R v Hill; R v Young
[2014] QCA 107
•16 May 2014
SUPREME COURT OF QUEENSLAND
CITATION:
R v Hill; R v Young [2014] QCA 107
PARTIES:
R
v
HILL, Bradley David
(appellant)R
v
YOUNG, Kerryn Anne
(appellant)FILE NO/S:
CA No 154 of 2013
CA No 152 of 2013
SC No 6 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Appeals against Conviction
ORIGINATING COURT:
Supreme Court at RockhamptonDELIVERED ON:
16 May 2014
DELIVERED AT:
Brisbane
HEARING DATE:
20 February 2014
JUDGES:
Chief Justice and Fraser and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Leave be granted to Hill to adduce the further evidence.
2. Hill’s appeal be dismissed.
3. Young’s appeal be dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant Young and the appellant Hill were in a relationship – where Hill and the deceased used to be good friends but had fallen out – where Young found out that Hill was sleeping with another woman – where on Friday 8 October 2010 Hill was in Brisbane and Young and the deceased were in Gladstone – where on the evening of Friday 8 October and the morning of Saturday 9 October Young and the deceased communicated to Hill via text messages and phone calls that they were sleeping together – where in response Hill made death threats via text messages and phone calls against the deceased – where on Saturday 9 October Hill travelled to Gladstone allegedly acquiring heroin en route – where on Saturday 9 October Young and Hill reconciled – where on the evening of Saturday 9 October Young and the deceased arranged for the former to deliver the latter a syringe containing a pre-mixed drug – where on the evening of Saturday 9 October or the morning of Sunday 10 October Hill arranged for Weston to place an envelope in the deceased’s letterbox – where on Sunday 10 October the deceased injected himself with a syringe containing a pre-mixed drug and died – where medical evidence determined that the deceased died from an overdose of heroin – where there was evidence that the deceased used amphetamines but not heroin – where Hill was convicted after trial of the murder of the deceased – where Hill contends that the verdict is unreasonable and cannot be supported having regard to the evidence – where inter alia Hill contends that Hill’s hostility toward the deceased did not continue after he arrived in Gladstone and the deceased injected the drugs on a voluntary and informed basis – whether the verdict against Hill is unreasonable and insupportable
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where Young was convicted after trial of the murder of the deceased pursuant to s 7 of the Criminal Code – where Young contends that the verdict is unreasonable and cannot be supported having regard to the evidence – where Young contends that the lethal dose of heroin did not come from the envelope Hill had placed in the deceased’s letterbox – where Young contends that Hill was not with her for all of her text message communications with the deceased on Saturday 9 October – where Young contends that the deceased did not take Hill’s threats seriously – where Young contends that she did not have actual knowledge that Hill had an intention to kill or do grievous bodily harm to the deceased – where Young contends there is insufficient evidence to conclude that she aided Hill to supply heroin to the deceased – whether the verdict against Young is unreasonable and insupportable
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where Hill contends that there was a miscarriage of justice in that a contradictory statement by McNeil, relevant to the reliability of that witness as to the deceased’s knowledge of the drug supplied to him, was not before the jury – where that contrary statement was available to Hill’s representatives at trial – where Hill contends that McNeil should have been cross-examined on the disparity of the statements – where Hill applied for leave to adduce that evidence before this Court – whether this resulted in an unfair trial and deprived Hill of a fair chance of acquittal – whether leave to adduce the evidence should be given
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where Hill contends that inadmissible evidence of an accusation that Hill improperly interfered with children, and that Hill was a drug dealer, was before the jury, and the prejudice thereby occasioned could not be cured by direction – where the witness Hardwick gave evidence that the deceased and Young had taunted Hill about “doing things to children” – where the learned trial judge dealt with this evidence in summing up – where a witness referred to Hill as a drug dealer – where Hill and many of the witnesses were at the time of the deceased’s death part of the Gladstone drug scene – whether either reference caused any prejudice to the deceased – whether the reference to Hill “doing things to children” could be cured by directions – whether the jury should have been discharged
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where on Sunday 10 October after learning of the deceased’s death Hill told Watson to “shut your mouth” – where Hill contends there was a miscarriage of justice in that the jury were wrongly directed that post-offence conduct by Hill was capable of amounting to evidence of consciousness of guilt of murder – whether this evidence was capable of demonstrating a consciousness of guilt
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7, considered
Flora v The Queen [2013] VSCA 192, cited
Hayes v The Queen (1973) 47 ALJR 603, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, cited
R v Ferguson (2009) 24 VR 531; [2009] VSCA 198, cited
R v Grills (1910) 11 CLR 400; [1910] HCA 68, considered
R v Martindale[2009] QCA 24, cited
R v Taylor (2004) 8 VR 213; [2004] VSCA 98, cited
R v Williams [1987] 2 Qd R 777, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, considered
Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23, citedCOUNSEL:
C W Heaton QC, with K Prskalo, for the appellant, Hill
C Chowdury for the appellant, Young
B J Merrin for the respondentSOLICITORS:
Legal Aid Queensland for the appellant, Hill
Legal Aid Queensland for the appellant, Young
Director of Public Prosecutions (Queensland) for the respondent
CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Morrison JA. I agree that the appeals should be dismissed for those reasons. (I also agree with His Honour's order as to further evidence.)
The prosecution case was factually complex, and a lot depended on the meaning of the text messages and the inferences to be drawn from them. I am grateful to Morrison JA for his detailed analysis of the evidence.
That analysis powerfully demonstrates the deference which should in this particular case be accorded the jury’s determination.
This jury’s advantage, having heard and seen the evidence, should not lightly be gainsaid.
FRASER JA: I have had the advantage of reading the reasons for judgment of Morrison JA. I agree with those reasons and with the orders proposed by his Honour, and I also agree with the additional observations made by the Chief Justice.
MORRISON JA: On 4 June 2013 each of the appellants (“Hill” and “Young”) were convicted after a trial on one count of murder. The alleged offence took place on or about 10 October 2010 at Gladstone. The essential nature of the case was that Hill delivered a lethal dose of heroin to the deceased, with the aid of Young. Young was contended to have actual knowledge that Hill intended to cause the deceased’s death, or cause grievous bodily harm.[1] The deceased independently injected the drug and died shortly afterwards. The Crown case was that the deceased thought he was taking amphetamines,[2] when in reality the syringe he was using contained heroin.
[1]Criminal Code, ss 7, 300 and 302.
[2]See The Merck Index Online. Amphetamines.
Grounds of appeal
The main ground of appeal argued by Young[3] was that the verdict was unreasonable, cannot be supported by the evidence, and is thus unsafe and unsatisfactory.[4]
[3]Young’s Submissions, filed 3 February 2014, at paras 5.18 and 5.20; AB 523.
[4]A second formal ground was that the learned trial Judge erred in holding that there was a prima facie case. However it was accepted that this was subsumed in the main ground.
Hill’s grounds of appeal are:[5]
[5]Hill’s Submissions, filed 28 January 2014, at para 2.
(1) that the verdict is unreasonable and cannot be supported having regard to the evidence;[6]
[6]See paragraphs [9] to [88].
(2) there was miscarriage of justice in that a contradictory statement by Alicia McNeil (“McNeil”)[7], relevant to the reliability of that witness as to the deceased’s knowledge of the drug supplied to him, was not before the jury;[8]
[7]Only those witnesses whose first names will appear in relevant parts of the evidence, or who feature frequently, will be identified this way.
[8]See paragraphs [145] to [156].
(3) there was a miscarriage of justice in that inadmissible evidence of an accusation that the appellant improperly interfered with children, and that the appellant was a drug dealer, was before the jury, and the prejudice thereby occasioned could not be cured by direction;[9]
(4) there was a miscarriage of justice in that the jury were directed, wrongly, that post-offence conduct by the appellant was capable of amounting to evidence of consciousness of guilt of murder.[10]
Young’s Ground of Appeal & Hill’s First Ground of Appeal – Verdict unreasonable
[9]See paragraphs [157] to [176].
[10]See paragraphs [177] to [193].
Each of Hill and Young contend that the verdict against them is unreasonable and cannot be supported having regard to the evidence. There are common elements to the appeals, and separate aspects as well. It will be convenient to deal with them together, but highlighting the different arguments where necessary.
Any analysis of this ground of appeal must be carried out with the statement by the High Court in M v The Queen[11] in mind:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”[12]
[11]M v The Queen (1994) 181 CLR 487; [1994] HCA 63.
[12]M v The Queen, at 494-495 (internal references omitted); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, at 405-406.
The reference to the advantages enjoyed by the jury refers to the position of the jury as the body entrusted with the primary responsibility of determining guilt or innocence. In M v The Queen the Court stated:
“… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”[13]
[13]M v The Queen, at 493 (internal references omitted); Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7, at 621.
In Chamberlain the necessity for an appellate court to pay “full regard” to the consideration that the jury has had the benefit of having seen and heard the witnesses was referred to by Deane J.[14] His Honour went on:
“On all but “rare occasions” (see per Street C.J., Smith[15]), those considerations will make it impossible for an appellate court to conclude that the verdict of a jury that the guilt of an accused has been proved beyond reasonable doubt is unsafe or unsatisfactory.”[16]
[14]Chamberlain at 621, citing R v Coolwell [1982] 7 A Crim R 368, at 375 per Campbell CJ and Matthews J.
[15]R v Smith [1979] 2 NSWLR, at p. 310.
[16]Chamberlain at 621.
The “rare occasions” referred to by Street CJ is a reference to what was said by Barwick CJ[17] in Hayes v The Queen:[18]
“Consequently, I have come to the conclusion that it would not be dangerous in the administration of justice to allow the jury’s verdict to stand. In considering the matter, I have not taken the view that, so long as there is some evidence on which reasonable jurymen might be entitled to convict, there is no responsibility in a Court of Criminal Appeal in any case to consider whether [nonetheless] it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I agree with what was said in the joint judgment of Dixon C.J., Fullagar J. and Taylor J. in Raspor v. The Queen[19], and what was said by Sir Owen Dixon in Plomp v. The Queen[20]. These expressions of opinion were made in relation to courts of criminal appeal constituted under statutory provisions containing the formula ‘if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence’. In exercising its powers under such a formula, the court of criminal appeal must, of course, act on that view of the facts which in its opinion the jury were entitled to take, having seen and heard the witnesses. …
Occasions when a verdict can be set aside upon such considerations as I have mentioned will no doubt be relatively rare. But, in my opinion, the court of criminal appeal under the formula in the Criminal Appeals Acts or provisions obtaining in Australia has the responsibility to which I have referred, taking the facts to be as the jury were entitled to accept them, that is to say, of satisfying itself on the facts as so found that in the administration of justice in criminal matters it would not be dangerous to allow the verdict to stand.”
[17]The balance of the Court concurring.
[18]Hayes v The Queen (1973) 47 ALJR 603, at 604-605.
[19](1958) 99 CLR 346, at pp. 350-352.
[20](1963) 110 CLR 234, at p. 244.
The test in M v The Queen was adopted in Jones v The Queen.[21] Having referred to the test the Court went on to say:
“The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
“in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.””[22]
[21]Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, at 450-451 per Gaudron, McHugh and Gummow JJ.
[22]Jones at 451, quoting from M v The Queen at 493.
General synopsis
It will assist in consideration of this and other issues if a general synopsis of the case is understood.
The deceased[23], Hill[24] and Young[25] were all known to each other. Hill and the deceased had been friends for some time, including living in the same premises. Shortly before the events the subject of this appeal there had been a falling out. The falling out had several aspects to it:
[23]Usually referred to in evidence by his first name, Luke.
[24]Usually referred to in evidence as Brad, or Hilly.
[25]Usually referred to in evidence as Kerryn.
(a) the deceased and Darlene McClure (“McClure”) had known each other for many years (since McClure was about 13 years old) and had been friends; they had since fallen out and the relationship was acrimonious;
(b) McClure and Hill entered into a sexual relationship; McClure had known Hill for some years;
(c) Hill was also in a relationship with Young;
(d) Young was upset because Hill was having a relationship with McClure;
(e) McClure and the deceased had fallen out, as a result of which there was a deal of animosity from McClure, directed at the deceased and Young;[26]
[26]See AB 74 and 85. McClure was angry with the deceased because she believed he had told Young about her (McClure’s) relationship with Hill.
(f) the deceased and Young went out drinking on Friday 8 October, during which time they rang or sent texts[27] to Hill, pretending that they were in a relationship and sleeping together; and
(g) Hill was upset at what the deceased and Young had been alleging they had done, seeking to know from various contacts whether it was true, and making threats against both Hill and Young.
[27]The words “SMS”, “text”, “message” and “text message” will be used interchangeably to refer to text messages sent from one mobile phone to another.
On Friday 8 October, Hill was in Brisbane. So was Leigh Vanbreeman (“Vanbreeman”). That night was when the deceased and Young sent messages to Hill pretending that they were in a relationship and sleeping together. Hill decided to return to Gladstone, which he did in the company of Vanbreeman, Naomi Phillip (“Phillip”), and Ian Robinson (“Robinson”).[28] The evidence is that they drove in convoy; Hill travelled with Vanbreeman, him driving her car, while Phillip and Robinson were travelling together in another car.
[28]Where it is necessary to refer to Robinson’s father I will refer to him as Shane Robinson.
During the course of the evening of 8 October, Hill made a number of threats directed at the deceased and Young. Some of the threats were by calls to various of the witnesses, and others were by text to the deceased and to McClure. The threats were that he would kill the deceased, and Young as well.
Hill arrived in Gladstone and checked into the Amber Lodge Motel (“the motel”). That was at about 6.30 am on 9 October. Hill contacted Thorgood who collected Hill at about 9.00 am and took him to buy drugs. At about this time Hill was arguing with Young on the telephone.
On the morning of 9 October Young (who was at Malcolm’s house) went to see Hill at the motel. She was taken there by Thorgood, who had been asked (by Hill) to collect her.
When they arrived at the motel, Hill asked Thorgood if he wanted any amphetamines. He accepted some, which he ingested by eating. Malcolm rang Young a few times to make sure she was okay and safe, having been concerned for her safety at the time she agreed to go and see Hill. Young said she was safe and that she was in a motel with Hill.
Later in the afternoon of Saturday 9 October, Young returned to Malcolm’s house, where they sat on the verandah drinking alcohol. Malcolm asked Young how things were with Hill, and the answer was that they had all calmed down and “it’s good now”.[29] Some time at about 6.00 pm to 6.30 pm on 9 October, Irwin arrived at Malcolm’s house. Malcolm asked him to take her to the shop, and Young asked for a lift. Young was taken to Ann Street, the next street over from the motel. At that point, from what was said by Young to Irwin, Young was looking forward to getting some amphetamines.
[29]AB 75.
Some time between 8.00 pm and 8.30 pm on Saturday 9 October, Young called Malcolm to ask if they could borrow her car. Malcolm refused. Malcolm sent a text back to Young saying that they could not borrow the car, but that “If he[30] wants my car then pay me the $300 they owe me for that weed & 2p & I’ll drop it off”.[31] The reference to “2p” meant two points of amphetamines. That text was sent to Young, but it was Hill who replied (about 14 minutes later) from his own phone.[32]
[30]Referring to Hill.
[31]AB 490.
[32]AB 492.
There was a series of texts between Hill, Young and the deceased, tendered as an exhibit. Because they will be referred to frequently the contents of the relevant texts are set out below:
(a) between 9.00 pm and 9.11 pm the deceased and Young exchanged texts asking where the other was and what they were doing;[33]
[33]AB 492-493.
(b) at 9.13 pm Young texted the deceased saying that she had “Got on got a room”;[34] the phrase “got on” was accepted on the appeal as meaning that she had obtained drugs;
[34]AB 494.
(c) when the deceased responded “True u and billy”,[35] Young replied “Just me and my gear”;[36]
[35]Which was accepted as a reference to Hill.
[36]AB 494.
(d) Young then asked the deceased “Want to get fried with me”, and when the deceased asked where she was, Young replied: “In a room fried up you comin to be my fried friend only my friend”;[37]
[37]AB 495.
(e) the deceased’s response at 9.54 pm was “Is this set ups”,[38] to which Young replied “What do you think I want to be knocked as well”;[39]
[38]AB 495.
[39]AB 496.
(f) at 10.13 pm Young asked the deceased what movies he was watching, and the deceased responded at 10.33 pm: “Iron man 2. weres billy”;[40]
[40]AB 496; the reference to ‘weres billy” was accepted as meaning where was Hill.
(g) Young responded at 10.35 pm: “Fucks me why that”;[41]
[41]AB 497.
(h) at 10.39 pm the deceased called Young, leaving a message asking why she was not answering;[42]
[42]AB 497.
(i) Young did not respond until 11.08 pm when she said: “Sorry Trippin out a bit what you doin”;[43]
[43]AB 498.
(j) at 11.12 pm Young asked the deceased: “Are you comin I need company”, to which the deceased responded two minutes later: “Nar sorry Kizza”;[44]
[44]AB 499. The terms “rattal”, “rattled up” and “rattling” were accepted as meaning to take drugs.
(k) at 11.15 pm Young asked the deceased “Why you sleeping or got better offer”, to which the deceased responded nine minutes later with: “Yer Im gunna b. You catch a cab come chill with me for a bit. Rattal me up”;[45]
[45]AB 499.
(l) at 11.26 pm Young asked where the deceased was, and he responded that he was going to be at his mother’s place soon but it was “cool for ya to come around. I’ll pay for ya cab”;[46]
[46]AB 499.
(m) at 11.30 pm Young texted that the deceased’s parents’ place was “Not real private for when we get rattled up and freaky”,[47] and then she asked “What about where you are”;
[47]AB 500.
(n) at 11.32 pm the deceased told Young that he was leaving his friend’s place and going to sleep, and then at 11.40 pm he texted: “Yer well. Might just leave it then hey. Tex me if u wana come shout me a shot. X”;[48]
[48]AB 501.
(o) at 11.46 pm Young responded: “Well that knock back really made my day cheers fuck I have really lost the know how”;[49]
[49]AB 501.
(p) at 11.55 pm Young texted the deceased saying “Ill still drop you a shot if you want I wouldn’t feel comfortable rattling at your mums”; and then asked one minute later, “Have you got any clean ones”;[50]
[50]AB 501.
(q) at 11.57 pm the deceased texted: “Yer I can understand that. Yer if ya want ill pay for ya to get here and back” and then responded that he did not have any clean ones[51] but suggested she go to the hospital;[52]
[51]A reference to syringes.
[52]AB 502.
(r) two minutes later, now after midnight, the deceased texted Young: “Whats happen” and she replied a few seconds later: “Do you mind if I mix it, I don’t have scales”, to which the deceased replied “What ever”;[53]
[53]AB 502.
(s) a few seconds later the deceased asked Young: “When u coming”, to which the response was almost immediately: “Just trying to get myself together”;[54]
(t) the deceased’s response at 12.28 am was: “Ok. Well tex me when u on ya way”, and Young agreed.[55]
[54]AB 503.
[55]AB 503.
The sequence of texts can be interrupted at that point to introduce events established by oral evidence.
The deceased told Malcolm that Young had rung him or texted him, saying “she was in a motel room and could he go and see her”.[56] According to Malcolm, as relayed by the deceased, Young would not give the name of the motel but offered that if the deceased wanted to go, she would send a taxi to pick him up.[57]
[56]AB 70.
[57]AB 71.
At about 11.30 pm Weston was asked by Hill to buy some clean syringes, which he did.[58] When he got the syringes back to the motel room, Hill and Young were present together. Hill mixed up a mixture of drugs, apportioning it into three syringes.[59] He gave Weston one, who used it to inject himself, one to Young and kept one for himself. Weston recalled there having been five syringes in the packet. There is no mention of what became of the other two syringes. When Weston injected himself, he understood it to be amphetamines and the effect on him confirmed that. Weston then went outside to the car, preparatory to driving Hill to the power house.[60] Hill remained inside, with Young, packing up. Hill followed a short time later.
[58]AB 26.
[59]AB 27.
[60]AB 28. The prosecutor clarified with the Weston that this was “an actual power station”. The words “power house” and “power station” will be used interchangeably to refer to this landmark.
On the way to the power house Hill asked Weston to divert so that something could be dropped off.[61] Hill gave a series of directions to Weston which resulted in them pulling up next to a low set brick house with a letterbox close to the gutter.[62] This was the house where the deceased was living. When they had pulled up Hill threw an envelope onto Weston’s lap and asked him to put it in the letterbox. He did so, after which they drove on towards the power house.[63]
[61]AB 28.
[62]AB 28, 33. Bailey gave evidence that the house had two letterboxes, one right next to the gutter: AB 301.
[63]AB 29.
The text sequence resumes:
(a) at 12.41 am Young texted the deceased: “Pretty smashed after that me mate goin to drop it off now for I can’t move he’s in blue magen on way now”;[64]
[64]AB 503. The word “magen” was a typographical error for Magna.
(b) from that point, at 12.41 am, there was a series of 10 calls by the deceased to Young’s phone which were missed calls, and three texts, all trying to get an answer from her; during that time Hill also made two calls to Young, which were both missed calls; at the same time as Young was missing the deceased’s phone calls, Hill texted Young, at 12.51 am, asking: “Is this going in letter box”,[65] to which Young responded “Yes”; then Hill texted Young to say “Done”, and Young responded “Sweet”;[66]
(c) then at 12.56 am Young texted the deceased saying “In your letter box sorry cant move”.[67]
[65]AB 506.
[66]AB 507.
[67]AB 507.
On the way to the power house Weston was contacted by Robinson, who was in a car behind him.[68] They both pulled over and Hill switched cars, following which Weston drove back to Shane Robinson’s house.
[68]AB 29.
Some time at about 1.00 am or shortly afterwards the deceased injected himself with a syringe that contained a heroin based mixture. The consequence was that he died.
At about daylight on Sunday 10 October Robinson, Phillip, Hill and Young arrived at Shane Robinson’s house, where Weston was staying.[69] Hill said he needed to talk to Weston, and took him down to Shane Robinson’s bedroom. Once in the bedroom Hill said to Weston that: “our mate that we dropped that thing off to last night’s dead. This is the first one I’ve had anything to do with it and you need to shut your mouth”.[70]
[69]AB 30.
[70]AB 65.
Hill’s First Ground of Appeal – Contention (a): Hill’s hostility towards deceased did not continue
One of the main points raised by Hill was that there was no acceptable basis for the jury to conclude that the hostility evidenced by Hill towards the deceased, in his threats and texts, continued after he arrived in Gladstone. Central to that contention was the fact that the threats ceased once Hill arrived in Gladstone, and Hill reconciled with Young, who had also been the subject of the threats.
It is necessary to examine the conduct of Hill in some detail. Relevantly it commences with the events on Friday 8 October, when the deceased and Young went out for drinks in Gladstone. During that time they made phone calls to Hill, saying that they were out together and were sleeping together. When Young and the deceased arrived back at Malcolm’s house they told Malcolm about the calls to Hill, and that they were “shit stirring him”.[71] They said that they had told Hill that they were sleeping together, and they were together, and that Hill was not happy about it. The deceased and Young talked about the texts that he had sent them, and told Malcolm that Hill had said “Youse can all get fucked”.[72] According to Malcolm, the reason that Hill was not happy about it was “Kerryn was his supposedly missus and Luke was his mate”.[73]
[71]AB 30.
[72]AB 30.
[73]AB 30.
The test messages reveal the correspondence between Hill, the deceased and Young:
Friday 8 October
7.29 pm
Deceased to Hill
Sorry, I’ll call u back in 10 I’m in meeting
7.42 pm
Hill to deceased
I let u go once lets see who talks shit I just killed goose your next[74]
7.46 pm
Deceased to Hill
Man get off the shit and worry about ya let. U fucked me over enuf. I have no ideas what u r on about. Chill out she’s not ya girl so what r u on about. Its not the first time
7.48 pm
Hill to deceased
Missed Call.
8.58 pm
Hill to deceased
Missed Call.
9.17 pm
Deceased to Hill
Go away
9.18 pm
Hill to deceased
Never by Im going to hurt u and anyone dear to u tel that to the police
9.24 pm
Deceased to Hill
What ever
9.44 pm Hill to deceased Nothing bar dying myself is gona get me out of the mind state I’m in I’m going to kill u luke 9.49 pm Hill to McClure Darlene nothn matters any more im going to shoot luke Saturday 9 October 3.25 am
Hill to deceased
U have pushed me too far this time I no longr care about anything I wil kil Luke and u 2 if your with him u 2 laughin at me and how u got me then rub it in my face because u think I can’t do anything about cause Im disabled im gona show u how wrong u are u 2 took everything from me while I lay in hospital fuckn each other the whole time I have nothing. I swear to whoever you see as god I’m going to kil luke and if the police don’t have me I’m going to kill u. U think hiding behind brent wil save u u don’t know me at allo. I have so much hate in my heart right now I will shoot straight into that house kids or no kids. I’m not letn this one go I wil die first I have my gun and unlike u il use it and this time I won’t miss[75]
[74]The reference to “Goose” was to a dog jointly owned by either Hill and Young (AB 246), or by Hill and the deceased (AB 82, 116 and 244).
[75]There are several different ways to view this text. On its face, it was obviously intended for Young. However, it was not sent to her, but twice to the deceased, 24 seconds apart. It may be that Hill entered the wrong number by mistake. Alternatively he may have wanted the deceased to think Young had received it. Then again, he may have intended that the deceased would tell Young about it rather than threaten her directly.
By about 6.30 am on 9 October Hill had arrived in Gladstone, and checked into the motel.[76] After that there was no direct contact between Hill and the deceased.
[76]Elmer, AB 93-94.
The oral testimony of various witnesses also referred to the threats by Hill. On a number of occasions it was a case of the relevant witness relating what the deceased had told them about Hill and what they had told him. However, some were direct. Thus:
Saturday 2 October
Hardwick
She gave evidence that Young was staying at her house in the week leading to 9 October,[77] and during that week Young revealed that she had been receiving texts from Hill making threats. One threat was that he was going to kill the dog, and another that Young and the deceased were considered by Hill to be “lying, thieving bastards”, and Hill “would come and kill her and Luke, yeah.”[78]
Friday 8 October
8.00/9.00 pm
Fryburgan
The deceased telephoned Fryburgan saying that he was going out nightclubbing with Young, and that Hill had called “and told him that he was dead … Because he was going out [with] Kerryn”.[79]
10.30 pm
Cherie Malcolm (“Malcolm”)
Young and the deceased said they had made phone calls to Hill and were “shit stirring him”. They said they had told him they were sleeping together and they were together. Hill “wasn’t happy”. They told her that Hill had sent a text saying “Youse can all get fucked”, and that Hill just wanted to know what was going on with them sleeping together. Later in the evening Malcolm spoke to Hill, telling him that what Young and the deceased had said was not true, and they were just playing games. Hill “was wild, he was angry”.[80] Hill said “they can get fucked and he’ll come and see them in the morning”.[81] Hill told Malcolm “If these two fuckers think they’re going to do this shit to me and then wake up tomorrow with no piss in them, they’ve got another thing coming.”[82] Hill said that he was coming up that night, that “we could get fucked and he was going to kill everybody”.[83] During this time, Malcolm heard the deceased tell Hill that he [the deceased] “was at my place and to come get him”.[84]
Midnight
The deceased’s mother
The deceased told her that he and Young had been texting Hill, and stirring him up, and that Hill was making threats to the deceased. The threats were that Hill “was on his way from Brisbane and he was going to do this and do that” – she could not remember the details.[85]
Friday night/ Saturday morning
McClure
Hill told her that he was going to kill the deceased. He was angry and he was going to shoot him.[86]
Saturday 9 October
1.30 am
Malcolm
Hill called Malcolm and by his tone of voice he was a little bit angry.[87] He wanted to know who was at Macolm’s place, in particular if the deceased was still there.
9.30 am
Malcolm
She overheard Young and Hill arguing on the phone.[88] At one point Young said: “If you think I’m fucking that stupid, Brad, that I’m going to get in a car with you and your mates for you to give me a hot shot, then you’re fucking kidding yourself”.[89]
Lunchtime
Malcolm
Young said she was going to see Hill at a motel. Malcolm feared for her safety and rang her a few times to make sure that she was okay and that she was safe.[90] In those calls Young mentioned that she was at a motel in Hill’s company.
5.00 - 6.00 pm
Hardwick
Young told her that she and the deceased had got drunk and were stirring Hill. Hill was “pretty wild”.[91]
6.00 pm
The deceased’s mother
The deceased asked his parents to go around the block and see if there were any cars parked around the area, because he knew that Hill was coming after him.[92]
9.30 pm
The deceased’s mother
When she and her husband came home the deceased told her about the texts that he was getting on his phone, namely that Hill was texting and making threats that he was going to kill him, and he would take down anyone else in the house that was there.[93] The threats concerned the deceased’s mother enough that she asked the deceased to promise that he would not go near the motel.
Time unspecified
McNeil
She spoke to the deceased who told her that Hill “was apparently on his way from Brisbane to kill Luke”.[94] The deceased told her about some text messages he had received from Hill, about Hill coming to kill him. In one of the text messages Hill had said that he had killed the dog.[95] The deceased told her about another text message from Hill which said “I don’t care if you’re at your parents’ house. If there’s kids around, I will kill you”.[96]
10.34 pm
McNeil
The deceased told McNeil about messages he had received, including that Hill had killed Goose and that he intended to kill the deceased.[97]
About 5.30 am
Phillip
She gave evidence that she and Robinson (in one car) and Hill and Vanbreeman (in another car) drove from Brisbane to Gladstone. They stopped at a toilet station near Bororen. She overheard Hill talking to Robinson “about getting rid of Luke”.[98] Hill said “He needs to be taught a lesson, I need to teach him a lesson”.[99] She offered an opinion and was told to keep quiet and get in the car, but then overheard Vanbreeman say: “If you just want to scare him, there’s the stuff I have.”[100] That was a reference to heroin which Vanbreeman had.[101]
Time unspecified
The deceased’s father
He spoke to the deceased, who told him that Hill had threatened to harm him and his parents.[102]
[77]AB 240.
[78]AB 246.
[79]AB 59. The reference to “Kerryn” is to Young.
[80]AB 65.
[81]AB 65.
[82]AB 66.
[83]AB 66.
[84]AB 66, 74.
[85]AB 164.
[86]AB 82.
[87]AB 66.
[88]AB 67.
[89]AB 68.
[90]AB 68.
[91]AB 247.
[92]AB 165.
[93]AB 166.
[94]AB 116.
[95]AB 116.
[96]AB 117.
[97]AB 126.
[98]AB 334.
[99]AB 334.
[100]AB 334.
[101]AB 334, 357.
[102]AB 177.
As shown above, Hill made threats orally and by text, commencing early on Friday evening and continuing through until 3.25 am on Saturday morning. The threats were direct and specific. They were that he would kill the deceased by shooting him, kill Young as well, and was not concerned if children were injured or killed in the process. Just by the texts alone the threat to kill the deceased was repeated four times. In addition the evidence establishes that he made the same threat orally. By the texts alone the threats were maintained over a period of nearly eight hours between 7.42 pm on 8 October until 3.25 am on 9 October. Within that time period Hill left Brisbane intending to go to Gladstone, a trip which, on the evidence, was for the purpose of causing harm to the deceased.
Hill’s First Ground of Appeal – Contention (a) – Discussion
I do not accept the submission that merely because the threats were not continued during the course of Saturday, either orally or by text, that meant that Hill’s anger against the deceased had abated. If that were truly so then there would be no reason why Hill would not have contacted the deceased when he was delivering the envelope of drugs to the letterbox. If the evidence of Phillip was accepted, Hill continued to express a desire to kill or harm the deceased, after the delivery of the drugs. According to that evidence when Hill got into Robinson’s car after the delivery he said, “That’s one mess taken care of”, and when asked to clarify what he meant, said “it’s either going to hurt him or kill him” and “I gave him that whole bag I got off Leigh”.[103]
[103]AB 336, 364. The reference to “Leigh” is to Vanbreeman.
Nor do I accept the submission that just because Hill reconciled his differences with Young that meant that he no longer bore ill will towards the deceased. The two are not necessarily connected and the reasons given above apply equally.
The evidence of Phillip was, if accepted, quite telling against Hill. There was no doubt a considerable attack upon her credit, based not only on her drug taking history, but also contradictory statements, a propensity to lie and the fact that she had been given an indemnity by the Attorney-General, and therefore had reason to implicate the others. However, when Phillip’s evidence is compared with that of Robinson,[104] Vanbreeman,[105] Weston[106] and Thorgood,[107] there are substantial areas where her evidence was corroborated by those witnesses named below, in circumstances where there was no suggestion whatever that their evidence had been modified. Thus:
[104]From AB 133.
[105]From AB 14.
[106]From AB 24.
[107]From AB 37.
(a) her evidence as to her relationship with Robinson – corroborated by Robinson;[108]
[108]AB 330, 332; AB 133.
(b) that when they were on the Gold Coast one of the purposes was to meet a person called “Joseph” – corroborated by Robinson;[109]
[109]AB 331; AB 141.
(c) that the car they were in was a Suzuki Swift and silver in colour – corroborated by Weston, and (partly) Robinson;[110]
[110]AB 331; AB 29. Robinson said a different colour.
(d) that she drove to Gladstone with Robinson, and that they were on the run – corroborated by Robinson;[111]
[111]AB 331-332; AB 137, 140.
(e) that Robinson had guns in his possession at the time – Robinson;[112]
[112]AB 331; AB 138.
(f) that the other vehicle belonged to Vanbreeman and was white in colour – corroborated by (partly) Robinson and Vanbreeman;[113]
[113]AB 332; AB 15, 138. Phillip had a different make of car from that said by Vanbreeman.
(g) that Vanbreeman did not have a licence – corroborated by Vanbreeman;[114]
[114]AB 332; AB 22.
(h) how Weston dropped Hill to Robinson and Phillip in the early hours of Sunday morning – corroborated by Weston;[115]
[115]AB 335; AB 29.
(i) the location of where that occurred, and that Weston was driving a Mitsubishi Magna – corroborated by Weston;[116]
[116]AB 335, 336; AB 25, 27.
(j) the manner of the transfer, namely that Hill got out of one car and got into the car of Robinson and Phillip – corroborated by Weston;[117]
[117]AB 336; AB 29.
(k) the manner of the next transfer, namely that Hill was dropped to a mate on the roadside near Mount Larcom – corroborated by Thorgood;[118]
[118]AB 336; AB 44.
(l) the events the next morning, in terms of Hill, Young, Phillip and Robinson meeting and then travelling to Shane Robinson’s home, where Weston was present – corroborated by Weston;[119]
[119]AB 337; AB 30.
(m) that Hill wanted to speak to Weston, at Shane Robinson’s house – corroborated by Weston;[120]
(n) the way in which that contact occurred, namely that Hill took Weston down to Shane Robinson’s bedroom, in order to speak to him alone – corroborated by Weston.[121]
[120]AB 337-338; AB 30.
[121]AB 337; AB 30.
Therefore, in my view, whilst it is true to say that there was reason to doubt Phillip’s evidence, equally there were reasons why the jury might conclude that significant parts of her evidence were correct. That could well have led the jury to accept her evidence as to the conversations she referred to, both on the way up to Gladstone,[122] and after the drugs had been delivered to the deceased’s house.
[122]Particularly at the Bororen rest stop area.
It is important to note one concession made by Young. It is that the evidence of Young’s son, Watson, “was sufficient to establish that [Young] had knowledge that the “shot” being delivered to the deceased was heroin”.[123] The importance of this concession lies not only in its impact upon Young, but its impact upon the way in which the jury might have accepted the evidence of witnesses at the trial. The concession accepts that it was open to the jury to find that Young knew that the shot being delivered to the deceased was heroin. If it was open to the jury to make that finding, it was open to the jury to conclude the following about some of the evidence:
[123]Young’s Outline of Submissions, filed 3 February 2014, at para 5.17.
(a) that the source of the heroin was Hill; there was no evidence at all that Young had access to heroin independently of Hill;
(b) that Hill’s source of heroin was, as Phillip said, Vanbreeman; she was a heroin addict who, on Phillip’s account, travelled with them from Brisbane to Gladstone and offered heroin to Hill; the text messages reveal contact between Hill and Vanbreeman while he was in Gladstone, at 8.11 pm and 8.19 pm on Saturday;[124]
[124]AB 489, 490.
(c) if Phillip’s evidence was accepted on that part, and given that her evidence was corroborated in the ways identified above, it was open to the jury to accept Phillip’s evidence of the conversations that were had been Hill, Robinson and Vanbreeman, concerning Hill’s intention to cause harm to the deceased;
(d) it could also lead to an acceptance by the jury of Phillip’s evidence as to what was said when Hill joined them after the delivery; that included comments by Hill: “That’s one mess taken care of”, and “it’s either going to hurt him or kill him”;[125]
[125]AB 336, 364.
(e) those comments also included, according to Phillip’s evidence, Hill saying, in response to Phillip asking him what he had done, “I gave him that whole bag I got off Leigh”;[126]
[126]AB 336, 364. The reference to “Leigh” was to Vanbreeman.
(f) Weston’s evidence of what occurred after he obtained new syringes and returned to the motel is affected as well; Hill mixed some drugs and filled three syringes; Weston injected himself with one, and could tell from its effects that the drugs were amphetamines; the concession that Young knew the shot was heroin means that none of those three syringes were part of what was delivered to the deceased’s letterbox;
(g) that being the case, Weston’s evidence of what happened the following morning, when Hill took him to Shane Robinson’s bedroom in order to tell him to keep his mouth shut because, “Our mate that we dropped that thing off to last night’s dead. This is the first one that I’ve had anything to do with it …”,[127] takes on a new significance; once it is accepted that the thing that was dropped off to the deceased was actually heroin, the jury could reasonably conclude that Hill’s statement to Weston that morning was generated by more than concern about being peripherally involved in the delivery of drugs to someone who had died;
(h) the evidence from McNeil as to the deceased tasting the drugs, saying it tasted foul and dry retching, and then referring to the drugs as amphetamines, also takes on a different significance; whether the word “amphetamines” was used or the word “gear”,[128] the deceased did not identify the drugs as heroin; Johnson’s evidence was that the deceased used the term “Harry” for heroin;[129] that does not, of course, mean that the deceased did not have other terms for heroin, but the only identified term that he used for heroin was not a term used when referring to what he had tasted in conversation with McNeil.
[127]AB 30.
[128]This was the alternative term in McNeil’s first statement: Statement of A McNeil, dated 10 October 2010.
[129]AB 227.
The assessment of this area of the evidence, as with many others, is affected by the fact that the jury had the chance to see and hear the witnesses, whereas this Court has not. The jury, therefore, had a considerable advantage in terms of the assessment of what evidence was believable or not.
In this particular case that advantage is compelling. Acceptance by the jury that Young knew that it was heroin that was delivered turned on the way in which the jury viewed the evidence generally, but specifically that of Watson and Phillip. The concession by Young lends weight to the view that the jury probably accepted the evidence of Watson. However, once they reached that view, it meant acceptance of relevant parts of Phillip’s evidence was likely, with the impacts noted above. This is quintessentially the type of case to which M v The Queen and Jones v The Queen referred, where the Court should give due weight to the advantages enjoyed by the jury, and recognise that the jury was the body with the primary responsibility of determining guilt or innocence.
Hill’s First Ground of Appeal – Contentions (b), (c) and (d): deceased injected drugs on voluntary and informed basis
There were three related contentions advanced by Hill: first, that the deceased’s injection of the drugs just prior to his death was on a voluntary and informed basis; secondly, there was no attempt by Young to disguise the effect upon her of the drugs she had taken, and her description was consistent with opiates, not amphetamines; and thirdly, that the deceased’s statement to McNeil, that he would only take half of the drugs that had been delivered, contained an implicit admission that he knew that the drugs were something other than amphetamines, and care needed to be taken. These three contentions may be conveniently dealt with together. They all centre on a contention that it was likely that the deceased knew that he was taking something other than amphetamines.
The evidence in this respect contains a number of strands. The first is the evidence of Weston as to what took place prior to the delivery of the drugs. At Hill’s request he purchased some syringes, and then Hill mixed up a solution which was put into three syringes, and shared one each. Weston injected himself and knew from the effect that it was amphetamines. He saw, or thought he saw, Hill and Young doing the same.[130] Immediately following that Weston went to the car, leaving Hill packing up inside. He and Hill left in the car and made the delivery to the deceased’s house.
[130]In his evidence-in-chief he said that Hill and Young were both half facing away from him: AB 27. Counsel for Hill established in cross-examination that in a prior statement Weston had said that he “saw Hilly and [Kerryn] doing the same thing [as he had done] at the same time”: AB 32.
Secondly, the evidence of Thorgood was that on Saturday when he dropped Young to the motel, Hill offered him some amphetamines, which he ate.[131]
[131]AB 43.
Thirdly, the evidence of Lindsey Mastroieni (“Mastroieni”) was that in a conversation with the deceased on Saturday night, he said that the drugs had been dropped off into his mail box and he was going to take them. She urged him not to because he said it was already made up.[132]
[132]AB 102.
Fourthly, the evidence of McNeil as to her conversations with the deceased on Saturday night. He said he was getting “stuff dropped off to him” by one of Young’s friends, who he identified as Malcolm.[133] When he revealed that it was already in liquid form, she advised him not to take it, saying that she “didn’t think it was a wise idea and that [she] thought he was basically being set up”.[134] At her urging to taste it, he did so, saying it tasted “foul”, and he had never tasted amphetamines before so he did not know what it would taste like.[135] He said he would ring Young, and for McNeil to call him back in 10 minutes.[136] In the end the deceased said he was only going to have half of it.[137]
[133]AB 117-118.
[134]AB 118.
[135]AB 118-119.
[136]AB 119.
[137]AB 128.
Fifthly, the evidence of Fox was that at about 1.00 am or 1.30 am on Sunday morning, she listened in on a conversation between Mastroieni and the deceased.[138] The deceased said that Young had phoned to try and get him to meet her at a motel room, but he was concerned it was going to be a set up with Hill, so he did not go. However, he said that Young was coming over to his house in a taxi to drop off a package containing “Gear. Pre-mixed shot.”[139] Mastroieni had told him that he should not take the pre-mixed shot, but the deceased said that “they’d been too good of friends for too long for them to do such a thing to him”.[140]
[138]The telephone was on loud speaker in the centre of the table.
[139]AB 201-202.
[140]AB 202. In the circumstances the reference to “they” and “them” must have meant Young. If it meant both Young and Hill, that does not assist the appellant’s case, as it would reinforce the view that the deceased did not think he was getting anything that might harm him.
Sixthly, the evidence of Watson[141] was that Young had spoken to him eight days after the death of the deceased. In an hysterical and crying telephone call Young said that she and the deceased “were going to take heroin together, that she had taken it, … she got sick from it, so she told Luke that she was no longer going to see him, and to take it on his own.”[142] In the same conversation Young said that “she was going to have heroin with [the deceased] and have sex with him to get back at Brad”, and then “she told me that she had taken it and got sick from it and didn’t proceed with seeing him”.[143]
[141]Young’s son.
[142]AB 214.
[143]AB 214.
Seventhly, the evidence from the paramedics that they had seen puncture marks on the deceased’s abdomen or just below the left nipple,[144] and the forensic evidence that the only drugs in the deceased’s body were morphine and 6‑monoacetylemorphine, which are derivatives of heroin, and codeine, which was likely from a painkiller the deceased had taken.[145]
[144]AB 276, 281, 283 and 286.
[145]AB 208, 370-372, 472.
In addition the contention relies upon the texts sent by Young and the deceased late on the Saturday night: see paragraph [24] above.
Hill’s First Ground of Appeal – Contentions (b), (c) and (d) – Discussion
The contention seeks to advance that when Young told the deceased, at 12.41 am that she was “pretty smashed after that”, and later that she could not move, that would have been understood by the deceased to be signifying the effect of opiates, not amphetamines. I do not accept that contention:
(a) from as early as 9.13 pm Young had told the deceased that she had “got on”, which was accepted as meaning that she had obtained drugs;
(b) there was no evidence to suggest any history of heroin use by Young, so when she said at 9.14 pm, in answer to whether the room was occupied or held by Young and Hill, “just me and my gear”, the phrase “gear” could not have been reasonably understood as meaning anything other than amphetamines;
(c) then at 9.52 pm when Young said that she was in a room “fried up”,[146] there is nothing in that communication to suggest anything other than their usual drug taking, namely amphetamines rather than heroin;
[146]A phrase accepted as meaning that she had taken drugs.
(d) then at 11.08 pm Young texted to say that she was “trippin out a bit”; nothing in that description would betray any drug other than what she normally took; in any event the references at this point by Young to her having taken drugs, are all earlier than the episode where Weston arrived and they shared amphetamines; that being immediately before Hill and Weston left on the journey that involved delivering the drugs to the deceased’s residence;
(e) the next reference is the “pretty smashed” comment at 12.41 am; given what had been said up to that time, I am by no means convinced that the deceased would have understood that to mean something other than the drugs she normally ingested;
(f) the same applies to the reference at that moment to “I can’t move”, and then the comment to the same effect 15 minutes later; in my view it is too much of a stretch to say that those phrases should be understood as signifying the use of opiates rather than amphetamines.
The other evidence does not, in my view, compellingly point to the conclusion contended for by Hill. The evidence was that, unusually, the deceased took delivery of drugs in a pre-mixed form. That concerned McNeil enough to urge him not to take it because he would be doing so sight unseen. Indeed, counsel for Hill cross‑examined McNeil in an attempt to establish that there was an unwritten rule in the drug scene that one did not inject drugs if you had not made them up yourself, or seen them made up yourself,[147] and got acceptance to the proposition from Mastroieni.[148] The exchange between McNeil and the deceased about whether he should or should not take the drugs has to be seen in that light. Similarly, when McNeil urged the deceased to taste it first, he did so, dry retching and saying that it tasted foul. His comment at the time explained the reaction. He had not tasted amphetamines previously, even though he had injected them. The jury could reasonably conclude that also applied to heroin.[149] In my view the same applies to the deceased’s suggestion that he would only take half. Whilst this might betray a suspicion about the general circumstances, namely his concern about a set up and taking drugs pre-mixed when he had not seen them mixed, there was a counter balancing factor, namely that he trusted Young and expressed that trust to McNeil at the time.
[147]AB 128.
[148]AB 107.
[149]There as no acceptable evidence at the trial that the deceased had ever used heroin before. Johnson’s evidence did not go so far: see paragraphs [61] to [62].
In my view that does not go far enough to establish that there was a voluntary and informed taking of the drugs which had been delivered. It was open to the jury to conclude that it merely demonstrated that there were some suspicions held by the deceased, but they were allayed by his trust in Young. Even the fact that he may have injected some of it into his stomach first does not go so far as to show that he knew it was heroin, or at least something that was not amphetamines.
Hill’s First Ground of Appeal – Contentions (e), (f) and (g): “gear” could mean heroin; Crown mistakenly told jury they could be certain deceased did not use heroin; and unlikely deceased had not tasted amphetamines
Three further contentions raised on Hill’s appeal were that: first, in the text message from Young when she referred to “gear”, that could have referred to heroin; secondly, there was a misstatement by the Crown to the jury when it submitted that it they could be confident that the deceased did not use heroin,[150] because there was some evidence that the deceased did use heroin or could have used heroin; and thirdly, the evidence by McNeil, that the deceased had not tasted amphetamines before, was unlikely. These three points can conveniently be dealt with together.
[150]Supplementary Record, AB 2.
The evidence as to how the term “gear” was used was relatively short in compass. Vanbreeman used that term to refer to “heroin”.[151] Robinson referred to speed or amphetamines as either “dope” or “gear”.[152] Robinson gave evidence that, with reference to amphetamines, “so many people call it so many different things”.[153] He clarified that, saying that, to him, the word “gear” meant methamphetamines or ice.[154]
[151]She also used the term “dickie” for heroin: AB 21.
[152]AB 141-142.
[153]AB 142.
[154]AB 142. It should be noted that Amphetamine (molecular formula: C9H13N) is distinct from Methamphetamine (molecular formula: C10H15N), which is also known speed, meth and ice: The Merck Index Online.
Hill’s First Ground of Appeal – Contentions (e), (f) and (g) – Discussion
Apart from the evidence by Watson[155] as to the conversation with his mother, namely when she said eight days after the event that she and the deceased were “going to take heroin together”,[156] there was no evidence to suggest that Young had been or was a heroin user at the time. There was certainly evidence that she was an amphetamines user. Therefore, it was open to the jury to find that when she referred to “gear” she was referring to amphetamines. There is no compelling basis to think otherwise. Indeed, given that she was texting the deceased, who was an amphetamines user and supplier, it is likely that she was referring to amphetamines.
[155]Young’s son.
[156]AB 214.
The evidence in relation to the deceased’s heroin use was sparse, to say the least. Reliance was placed upon the evidence given by Johnson, but when examined closely that evidence was hardly persuasive:
“Is it right you were aware that Luke – Luke told you that he used drugs? --- Yes.
What sort of drugs? --- Amphetamines.
Now, in relation to heroin, what terminology did he use for heroin? --- Harry.
Did Luke ever talk about heroin? --- He had a couple of times, but not much. I didn’t think that he used it much.”[157]
[157]AB 227 (emphasis added).
It can be seen that the only reference to heroin was: first, the word that the deceased used for it, namely Harry; and secondly, the answer to a question about whether the deceased ever talked about heroin. Johnson’s added comment that “I didn’t think that he used it much” was quite vague and amounted to no more than rank speculation.
It is true that other witnesses described the deceased as taking a variety of drugs, but none of them referred to heroin. Thus, the jury were left in the position that there was simply no evidence that the deceased had ever used heroin. In those circumstances, given the evidence that Young and Hill were or had been close friends of the deceased, and drug users themselves,[158] it was, in my view, open for the prosecution to invite the jury to find that both appellants would have known that the deceased did not take heroin. Indeed, on the state of the evidence as to the deceased’s drug use, it was open for the jury to make that finding.
[158]In the case of Hill, he was also a supplier of drugs.
Complaint is made that in his own summing up the learned trial judge did not correct the alleged misstatement,[159] and did not refer to defence counsels’ observations about the deceased’s broader drug use. However, the observations about the deceased’s broader drug use fell into two categories. The first was a reference to his use of amphetamines, cannabis and ecstasy.[160] The second was to refer to Johnson’s evidence about heroin.[161]
[159]About the deceased’s not using heroin.
[160]Supplementary Record, AB 28.
[161]Supplementary Record, AB 28 and 35.
In my view there was nothing of substance in this complaint. The evidence of heroin use was non-existent, even if one had regard to the evidence of Watson about what Young told him eight days after the event.[162] I do not consider that the jury was misled in any material way.
[162]That was simply a statement of intention, rather than evidence of use.
The contention that McNeil’s evidence (namely that the deceased said he had never tasted amphetamines before) was an unlikely claim, does not advance Hill’s appeal. McNeil gave evidence that he said it, and it was for the jury to assess whether they believed McNeil, and whether that statement had any veracity. Critical to that assessment was the fact that the jury got to see and hear the relevant witness, an advantage which this Court does not have. Looked at objectively, if a person was a long time amphetamines user, and administered those drugs by injection, it is not beyond the realms of likelihood that the person would not know what the drug actually tasted like.
Further, the fact that when he did taste the drug it caused him to dry retch, does not advance the matter. It is urged that that reaction was consistent with “the commonly understood possible nauseous side effect of morphine”.[163] However, if one did not know what amphetamines tasted like, nor what heroin tasted like, why would dry retching at the taste be telling one way or the other? Further, the deceased only tasted the mixture at the urging of McNeil, who told him not to try it without testing it. Had the deceased been accustomed to tasting amphetamines, or even had he been an occasional taster of amphetamines, one would have expected him not to have made the comment which McNeil related.
[163]Hill’s Outline of Submissions, filed 28 January 2014, para 54.
The final point in this area of consideration is the contention that because the deceased said to McNeil he would only take half of the drugs, that was an implicit admission that he understood the drugs to be something other than amphetamines and care needed to be taken.[164] McNeil’s evidence was that the deceased said he was only going to have half of the drugs.[165] The context was that there was a series of phone calls between the deceased and McNeil that night which included these elements:
[164]Hill’s Outline of Submissions, filed 28 January 2014, para 55.
[165]AB 128.
(a) the deceased revealed that he might be in some trouble, because Hill was apparently on his way from Brisbane to kill him;[166]
[166]AB 116.
(b) the deceased told McNeil why Hill was going to kill him, and that was because of what he and Young had done while they were out, calling Hill to say that they had slept together;[167]
[167]AB 116.
(c) the deceased talked about the texts he had received from Hill, revealing that Hill was coming to kill the deceased, and had killed the dog;[168]
[168]AB 116.
(d) the deceased revealed the conversations or texts with Young, who was trying to get him to go to a hotel room to have sex;[169] McNeil urged him not to do that because “there was something going on and that Hilly was trying to kill him really”;[170]
[169]AB 117.
[170]AB 117.
(e) at her urging he reconsidered and decided not to go to Young;[171]
[171]AB 117.
(f) McNeil urged him not to trust Young, but the deceased said he had been out with her the night before, and shouted everything, and “thought that Kerryn was someone he could trust”;[172]
[172]AB 117.
(g) McNeil said she was worried for him, and urged him to take the texts quite seriously, and the deceased indicated that he may not sleep in his bedroom that night but instead may sleep in the lounge room;[173]
[173]AB 117.
(h) the deceased said that he was “getting stuff dropped off to him” by “one of [Young’s] friends”;[174] he identified that friend as Malcolm;[175]
[174]AB 117.
[175]AB 118.
(i) the deceased said he was going to take the drugs which were in liquid form, and they had been dropped in his mail box;[176]
[176]AB 118.
(j) McNeil urged him not to take them, but the deceased said he would; McNeil said it was not a wise idea, and told him she thought “he was basically being set up”;[177]
[177]AB 118.
(k) she urged him to at least taste it, which he did, saying it tasted foul; he said that he had never tasted amphetamines before so that he did not know what it would taste like;[178]
(l) in that context the deceased said that he would only have half of it.[179]
[178]AB 118-119.
[179]AB 128.
When seen in its proper context, the deceased’s statement that he would only take half of the drugs was prompted by the urging of McNeil, which was largely centred on her concern that there may be a set up involving Hill, and that the deceased should be very cautious about the delivered drugs. In that sense, one can understand that an inference might be drawn that the deceased thought the drugs were something other than amphetamines. Equally available to be drawn is the inference that the drugs were amphetamines, but possibly contaminated in some way. In any event, McNeil’s evidence was that the deceased tasted the drugs, reacted by saying that they were foul and he was dry retching, but made a comment that was consistent with him thinking they were amphetamines; that is, the deceased said he had never tasted amphetamines before so he did not know what it would taste like.
In my view it was open for the jury to conclude from that evidence that whilst the deceased acknowledged he should take care, nonetheless he reposed trust in Young, and his concession was to taste the drugs first and to take only half. That does not necessarily point to knowledge that the drugs contained heroin, rather than amphetamines. It was open to the jury to conclude that whilst he had reservations about the circumstances of the delivery, and Hill’s possible involvement, he trusted Young and thought what he had was a syringe of amphetamines.
motel; and Hill not complicitHill’s First Ground of Appeal – Contentions (h) and (i): no plan to lure deceased to
The final two points advanced on behalf of Hill were: first, that the deceased’s request for a supply of drugs from Young was contrary to the theory that Young was trying to lure him to the motel; and secondly, there was no evidence that Hill was complicit in Young’s supply of the drugs. These two points may be considered together.
The text messages set out at paragraphs [23] and [24] are important to a consideration of these issues. Relevantly they commence at 8.26 pm on Saturday night, 9 October. At that time Malcolm declined to let Young use her car, complaining to Young that if Hill wanted the car then he should pay her the $300 that he owed her.[180] It was not Young who responded, but rather Hill, at 8.40 pm, and directly by text to Malcolm.[181]
[180]AB 490.
[181]AB 492.
Hill’s First Ground of Appeal – Contentions (h) and (i) – Discussion
It was open to the jury to conclude that Hill’s 8.40 pm response to Malcolm’s text signified that Young and Hill were together, as Hill saw Malcolm’s text. Equally it is possible that Young telephoned Hill and mentioned the text from Malcolm, but nonetheless that would suggest Young and Hill being in contact.
At 8.49 pm Hill texted Powell saying: “I only wanted a lift to toolooa im right now anyway”.[182] It was argued that the reference to “toolooa” referred to a part of Gladstone on the other side of town from where the motel was. However, the motel itself was in Toolooa Street. The jury may well have accepted that this text meant that Hill wanted a lift back to the motel, and was there.[183]
[182]AB 492.
[183]See further discussion of this at paragraph [111].
Immediately thereafter, at 9.00 pm, the first of the texts between Young and the deceased, concerning where he was, what he was doing and would he come to the motel, commenced. Whilst the ensuing text conversation was going on between Young and the deceased, Hill texted McClure at 9.09 pm asking “U with Luke”.[184] A few minutes after that, at 9.13 pm, Young texted the deceased to say that she had “Got on got a room”. The deceased’s response was to ask her whether it was she and Hill, by the phrase “True u and billy”.[185] In my view it was open to the jury to understand that as meaning the deceased was asking not “are you with Hill right now”, but whether she and Hill had got the room. Young’s response at 9.14 pm was “Just me and my gear”. It was open to the jury to understand that response as being a lie. On any view her answer that it was just herself who had got or was using the room was untrue.
[184]AB 493.
[185]AB 494.
Three minutes after that response, at 9.17 pm, was the first direct invitation by Young to the deceased, namely “Want to get fried with me”.[186] Twenty-four minutes later the deceased asked Young where she was, and Young responded about 11 minutes later, at 9.52 pm: “In a room fried up you comin to be my fried friend only my friend”.[187] About two minutes later, at 9.54 pm the deceased asked: “Is this set ups”.[188] The jury were entitled to conclude that was a question by the deceased, indicating that he wanted to know whether Hill was at, or would be at, the room from which Young was texting. Young’s answer three minutes later at 9.57 pm was: “What do you think I want to be knocked as well”.[189] It was undoubtedly open for the jury to conclude that answer to signify at least three things, namely: that Hill was still hostile and intending harm towards the deceased; that if the deceased was caught at the room with Young, Hill would harm her as well; and that wherever she was, Hill was absent.
[186]AB 495.
[187]AB 495.
[188]AB 495.
[189]AB 496.
But even if Hill was then absent, how could Young know that he would remain away if the deceased accepted the invitation to come over? Young’s invitation was to come over and get “fried”, which was accepted at the trial as meaning to take drugs. If Hill were truly absent at the time she was making these statements, and she intended that she and the deceased would be together in the motel room and in a drug induced state, how could she possibly be sure that Hill would not return and cause harm to both of them? In the circumstances it was open to the jury to infer that these statements were also untrue, and that Hill was present.
The exchange between the deceased and Young continued. At 10.13 pm Young asked what movies the deceased was watching. The answer, 20 minutes later at 10.33 pm was “Iron man 2. weres billy”.[190] It is significant that the deceased again asked about the presence of Hill. In the context of the previous comments, that would hardly have been asking about where his lately reconciled friend was, as opposed to asking about where a hostile opponent was. After all, the deceased and Hill each had the other’s phone number and had exchanged texts before. However, the deceased did not correspond with Hill, but with Young, querying where Hill was.
[190]AB 496.
Young responded two minutes later at 10.35 pm: “Fucks me why that”.[191] That response may have meant that Hill was not present at that time, and that Young did not know where he was. However, that may not be particularly significant as it was then still an hour and a half before the time when Weston said he went to the motel and met Hill and Young there.[192] The other alternative is that the answer by Young was deceptive.
[191]AB 497.
[192]Which Weston put as midnight.
There followed a period of about half an hour where Young did not respond to the deceased. The deceased tried to call her, rather than texting, and left a message at 10.39 pm, asking why she was not answering.[193] The silence was broken at 11.08 pm when Young texted saying “Sorry Trippin out a bit what you doin”.[194] Young did not wait for an answer, texting four minutes later at 11.12 pm: “Are you comin I need company”.[195] At that point Young clearly still requested the deceased to come and join her. That was over two hours after her first invitation. During that time the deceased had queried whether Young was with Hill and where Hill was, including asking whether the invitation was a set up. In response to this last invitation the deceased declined, explaining that he would be going to his mother’s home, but that Young could join him there.[196] That explanation was given at 11.28 pm. That is about the time that Weston says he went to the motel, and Hill was there, with Young. It was therefore open to the jury to accept that at about this time Hill was at the motel, with Young.
[193]AB 497.
[194]AB 498.
[195]AB 499.
[196]AB 499.
At 11.24 pm the deceased suggested to Young that she catch a taxi, join him and “Rattal me up”.[197] The deceased then suggested that she join him at his mother’s place, which was where he was going shortly. At 11.30 pm that was declined by Young on the basis that it would not be private enough. At that point the deceased sent a text which, on any view, signified he was certainly not going to go over to the room where Young was. He said: “Yer well. Might just leave it then hey. Tex me if u wana come shout me a shot. X”.[198]
[197]This was accepted to be a reference to taking drugs; AB 499.
[198]AB 501. It is notable that this text ended with an “X”, the usual symbol for a kiss. The jury may well have concluded that this revealed the deceased’s fondness for, and trust of, Young.
At that point, namely 11.40 pm, the evidence of Weston shows that Young and Hill were together at the motel. It was the deceased who had suggested that rather than him going to where Young was, she join him and take some drugs. It was in that context that at 11.55 pm Young texted the deceased to say: “Ill still drop you a shot if you want”.[199] At that point there is no question that Hill and Young were together. At about that time Hill asked Weston to go and buy some clean syringes which he did. In that context, Young texted the deceased, at 11.56 pm, asking him, “have you got any clean ones”.
[199]AB 501.
However, the more significant aspect of the text by Young at that time is that Young is the one who was asked to bring the deceased a shot, and it is Young who offered to bring it herself.[200] Indeed, the offer by the deceased to pay for the cab was so that Young could go to his place to bring the drugs, then go back to where she was.[201] In all of those responses by Young there was no mention of Hill, either being present or being involved at all. Yet on Weston’s evidence that was clearly at a time when Hill was present at the motel, and requesting Weston to get syringes so that drugs could be mixed up and supplied.
[200]AB 501.
[201]AB 502.
In the context of the exchanges as outlined above, at 12.06 am the deceased asked Young what was happening, and Young responded 11 minutes later saying, “Do you mind if I mix it, I don’t have scales”.[202] It was another 24 minutes before Young announced to the deceased that the drugs were on their way, but it was only at that point that Young said that it would not be her taking the drugs, but rather “me mate” who was in a blue Magna.[203] While she did not mention Hill, Weston’s evidence establishes that it was Hill who was delivering the drugs. Weston did not know where they were going and expected that Hill would get out of the car when they pulled up. It was only at that point that Hill gave Weston the envelope to put in the letterbox. It was, in my view, open to the jury to understand Young’s response at that time as continuing to conceal Hill’s involvement.
[202]AB 502.
[203]AB 503.
Then follows the period of time from 12.43 am to 12.56 am, during which time the deceased tried to call Young eight times and sent her three texts, all of which went unanswered. Indeed, during that time the deceased texted on both of his telephones, which could have been accepted by the jury as signifying that he was concerned that he was not getting an answer.[204] During that period Young answered Hill’s texts, while still ignoring the phone calls and texts from the deceased. The exchange between Hill and Young was Hill asking “Is this going in letter box”, being told “Yes”, and then telling Young that he had done so.[205] At that point Young texted the deceased, breaking the period where she was not responding, telling him, “In your letter box sorry cant move”.[206]
[204]The text records show that the deceased used two telephone numbers, 0749784045, and 0458656944.
[205]AB 506-507.
[206]AB 507.
The sequence of communications revealed above and specifically their timing, demonstrate there was ample evidence on which the jury could conclude that Hill was complicit in Young’s agreement to supply drugs to the deceased. It was Hill who asked Young whether the delivery was to go in the letterbox. He was not directly communicating with the deceased at all, and the only rational explanation of the exchange with Young is that Hill was working on the basis that Young would liaise with the deceased about the delivery. Hill’s actions in not communicating with the deceased,[207] donning a form of disguise,[208] and asking Weston to actually exit the car to put the delivery in the letterbox, are all consistent with Hill appreciating that if he was seen to be involved in any way, the deceased would be suspicious about what he had been given. That is wholly consistent with the questions asked by the deceased in his various texts to Young, about where Hill was, and was the invitation to go to the motel a set up. Young’s exchanges with the deceased served to conceal Hill’s involvement. If there was a truly innocent connotation to be put on what was occurring, why did Hill not directly communicate with the deceased?
[207]Whose number he clearly knew because he had texted threats to him only a day or so before.
[208]Weston gave evidence that even though it was a warm night Hill had put on a hoodie and pulled it over his head when they left to make the delivery.
In a trial where the bulk of the lay witnesses seem to have been involved in the drug scene to one degree or other, some as drug users and others as drug dealers, it is difficult to see how the one line reference to Hill having been a drug dealer could possibly prejudice him. There was already unquestioned evidence from Weston to the effect that Hill supplied him with drugs, and from Thorgood to the effect that Hill was buying drugs from “Wog”.
However, there was other evidence to which objection was not taken, either at trial or on appeal, which would go to establish that Hill was a drug dealer. In the summary of text messages taken from the various phones in the possession of the participants, including Hill, there are a couple of entries which, on their face, record Hill offering drugs to others. On 9 October, at about 8.36 pm, Hill texted a person called Powell, stating “I can give u sum pure”.[346] Then at 9.08 pm Hill texted a person called Noy, saying “U want any pure”.[347] There can be little doubt what those texts are about. The jury in this particular trial would have had no difficulty understanding those references to be Hill offering drugs to others. Indeed, counsel for Hill referred to one of those texts in his address to the jury.[348] Consequently, I cannot see that the reference by one witness to Hill being a drug dealer could, in any way, have prejudiced Hill in his trial.
[346]AB 491.
[347]AB 493.
[348]Supplementary Record, AB 44.
For the reasons above ground three fails.
Hill’s Fourth Ground of Appeal – Consciousness of guilt
This ground contended that there was a miscarriage of justice in that the jury were directed, wrongly, that post-offence conduct by the appellant was capable of amounting to evidence of consciousness of guilt of murder.
The ground relates to the evidence of Weston concerning the events on Sunday 10 October, some hours after the death of the deceased. Some short context is necessary. Weston’s evidence included these features:
(a) Weston received a phone call from Robinson, asking whether Weston could pick somebody up and drop them out at the power house;
(b) Weston was not told who he was being asked to pick up but was directed to the motel;
(c) he drove to the motel, arriving late, “probably 11.30”;
(d) he saw a door to one of the rooms open and Hill came out; Hill opened the car door and asked if Weston had any syringes, saying that if Weston could get some syringes Hill would “shout [Weston] a shot”;
(e) Weston went to the community health building, purchased a pack of syringes, and then went back to the motel;
(f) Weston got out of the car, announced himself at the door (out of which Hill had originally come), then went in;
(g) the time was near midnight;
(h) he saw Hill and Young inside, and Hill proceeded to mix up a shot using white powder from a plastic bag, mixed with water; Hill then divided the mixture into three syringes;
(i) during this time Young was fiddling with her phone or playing on a phone;
(j) Hill gave a syringe to each of Weston, Young and himself and Weston injected the drugs into his arm; Weston could tell from the effect that they were amphetamines;
(k) both Young and Hill were half facing away from Weston and they appeared to inject the drugs themselves;
(l) at that point Hill asked if Weston could give him a lift out to the power house, at which point Weston went out to the car and left Hill “gathering the stuff in front of him, like, packing things up”;[349] Hill proceeded to follow him about 30 seconds later;
[349]AB 28.
(m) Hill got in the car and Weston proceeded to drive towards the power station;
(n) at some point Hill asked if it was all right if they stopped and “just dropped something off to somebody”;[350] Hill then gave directions to Weston as to which roads to turn into; Weston did not know where they were going;
[350]AB 28.
(o) Hill told Weston to pull up on the right hand side of the road, near a low set brick house on the corner; the house had a letterbox close to the gutter;
(p) Weston expected Hill to get out of the car, but Hill threw an envelope onto Weston’s lap and asked him to drop it in the letterbox; Weston did so;
(q) Weston thought that the envelope had something in it, but “I couldn’t feel anything distinguishing”;[351] it was light, and not bulky; he did not feel anything that would have suggested a syringe as opposed to a small bag of powder; he only held the envelope for a few seconds;
[351]AB 29.
(r) after putting the envelope in the letterbox, Weston proceeded towards the power house but pulled over when Robinson telephoned, saying that he was driving behind Weston;
(s) Weston pulled over; Robinson was in a silver Suzuki Swift, with Phillip; Hill got out of the car and got into Robinson’s car;
(t) Weston then went back to Shane Robinson’s house.
Weston next saw Hill on the following morning, at about daylight. Robinson, Phillip, Hill and Young turned up at Shane Robinson’s house. Weston described the events:
“And what happened? --- Ian Robinson, Naomi Phillip, Brad Hill and Kerryn Young have turned up about daylight and come up into the house. Brad Hill’s said we need to talk.
Who did he say that to? --- To me. He’s led me down to Shane Robinson’s bedroom. Once in the bedroom he’s said [“]our mate that we dropped that thing off to last night’s dead. This is the first one I’ve had anything to do with it and you need to shut your mouth[”].
Who – who did he say that to, [“]you need to shut your mouth? [”] --- To myself.
Where was Kerryn Young when this conversation ---?--- I believe she was in the lounge room.
All right. What did you do? --- I was – I was a bit stunned at what was said. It was – it was a bit of a shock.”[352]
[352]AB 30.
There was no objection to the evidence being led as to what Hill said to Weston the following morning.[353] That evidence was not challenged, nor was there any substantive challenge to Weston in respect of the matters recorded above, namely Weston’s account of the events from when he met Hill at the motel through to when Hill changed cars after the envelope was dropped off in the letterbox.
[353]It was accepted at trial that evidence was not admissible against Young.
In the prosecutor’s address to the jury the following was said about Weston’s evidence of the conversation with Hill the following morning:
“Why would – ask yourself this – and this is unchallenged – that Mr Hill threatened him to keep his mouth shut, I don’t know, 4 or 5 o’clock the following morning.
What are we asked to believe? That Bradley Hill, overcome with sudden generosity to the deceased, delivered a little packet of methylamphetamine and then he had to go and threaten Leigh Weston to keep his mouth shut about that. Or did he really have to threaten Leigh Weston to keep his mouth shut about delivering a syringe which Bradley Hill knew contained heroin that he got from – I wonder who he could’ve got it from? We actually had – if she can be deemed an expert – probably one of the most authoritative figures on heroin abuse in the state, Leigh Vanbreeman. She had been a heroin addict for 27 years. She had heroin with her. She had given or sold or swapped some to Ian Robinson and Naomi Phillips. So Brad Hill has got the means. He’s got the stated intention. He drops the heroin off. [The deceased] dies and what’s he got in his system? Morphine. Stated intention. Motive. Desire. Opportunity. And that’s one mess sorted.
That’s why he has to threaten Leigh Weston to keep his mouth shut. This is the circles that they were all in at the time. I mean, Leigh Weston told you that he’s in prison and he’s got parole coming up but his evidence, essentially, wasn’t particularly challenged. So from that you can be satisfied comfortably that Brad Hill delivered heroin or morphine in a syringe, and the same type of syringe with an orange cap was found in the room containing morphine, the same type of syringe that Leigh Weston went and got from Gladstone Hospital.”[354]
[354]Supplementary Record, AB 5-6.
Counsel for Hill dealt with the post-death conduct fairly shortly. Having referred to the fact that it was a circumstantial case that the jury was hearing, and the inference of guilt must be the only rational inference, this was said:
“So any post-death conduct of Mr Hill panicking, being shocked, need not relate to the delivery of heroin with an intention to kill. Any death of any drug user must cause panic in any person who thought they may have supplied the drug. Well, a man is dead and any death is a tragedy, but let’s not romanticise the life of [the deceased]. He chose to become an intravenous drug user.”[355]
[355]Supplementary Record, AB 38.
The learned trial judge dealt with the post-killing conduct in his summing up, in these terms:
“Post killing conduct. The prosecution asks that you draw an inference from the defendant’s conduct on the next morning. There are two pieces of evidence relevant here: the prosecution point to the attendance on Weston at his home at daybreak on the morning after [the deceased’s] death and he had been told to stay quiet. Both defendants go there, but Young remains in the lounge while Hill takes Weston to a bedroom, and, as I have said on Weston’s account tells her to keep quiet about the drop-off.[356]
Now, on its own this evidence does not take the case very far at all. At the most it indicates a concern by Hill about his involvement in the death. Bear in mind that before you could use this conduct as indicative of guilt you would first have to find that the defendants acted in this way because they knew they were guilty of the offence charged, and not for any other reason. Recall Young is in the lounge room, not the bedroom where the conversation takes place.
You must remember in relation to this sort of evidence that people do not always act rationally and that conduct of this sort can often be explained in other ways. For example as a result of panic or fear or other reasons having nothing to do with the offence charged. You must have regard to what has been said to you by the defendants’ counsel as to the other explanations for his behaviour. Effectively that it is as consistent with panic at an innocent involvement in a death following the delivery of amphetamines as any other hypotheses. All of these matters must be considered by you in deciding whether you can safely draw any inference from the fact of the attendance on Weston.”[357]
[356]The reference to “her” clearly meant “him”, as there was no suggestion that Young was present during the conversation between Hill and Weston. Further, the conversation took place at Shane Robinson’s home, not that of Weston. Neither error is significant.
[357]AB 450.
The contention on this ground is that in the particular circumstances of the case, the conduct of Hill on the morning after the death of the deceased was not capable of amounting to consciousness of guilt of murder. Further, that on the issue of an intention to kill or cause grievous bodily harm, the conduct was equivocal and intractably neutral.
Hill’s Fourth Ground of Appeal – Discussion
At the trial there was no challenge by Hill to the fact that something was delivered to the deceased’s letterbox, by Weston at the request of Hill, some time after midnight. There was, however, considerable contest on the part of Hill as to whether the envelope contained a syringe with heroin in it, or something else. Considerable effort was taken in cross-examining a variety of witnesses to establish that the deceased had a number of persons who had reason to cause him harm, that there was a second delivery of drugs to the deceased’s house that night, and that if Hill delivered anything it was more likely some amphetamines, rather than heroin. Further, Hill’s defence contended that one scenario was that the deceased was seeking a shot, asked for the drugs to be delivered, and then simply received what he intended, namely amphetamines.[358] As it was put to the jury, the text from Hill to Young, namely “is this going in the letterbox”, was “indicative of a simple drop off of a drug that someone obviously keen for a shot. He was chasing it.”[359]
[358]Supplementary Record, AB 45 and 55.
[359]Supplementary Record, AB 55.
Thus, Hill’s case put in issue whether he had unlawfully killed the deceased, challenging the factual events (particularly as to the nature of the delivery of drugs), as well as whether the conduct amounted to criminal offences. In those circumstances the respondent contends that the evidence of the conversation between Hill and Weston the following morning was admissible to prove Hill’s deliberate involvement in the unlawful killing of the deceased, and that its relevance was not limited to demonstrating Hill’s intention. I accept that submission. Given the challenge to establish that there had been a second delivery of drugs by unknown persons and the (relatively innocuous) nature of the drugs likely to have been delivered by Hill,[360] the evidence of Weston as to Hill’s conduct the following morning was relevant on more than one front. What Hill told Weston had several elements: first, that the deceased was, in fact, the person for whom the delivery to the letterbox was intended; secondly, that he knew that the deceased had died; thirdly, that Hill had something to do with it, signified by the phrase “this is the first one I’ve had anything to do with it”; and fourthly, that Weston needed to keep quiet about it. To that one needs to add the fact, conceded on appeal, that Young knew that the drug delivered was a pre-mixed shot of heroin.[361] Once those elements are understood, it becomes clear that Weston’s evidence as to what was said goes further than mere guilt, and establishes Hill’s involvement in the unlawful killing of the deceased. It connects the delivery of drugs to the deceased with the deceased’s death and that Hill had something to do with it.
[360]In the sense that Hill, Young and the deceased were all users of amphetamines, so that amphetamines would have been, from their perspective, an innocuous delivery.
[361]See paragraph [43]. If she knew that, it is, in the circumstances, inconceivable that Hill did not know it too.
The learned trial judge referred to the use of Hill’s conduct in terms of whether it might be “indicative of guilt”. When it is said that conduct might demonstrate a “consciousness of guilt”, the reference is normally to the way that phrase was used in Woon v The Queen.[362] In that case Kitto and Taylor JJ referred to the High Court decision in R v Grills[363] which dealt with the admissibility, as a matter of law, in certain circumstances of statements made in the presence and hearing of another. In Grills, Griffiths CJ said:[364]
“The fact that such a statement has been read is often admissible in evidence, and the reason for its admissibility is well known. The statement itself is not evidence of the facts alleged in it. The evidentiary fact consists in the conduct of the accused when it is read to him, whether by way of spoken words, which may amount to an admission or denial in whole or part, or by silence. The circumstances of the case may show that such conduct is evidentiary of some fact relevant to the question of his guilt, e.g., his untrue denial of some relevant fact proved aliunde. If it is not evidentiary of any such fact the evidence is irrelevant, and inadmissible on that ground.”
[362]Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23.
[363]R v Grills (1910) 11 CLR 400; [1910] HCA 68.
[364]Grills at 408-409.
As is clear from that passage, the evidence from which a consciousness of guilt might be drawn, is not considered in isolation. It is to be considered in the circumstances of the case. In other words, post-offence conduct must be judged in the light of other circumstances in the case and, where the case depends upon circumstantial evidence, in the totality of that circumstantial evidence.[365] Thus, the evidence of Hill’s conduct must be seen in the light of other evidence that the jury might accept. That evidence includes:
[365]R v Williams [1987] 2 Qd R 777, at 780 and 786; R v Ciantar (2006) 16 VR 26, at [40], [67]-[72]; Flora v The Queen [2013] VSCA 192, at [79]-[82].
(a) the express threats made by Hill to kill or harm the deceased, the evidence of Phillip suggesting that Hill had access to heroin and discussed using it against the deceased;[366]
[366]Though this evidence was contradicted by other witnesses, it was a matter for the jury as to what they believed.
(b) the evidence that the deceased was concerned to know the whereabouts of Hill earlier that evening and whether Young’s invitation to go to the motel room was a set up;
(c) the sequence of text messages from Young indicating that it was she who was going to mix the shot and deliver it;[367]
[367]In other words, not Hill.
(d) the fact that even though Young and the deceased knew Hill well, Hill was not mentioned in the texts as being the person who would deliver the shot, the fact that Young and Hill knew that it was heroin being delivered;
(e) the fact that the deceased’s text indicated that he had no syringe at his home and the only syringe that was found after the event was one which contained morphine.
Seen in the light of that evidence, it is in my view impossible to say that Hill’s conduct the next morning was equivocal or intractably neutral.
In R v Taylor[368] the Victorian Court of Appeal referred to “intractable neutrality” in commenting upon distress evidence. Winneke P said:
“The applicant submits that the evidence which was left to the jury was “intractably neutral” in the sense that it could not be regarded as more consistent with guilt than with innocence. In those circumstances, it was submitted, it was incapable of amounting to supportive evidence. For my own part, I do not regard the evidence to be “intractably neutral” whatever that may mean. If it means evidence can never be regarded by the jury as confirming the complainant’s evidence, then I do not believe this evidence falls into that category. The mere fact that it might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration. There can be no doubt that circumstantial facts can combine to provide evidence supportive of that of the person required to be corroborated, in as much as they amount to circumstances leading to an inference that it was probable that advantage would be taken of an opportunity presented, or to show that the misconduct alleged was probable. For example, evidence of distress, or injury to, or torn clothing of a girl complaining of having been raped is often left to juries as evidence capable of providing corroboration even though it is equivocal per se. That, of course, does not mean that the evidence is not capable of being corroborative; all it means is that it is a question for the jury to determine whether it is corroborative or not.”[369]
[368]R v Taylor [2004] VSCA 98.
[369]Taylor at [13] (internal references omitted).
In a later case, R v Ferguson[370] the Victorian Court of Appeal said:
“Some evidence is characterised as ‘intractably neutral’ and therefore incapable in law of amounting to corroboration. However, evidence is not ‘intractably neutral’ merely because it can be regarded as supporting competing hypotheses. It is a matter for the jury, properly instructed, to determine whether the hypothesis for which the Crown contends should be accepted. And merely because the accused suggests that some particular fact is not in issue does not render it ‘neutral’ in the sense described.”[371]
[370]R v Ferguson (2009) 24 VR 531.
[371]Ferguson at [110] (internal references omitted).
In R v Martindale[372] this Court considered a question concerning the admissibility of evidence from a complainant’s mother of an appellant’s request to give a false alibi by lying as to whether the appellant was asleep at the time of the offences. The trial judge ruled that the attempt to manufacture a false alibi was relevant and admissible, a ruling upheld by the Court of Appeal. In that context the following was said:
“As with other forms of circumstantial evidence which are not indispensable steps in the proof of guilt, it is not an essential condition of the admissibility of such evidence that it should be consistent only with the conclusion that the accused is guilty of the offence charged. As a result, there is a danger of unfair prejudice to the accused in such evidence because there may be reasons why an accused might seek to manufacture proof of his innocence other than a consciousness of his guilt of the offence charged. Because of the risk that the prejudicial value of the evidence may exceed the probative value of the evidence, directions to the jury are required to ensure that they weigh the probative value of the accused’s attempt to manufacture evidence of innocence in the light of possible explanations consistent with innocence of the offence charged. But, ultimately, the value of the evidence in any particular case should usually be a matter for the jury.”[373]
[372]R v Martindale [2009] QCA 24.
[373]Martindale at [48] (internal citations omitted).
In my opinion the evidence from Weston as to Hill’s conduct the morning after was, when looked at in the light of other evidence in the case, capable of demonstrating a consciousness of guilt. Whether that was so was a matter for the jury to determine. No complaint is made as to the direction given in respect of the jury’s use of that evidence.
For the reasons above ground four fails.
Conclusion on both appeals
It will be apparent from the reasons above that there was a substantial body of evidence from which the jury, properly instructed, could conclude that Hill and Young were guilty of the offences charged. It is true that there were various discrepancies and inadequacies in the evidence, different recollections of events, different meanings that might be attributed to texts, and reasons to doubt some of the testimony because of the drug related effects on witnesses, or the passage of time. However, the jury, which is the body entrusted with the primary responsibility of determining guilt or innocence,[374] had the considerable advantage of seeing and hearing all the witnesses, and that placed them in the best position to assess where the truth lay.
[374]M at 493; Chamberlain at 621; SKA at [12]-[13]
That is an advantage which this Court did not enjoy. This Court must assess all the evidence but without disregarding or discounting that advantage, and on the basis that it acts on the view of the evidence which, in its opinion, the jury were entitled to take.[375]
[375]Hayes at 604-605; Chamberlain at 621.
In SKA the High Court affirmed that the test for determining appeals such as these is that laid down in M, requiring the Court to make “an independent assessment of the evidence, both as to its sufficiency and quality”:[376]
“In reaching such a conclusion the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”
[376]SKA at [14] (quoting from M).
In my opinion the various criticisms that have been levelled at the sufficiency and quality of the evidence do not reach the point that the jury’s particular advantage is overcome. I do not consider that the verdicts are unreasonable or unsupported; it was open to the jury to be satisfied beyond reasonable doubt that Hill and Young were guilty.
I would order that:
1. Leave be granted to Hill to adduce the further evidence.
2. Hill’s appeal be dismissed.
3. Young’s appeal be dismissed.
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