this ground. The application for permission to appeal was renewed to this Court. The Court refused permission to appeal after hearing Mr Vadasz. These are my reasons for joining in that order.
The prosecutor opened the case to the jury on 10 February 2010.
On Sunday 21 February 2010 the Sunday Mail published an article. The Sunday Mail is a weekly newspaper published throughout the State. It is likely that some of the jurors would have read the publication on 21 February 2010. The article in question was in the form of a interview by a journalist of Mr Pallaras QC, leading counsel at the trial and the Director of Public Prosecutions.
The article made no reference to the trial. In the interview Mr Pallaras made some criticisms of trial processes and of the law of evidence, in particular the existing restriction on the use of evidence of similar misconduct.
Mr Vadasz asked the Judge to discharge the jury, but the Judge declined to do so. He told the jury to disregard the article.
Mr Vadasz argues that in some way the criticisms of existing procedures might affect the opinions of jurors. In particular he argues that Mr Pallaras’ comments about the law of evidence gave rise to a risk that the jurors might think that evidence was kept from them because, under existing laws, the jury was not trusted not to misuse the material. In this way, he suggests, Mr Pallaras “might engender favour with the jurors”.
In my opinion this argument is completely lacking in substance. There is no reason to think that jurors would have made any link at all between what was said in the article and the decision they had to make in this case. The opinions expressed by Mr Pallaras were similar to opinions that had been expressed many times by lawyers and judges, some of which have appeared from time to time in the media. There is no risk of a miscarriage of justice arising from the publication of the article. I agree with the Judge’s decision.
Mr Minter – Ground 4 (permission required)
This ground raises a complaint about the adequacy of the Judge’s directions on the topic of intoxication.
Mr Minter gave evidence that he was a heavy user of alcohol and of cannabis and amphetamines. He said that he smoked marijuana daily. He spent a lot of his earnings on alcohol.
He gave evidence that on 23 July 2007 he smoked a lot of marijuana during the day. He said that in the evening he was “stoned”. He explained that this meant that his thinking was slower than usual, he was less alert, and that he had “tunnel vision”. He seemed to be saying that because of the marijuana he did not appreciate the significance of some of the events, or realise what Neil Heyward was planning to do. His perception and understanding of events was affected, and that was why he did not realise that Neil Heyward was planning to kill Glenys Heyward, even though in the cold light of day that might have been apparent.
At trial Mr Vadasz argued that intoxication could be relevant to the fact of intent or belief, as well as to capacity to form an intent or belief. There can be no dispute about that. He applied this to the evidence of Mr Minter that the effects of marijuana were such that he did not realise what Neil Heyward intended to do. That argument was open to him.
The Judge dealt with the topic in his summing up. He reminded the jury of the evidence relating to drugs. In particular, he reminded them that Mr Minter had said that “he was stoned and not alert”. He reminded them of some expert evidence about the effects of marijuana. He told them that Mr Minter’s evidence about being stoned was relevant when deciding whether it had been proved that Mr Minter knew what Neil Heyward was planning. He reminded them that this evidence about marijuana was also relevant to the issue of possible confusion when Mr Minter was talking to the police. He reminded them that it was relevant to the conversation with the crowd controller outside a hotel at Mount Gambier.
Mr Vadasz argues that it was not enough for the Judge to tell the jury to bear this evidence in mind, as he did. He should have told them how to bear it in mind. I disagree. There was nothing more that needed to be said. The point is obvious. Mr Vadasz also submits that the Judge should have made the point that this was a case of “partial intoxication affecting perception”, and that it meant that Mr Minter did not “put two and two together”. I have no doubt that that is what the jury understood the Judge to mean.
The single Judge refused permission to appeal on this ground. The application for permission to appeal was renewed to this Court. During the argument the Court refused permission to appeal. These are my reasons for joining in that order.
Mr Minter – Ground 5
By ground 5 Mr Minter raises a complaint that the Judge did not adequately direct the jury in relation to the defence case. The complaint is that the Judge did not summarise the main arguments put by Mr Vadasz in his address to the jury. That general complaint is applied to the manner in which the Judge dealt with particular aspects of the evidence bearing on the central issue that the jury had to decide – Mr Minter’s knowledge and belief on the evening of 23 July 2007.
Mr Vadasz identified five particular matters as aspects of the general complaint. First, the Judge did not summarise Mr Vadasz’s address to the jury. Second, the Judge did not remind the jury that Mr Minter’s case was that his evidence in court should be preferred because it was more reliable than what he said to the undercover police officers, and what he said in the records of interview. Nor did the Judge go into the detail of the arguments put by Mr Vadasz to persuade the jury to accept that proposition. There was a “tension” between Mr Minter’s evidence and what he said to the undercover police and in the records of interview. Mr Vadasz argues that the Judge should have examined the conflicts or points of tension in detail for the jury, identifying the prosecution and defence argument on each point. The third point relates to the two records of interview. He complains that the Judge did not explain to the jury the pressure on Mr Minter at the time, and did not explore Mr Minter’s explanation for certain inconsistencies between the records of interview and his evidence. Fourth, the Judge did not refer specifically to particular defence arguments. For example, Mr Vadasz argued that Mr Minter’s evidence that he tried to cover his face before Glenys Heyward arrived at Pick Avenue was inconsistent with the idea that he believed that she would be killed. Fifth, Mr Vadasz complained about the failure to relate the direction as to intoxication to the facts. This reflects the argument already rejected under ground 4, and I say no more about it.
I do not accept these criticisms of the summing up. The first point lacks substance. There was no obligation on the Judge to summarise Mr Vadasz’s address. There is no general principle that this must be done. I put that argument to one side. The other matters can be dealt with together.
The central issue was clear. The issue was Mr Minter’s state of mind and belief on the evening of 23 July 2007. As the Judge said in his final remarks, just before the jury retired to consider their verdict:
… it has to be proved that while they were at Pick Avenue and he [Mr Minter] was doing the things that you find have been proved, at that stage Mr Neil Heyward intended to kill his wife, to kill the deceased or cause her grievous bodily harm, and that Mr Minter knew that to be so, and whether that was the situation is a matter for you to decide.
The prosecution relied on inferences from facts, many of which were not in dispute. The prosecution also relied on what Mr Minter said to the crowd controller, to the undercover police and in the records of interview. These conversations provided some evidence of his knowledge of events, and evidence of lies told by Mr Minter. There was a “tension” between that material and the evidence, but that was obvious. It was part of the defence case that Mr Minter had been lying to police for a variety of reasons.
The Judge identified the issue for the jury clearly, and did so several times.
The Judge did put the defence case to the jury. It was that Mr Minter did not realise what Neil Heyward was planning. He was duped. He was affected by drugs. The Judge reminded the jury of the salient features of Mr Minter’s evidence. He did so clearly and adequately. The matters about which Mr Vadasz complains were matters for the jury to consider, and they were significant matters. But it does not follow that the Judge had to rehearse the arguments on either side about what might or might not be made of particular facts, circumstances, and combinations of facts and circumstances. That was a matter for the Judge to decide. As I said in relation to a similar argument advanced on behalf of Matthew Heyward, once the Judge began to rehearse the detailed arguments on either side, the length of the summing up would have increased substantially. There was a risk that cannot be ignored of the jury losing sight of the key issues in a mass of detail. It was open to the Judge to take the approach that he took.
In fact, when summarising the evidence the Judge reminded the jury in general terms about the reasons for differences between Mr Minter’s evidence and statements that he made out of court. He also reminded them of factors that might have caused those differences. He did tell the jury about the circumstances in which Mr Minter was interviewed by the police, and the reasons why Mr Minter might have felt under pressure, or might not have given an accurate account. The Judge did touch on a number of particular points made by Mr Vadasz.
What the Judge did not do, and this is the real complaint, is rehearse or grapple with the detailed submissions made on each side about the inferences to be drawn by the jury from the admitted and disputed facts. Putting the defence case before and to the jury did not require this, in my opinion. The defence case was actually quite clear and quite simple. As well as identifying the defence case, the Judge outlined the main matters to which the jury should have regard. It was open to him to take the view that that was where the line could and should be drawn.
I would reject this ground of appeal.
Mr Minter – Ground 1
At trial Mr Vadasz objected to evidence being given by police officers of questioning by them of Mr Minter on Saturday 24 November 2007 (the day after his arrest) and on Sunday 25 November 2007. The Judge overruled the objection after hearing evidence about the circumstances under which the questioning took place. Mr Vadasz submits that the Judge should have found that the admissions that Mr Minter made were not shown to have been made voluntarily. Further, or alternatively, Mr Vadasz submits that the Judge should have excluded the evidence because its admission was unfair and because the admissions were obtained by impropriety on the part of the police officers concerned.

It should be noted at the outset that it was common ground that a good deal of what Mr Minter told the police on 24 November 2007 and 25 November 2007 was untrue. While he admitted an involvement in events at Pick Avenue, he continued to minimise his role and his understanding of what happened.
The police arrested Mr Minter at 3.25 pm on Friday 23 November. The first relevant interview was on Saturday 24 November beginning at 2.39 pm. Between those times Mr Minter spoke by telephone to his father (who was in Western Australia) and to Mr Koehn, a solicitor employed by the Legal Services Commission and to whom Mr Minter spoke through the Duty Solicitor Service. On the Friday Mr Koehn advised Mr Minter not to answer questions, and he acted on that advice. On the Saturday his father told him to tell the truth. Mr Koehn spoke to him again, and apparently told him that the police had indicated to Mr Koehn that if he cooperated with the police he might get favourable treatment. There was talk about what was called a “letter of comfort”. Mr Koehn again advised him not to answer questions. However, after the conversation with his father Mr Minter had changed his mind, and although Mr Koehn continued to advise him not to answer questions he decided to do so. That led to the first disputed interview, and then that interview led to further disputed interviews on the Sunday. That is the issue in a nutshell.
Mr Vadasz submits that the information from Mr Koehn about a possible benefit if he cooperated with the police, and about the letter of comfort, were inducements held out by the investigating police as persons in authority, and this made the admissions involuntary. Mr Vadasz submits that the police used Mr Koehn to transmit their offer or inducement to Mr Minter. He linked this to what Mr Minter senior said. That is, urging his son to tell the truth. He also argued, contrary to a finding by the Judge, that Mr Minter senior passed on similar inducements. Mr Vadasz submits that this was all part of a strategy or plan by the police, but even if it was not, the fact is inducements were offered. In the alternative, he submits that the Judge should have excluded the admissions in the exercise of his discretion, because their admission made the trial unfair, and because the admissions were obtained by impropriety.
There is a further complaint that during the course of the interview Detective Georg stressed the importance of Mr Minter being truthful and that this, alone or in combination with the other matters, meant that the admissions made thereafter were not voluntary.
The legal principle that governs the challenge to the voluntariness of the admissions is summarised by the High Court in The King v Lee (1950) 82 CLR 133 at 144, where the Court drew on the principle as stated by Dixon J in McDermott v The King (1948) 76 CLR 501 at 511. In Lee the Court said:
These rules [regarding confessional statements], stated in abbreviated form, are – (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed. These two “rules” are, of course, well established, but it is important, we think, in this case to observe that they seem to be not really two independent and co-ordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character. It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible.
This statement of principle was affirmed by the High Court in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at [11]-[13] Brennan CJ, at [50] Toohey, Gaudron and Gummow JJ, at [121] Kirby J.
The ultimate question is one of fact. Was the will of Mr Minter so overborne that his admissions were not made in the exercise of a free choice to speak or to remain silent? In deciding this question the circumstances in which the statements were made, and Mr Minter’s own circumstances, must be considered. The Court is not confined to threats or inducements made by the police: Lee at 146, The Queen v Geesing (1985) 38 SASR 226 at 231-232 King CJ. It is essential to bear in mind that the issue (ignoring the question of onus) is whether some form of external pressure caused the admissions to be made. The issue of causation is central.
Although I consider that the law on this point is clearly settled by the decisions in Lee and Swaffield, it is appropriate to clarify one point. In R v Dixon; R v Smith (1992) 28 NSWLR 215 Wood J, in reasons with which the other members of the Court agreed, considered the question of whether an inducement caused a confession, or whether it was sufficient if the inducement merely preceded the making of the confession: at 225-226. He noted that there was some difference in judicial opinion on the point, and suggested that in Australia authorities tended to support the view that it was sufficient if the inducement merely preceded the making of the confession. One of the authorities to which he referred was the High Court decision in McDermott at 511, containing the statement of principle on which the Court drew in Lee. However, he referred to other Australian decisions suggesting that the issue was whether the inducement caused the confession. I do not, with respect, read what Dixon J said in McDermott in the manner in which Wood J did. In any event, I respectfully agree with the observations that Wood J went on to make at 226. He said:
The difference between the formulations of the principle may involve nothing more than the manner in which the Crown onus of proving voluntariness is expressed; and it may be that each assumes the confession prima facie to be involuntary when it follows inducement from a person in authority in point of time.
On this approach, which seems to me correct, it remains open to the Crown to carry the onus of voluntariness by positive proof that the inducement did not procure the confession, or by proof that its effect had been dissipated or removed by the time of the confession …
The authorities are relatively settled that in determining whether the inducement tainted the confession, regard is to be had not to whether a reasonable person could have been affected by the inducement, but whether the mind of the accused was affected by it …
Citations omitted
In short, the question is whether the relevant inducement caused the confession. The onus is on the prosecution to prove that the confession was made voluntarily. If something that might amount to an inducement has been held out, the Court may yet conclude that the confession was voluntary if the inducement did not affect the mind of the accused, or if its effect had been dissipated or removed by the time of the relevant confession.
I turn to the evidence before the trial Judge, and to the findings made by the Judge on that evidence.
Mr Minter was arrested at 3.25 pm on the Friday. He was informed of his rights. He asked to speak to his father, and to a solicitor. Detective Georg contacted his father by telephone. His father was in northern Western Australia. Mr Minter spoke to him briefly, telling him that he had been arrested on a charge of murder. Detective Georg agreed to ring Mr Minter senior later. Mr Minter senior said that he would come to Adelaide. Detective Georg also made contact with Mr Koehn by telephone. Mr Minter spoke to Mr Koehn for about 12 minutes. Mr Koehn advised him not to answer questions. Mr Minter accepted that advice.
About 6.15 pm on the Friday Detective Barr spoke by telephone to Mr Koehn. Detective Barr enquired whether a lawyer could come to the police station to assist Mr Minter. Detective Barr told Mr Koehn that Mr Minter had an opportunity to cooperate with the police, and that Mr Minter would benefit if he did. Detective Barr indicated that the police believed that Mr Minter was not the main culprit in the murder, that there were others involved, and that the police were hoping that Mr Minter would cooperate with them in relation to further investigations. There was some reference to a “letter of comfort”, a letter to be put before a sentencing court.
Shortly after that, Mr Koehn telephoned Mr Minter, and had a further conversation with him. Mr Koehn gave evidence before the Judge about events on the Friday and Saturday, including this further conversation. He gave his evidence from notes, his memory being incomplete, not surprisingly. When asked about the letter of comfort and the matter of cooperation, and whether he had passed that on to Mr Minter, he said:
… I imagine I would have because that’s why I was speaking to him again.
He could not remember what he had said about these matters. The Judge asked Mr Koehn whether he had identified any “particular advantage in cooperating with the police”, as to which Mr Koehn said “no”.
Mr Koehn again advised Mr Minter not to answer questions, and Mr Minter acted on that advice.
From Mr Minter’s point of view, that is how things stood on the Friday.
Later, about 9.30 pm, Detective Georg rang Mr Minter senior again to give him further information about Mr Minter’s arrest. He said that when he spoke to Mr Minter senior earlier that day he had offered to ring Mr Minter senior, once he had time to do so, to give him further information. While there is no doubt that the police were hoping that Mr Minter would cooperate with them, there is no particular reason to impute a sinister motive in relation to this telephone conversation. It would be surprising if Mr Minter senior did not want further information about what was going on. In the course of that conversation Detective Georg said that he told Mr Minter senior about “the processes that had occurred during the course of the investigation where his son was involved”. He told him that a solicitor had spoken to Mr Minter, and that Mr Minter had declined to answer questions. He told Mr Minter senior about a recent legislative reform which meant that if found guilty Mr Minter faced a minimum non-parole period of 20 years, although that could be reduced if there was a plea of guilty or if the offender assisted the investigation of the offence. He said that Mr Minter senior was upset during the conversation, and wanted information. Detective Georg denied asking Mr Minter senior to say anything in particular to his son.
Detective Georg said that he promised Mr Minter senior that he would let him speak to his son again.
On Saturday 24 November 2007, about 12.54 pm, Mr Minter was brought from the cells to an interview room and was given the opportunity to speak in private to his father by telephone. Detective Georg had contacted Mr Minter senior. Mr Minter spoke to his father for about ten minutes. Again, without overlooking the hope that the police had that Mr Minter would cooperate, there is no reason to view the further phone call as sinister.
Both Mr Minter and his father gave evidence before the Judge about that conversation. Their evidence conflicted. I will come back to the Judge’s findings. At this stage it suffices to note that it was common ground that Mr Minter senior told his son to tell the truth. He said that fairly firmly.
After this telephone conversation Mr Minter told Detective Georg that he wanted to speak to police, and to answer their questions. This was about 1.10 pm.
Detective Georg then informed Mr Minter that he should get further legal advice. He said (this conversation had been recorded):
Okay. It’s important, Jeremy, and I, that you’ve already received some legal advice, okay, so it’s in my opinion, it’s only fair and it’s proper that because you’ve had that legal advice and you’ve told us that you don’t wish to answer questions, that notwithstanding your, your dad has had a chat to you and told you what to say and now you want to speak to us and tell us what happened, I still think it’s important that you speak to your solicitor again so do you have any objections if I got the lawyer you spoke to last time on the phone and you have another chat with him. Do you, would you object to that if I did that?
Detective Georg then made contact with Mr Koehn by telephone. A minute or two after 2.00 pm Mr Minter spoke to Mr Koehn for about 15 minutes. Mr Koehn gave evidence about that conversation as well, his evidence being based almost entirely on his notes. He said that Mr Minter told him his father had advised him to speak to the police, and that he had decided to do so. Mr Koehn advised him not to do so. Mr Koehn did not attend the interview that took place a little later. He made the decision that it was not desirable to do so, as the interview was taking place against his advice.
A lengthy interview began at 2.39 pm.
In the course of the interview Mr Minter gave three different versions of his involvement in events, the second and third versions containing admissions of greater involvement than the previous versions.
After he had given what can be called the first version, Detective Georg in effect told him that the police knew he was not telling the truth, because they had material from the undercover police officers. They invited Mr Minter to consider his position, and he said that he would like to continue with the interview. He then sought reassurance from the police about his own safety if he gave them further information. He was offered the opportunity to speak to his solicitor again, but he declined that offer. Mr Minter said that he had not told the truth so far because he was concerned about his safety.
He then gave what can be called version two. In this version he described being present at the house at Pick Avenue, and Glenys Heyward coming into the house, but without anyone else. He outlined how events unfolded. Detective Georg then offered him time to consider the situation, but indicated that the police had information suggesting that he had not told the truth.
Mr Minter then gave what can be called version three, and on this occasion he said that Matthew Heyward came into the house with Glenys Heyward.
As Mr Pallaras said, it was noteworthy that having talked to his father Mr Minter then set out to give a version of events which more or less exculpated him. It is not necessary to go into the details. When told that the police had material suggesting that was not the full truth, he gave a further version that did implicate him, but even that was added to when the police indicated that they did not believe he was being truthful.
I turn now to the findings that the Judge made.
The Judge heard evidence from all relevant persons.
After the trial he provided written reasons for his decision to admit the evidence: R v Heyward & Minter (No 2) (unreported, 30 April 2010).
The Judge found that there was no plan by the police to use Mr Minter senior to pass on to Mr Minter an inducement to speak to them: at [14]. That, of course, is not decisive. The issue is, what was said to Mr Minter and what effect did it have on him?
The Judge preferred the evidence of Mr Minter senior to that of Mr Minter in relation to the conversation between them on the Saturday morning, as a result of which Mr Minter decided to answer police questions. The Judge found Mr Minter to be an unreliable witness. He accepted the evidence of Mr Minter senior that he was not told by the police to say anything in particular to his son, that he told his son to tell the truth, and that he spoke to him quite firmly on that point, but that he did not say anything to his son about getting a lesser non-parole period if he were to cooperate with the police. In fact, he said that he thought his son already knew that, and that he should have passed it on but did not. The Judge rejected evidence by Mr Minter that his father had told him that he would get a lesser non-parole period if he cooperated with police. Mr Vadasz challenges this finding. In my opinion there is no basis for setting it aside. The Judge saw the witnesses in question. He described Mr Minter senior as “a forthright and honest witness, who was concerned about his son”: at [14]. I agree that the evidence of Mr Minter senior reads this way. The written evidence is forthright and matter of fact. I am not persuaded that the Judge erred in this respect.
The Judge accepted that on the Friday Mr Koehn informed Mr Minter about a possible benefit as a result of cooperation, but noted that after that conversation Mr Minter acted on Mr Koehn’s advice that he should not answer questions. Another important finding by the Judge was that he rejected the evidence of Mr Minter that he answered police questions because of the possibility of obtaining a lesser non-parole period. He found that Mr Minter accepted his father’s advice to tell the truth. He also made a specific finding that Mr Minter knew during the course of the interview that he could stop the interview at any time.
The Judge said that the police gave Mr Minter copious warnings, and assisted him to get legal advice and to speak to his father. The Judge said that he had viewed the video recording of the challenged interviews, and he said that there was no oppressiveness or unfairness, and added at [20]:
… there was a clear indication that the accused was keen to talk about the matter.
For those reasons the Judge said that the interviews were voluntary, and were not the result of any form of inducement by a person in authority.
The Judge also said that there was no unfairness in the way the interviews were conducted.
I consider that all of those findings were open to the Judge, and would not disturb them.
I make the following points.
Mr Koehn advised Mr Minter not to answer police questions. He did no more than inform him of the possibility of the benefit if he did. His advice was not to pursue that possibility. Mr Minter accepted that advice on the Friday. Clearly, the prospect of a possible benefit did not influence him.
On the evidence Mr Minter changed his mind after being advised by his father to tell the truth. There is nothing of an overbearing nature in that. The fact that Mr Minter was likely to accept his father’s advice, as Mr Minter said, and as Mr Minter senior said, is not crucial. It does not demonstrate that Mr Minter’s will was overborne. It is significant that Mr Minter senior did not say anything about the benefits of cooperation.
There was no plan by the police to outflank Mr Koehn and his advice. A finding that there was such a plan is not essential for the purposes of Mr Vadasz. The ultimate question is the impact on Mr Minter of what was said and done. In my opinion it was not inappropriate for the police to raise with Mr Koehn the possibility of a benefit as a result of cooperation, leaving it to Mr Koehn to handle that as he saw fit. The fact that the police hoped that Mr Minter would cooperate is hardly surprising.
On the Judge’s finding Mr Minter spoke to the police because of what his father said to him. It was not because of any prospect of favourable treatment. Indeed, during the interview Mr Minter indicated a concern about his safety if he gave a version of events that implicated others. He did not refer to the possibility of obtaining a benefit. The Judge was satisfied, having viewed the video, that Mr Minter was willing, indeed anxious to speak.

It was open to the Judge to find, and there was plenty of evidence to support the finding, that when Mr Minter embarked upon the interview with the police the prospect of a possible benefit from cooperation had no effect on his decision to answer police questions. Any effect that any such prospect might have had was well and truly dissipated.
In my opinion the Judge’s finding that Mr Minter spoke voluntarily to the police is soundly based, and should not be rejected.
The Judge was also satisfied that the police did not conduct the interview unfairly. In my opinion there was nothing wrong, improper or overbearing in the police indicating, as they did, that they did not accept what Mr Minter was saying, and then showing him some of the material in their possession (through the undercover police) that suggested that Mr Minter was not telling the truth.
Nor do I agree that there was anything wrong or improper in the manner in which the police dealt with Mr Minter senior, and consequently with Mr Minter himself. I agree with the Judge’s finding that the police gave Mr Minter adequate warnings, and gave him appropriate assistance to get legal advice and to talk to his father. I do not accept the submission that the conduct of the police amounted to a subversion of Mr Minter’s right to silence.
The trial Judge examined the circumstances in some detail, and so have I. Considering them as a whole, I can find no impropriety or unfairness that would provide a basis for excluding the evidence in question.
I would reject this ground of appeal.
Mr Minter – Ground 7
Mr Minter also complains that the verdict is unsafe and unsatisfactory, and gives rise to a miscarriage of justice. In his submissions Mr Vadasz said that this ground was based on the combined effect of the grounds already dealt with.
During the course of the hearing the Court was taken to a considerable part of the evidence given in the case.
In my opinion there is no substance at all in this point. The prosecution case against Mr Minter was a very strong one. There was a substantial body of evidence to support the jury’s verdict.
I would reject this ground of appeal.
Conclusion
On the appeal by Matthew Heyward I would grant permission to appeal on Ground 4, and would grant permission to amend the Notice of Appeal to add Ground 5 and would grant permission to appeal on Ground 5. Subject to that, I would dismiss his appeal against conviction.
On the appeal by Mr Minter the Court has already refused permission to appeal on Ground 2 and Ground 4.
I would dismiss Mr Minter’s appeal against conviction.
DUGGAN J: I would dismiss the appeals. I agree with the reasons of the Chief Justice.
BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. I have nothing to add to those reasons.