R v Knight
[2010] QCA 372
•23 December 2010
SUPREME COURT OF QUEENSLAND
CITATION:
R v Knight & Ors [2010] QCA 372
PARTIES:
R
v
KNIGHT, Mark Dempsey
WILLIAMS, Wesley Robert
ROBERTSON, Wayne Thomas
(appellant)FILE NO/S:
CA No 199 of 2009
CA No 200 of 2009
CA No 201 of 2009
SC No 49 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Rockhampton
DELIVERED ON:
23 December 2010
DELIVERED AT:
Brisbane
HEARING DATE:
14 and 15 July 2010
JUDGES:
Margaret McMurdo P, Muir JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
In each appeal:
1. The appeal against conviction is allowed;
2. The verdict of guilty of murder is set aside;
3. A retrial is ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – appellants were jointly tried and convicted of the murder of Robert James Buckley – deceased was found hanging dead in a prison shower cubicle in June 1999 – death originally considered suicide but in 2006 appellants were charged with murder – appellants were committed for trial to Supreme Court in July 2009 – many witnesses considered deceased was coping with prison life – many witnesses gave evidence of animosity between deceased and appellant Williams – many witnesses gave evidence of appellants' assault on deceased – prosecution prisoner witnesses gave inconsistent evidence – pathologists' evidence could not exclude suicide – whether, on whole of the evidence, it was open to jury to be satisfied beyond reasonable doubt that each appellant was guilty – whether verdict was unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION _ CONSIDERATION OF SUMMING UP AS A WHOLE – trial was held over many weeks – evidence not optimally presented by too long a delay between alleged offending and trial – trial judge presented own solutions to issues raised by the evidence – trial judge correctly directed that facts were matters for jury to decide and they must not feel bound by judge's comments – whether judge overwhelmed jury with a certain view of the evidence – whether summing up amounted to a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTION AND PROSECUTOR – prosecution case was that appellants liable under s 7(1) and s 302(1)(a) Criminal Code 1899 (Qld) through strangling deceased with cable or towel then hanging the deceased from bars in shower – prosecution abandoned contention that cable used – judge articulated that prosecution case was appellants caused death by compression of neck causing asphyxiation by either strangling or hanging – whether change to case meant appellants were placed at tactical disadvantage causing unfairness and warranting appellate intervention
CRIMINAL LAW – EVIDENCE – HEARSAY – PARTICULAR MATTERS – MAKER OF STATEMENT NOT AVAILABLE – prisoners and prison officers gave evidence about deceased's statements that he was afraid of appellant Williams and did not want to move to appellants' block – trial judge ruled deceased's statements were unlikely to be fabrication and ruled them admissible under s 93B Evidence Act 1977 (Qld) – whether relationship evidence admissible – whether statements made in circumstances where likely to be a fabrication – whether evidence is admissible under s 93B(1) and (2)(a)
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – prison officer gave evidence of the temperature of the deceased’s body and the way the deceased’s limbs felt at 5.30 pm – trial judge invited jury to determine a time of death of between 11.30 am 1.30 pm based on officer’s evidence – trial judge suggested to jury that officer’s evidence could be used to corroborate evidence of other witnesses – whether trial judge’s comments regarding officer’s evidence were inaccurate and resulted in a miscarriage of justiceCRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – prison officer’s log book entry indicated deceased was alive at 5.05 pm – trial judge made comments to the jury regarding evidence of officer’s incompetent record-keeping – whether trial judge wrongly strengthened the prosecution case by misstating evidence regarding officer’s record-keeping – whether trial judge should have given a Jones v Dunkel type direction due to the prosecution’s failure to call officer
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – appellants submitted that trial judge erred in directing the jury that the suicide theory was not supported by evidence that the deceased had grease and blood on his hands but neither substance was found on the towel from which he was hanging – whether trial judge so erred
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – pathologist gave evidence about the state of the deceased’s body on the day he died – appellants submitted that the trial judge’s comments suggested the jury should take an adverse view of pathologist’s evidence – whether trial judge’s comments resulted in unfairness to the appellants
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – trial judge, in summing up, repeated a comment made by the prosecutor regarding the truthfulness of witnesses – trial judge made comments regarding the evidence of a scientific officer – whether trial judge’s comments offended the principles in Palmer v The Queen and reversed the onus of proof
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – trial judge, in summing up, identified which witnesses were indigenous – many witnesses, indigenous and non-indigenous, were confused whilst giving evidence – both prosecution and defence placed considerable weight on evidence given by indigenous witnesses – judge gave direction that indigenous witnesses may agree with what was put to them and jury needed to decide whether agreement made by witnesses was a deliberate and thoughtful acceptance of proposition put to them – whether judge's directions about indigenous witnesses diminished effect of cross-examination of indigenous witnesses and caused unfairness to appellants – whether judge erred in giving direction
Criminal Code 1899 (Qld), s 632(3), s 668E(1)
Evidence Act 1977 (Qld), s 93BB v The Queen (1992) 175 CLR 599; [1992] HCA 68, cited
R v Soloman (1980) 1 A Crim R 247; [1980] 1 NSWLR 321, cited
Broadhurst v The Queen [1964] AC 441, cited
Dyers v The Queen (2002) 210 CLR 285; [2005] HCA 45, cited
Green v The Queen (1971) 126 CLR 28; [1971] HCA 55, cited
Hoger v Ellas (1962) 80 WN (NSW) 869, cited
R v Cohen and Bateman (1909) 2 Cr App R 197, cited
R v Bentley [1998] EWCA Crim 516, cited
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
Mears v R (1993) 97 Cr App R 239, cited
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited
R v Condren (1987) 28 A Crim R 261, cited
R v Durham (2000) 100 A Crim R 93; [2000] QCA 88, cited
R v Franco (2003) 139 A Crim R 228; [2003] SASC 140, cited
R v Lester (2008) A Crim R 468; [2008] QCA 354, cited
R v Fullgrabe (2002) 133 A Crim R 453; [2002] QCA 366, cited
R v Hulse (1971) 1 SASR 327, cited
R v Riscuta [2003] NSWCCA 6, cited
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
Seymore v Australian Broadcasting Corporation (1977) 19 NSWLR 219, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300, cited
Stokes v R (1960) 105 CLR 279; [1960] HCA 95, cited
The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38, cited
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, citedCOUNSEL:
S J Keim SC with G McGuire for appellant Knight
P J Davis SC with D R Lynch for appellant Williams
B W Farr SC with J Fraser for appellant Robertson
M J Copley with R Pointing the respondentSOLICITORS:
Legal Aid Queensland for the appellants
Director of Public Prosecutions (Queensland) for the respondent
REASONS OF MARGARET McMURDO P …………………………………………..7
The particulars of the murder charge
The prosecution case
(a) Admissions of fact
(b) Evidence of prison officers relevant to the death
(i) Prison Officer Ross Hodda
(ii) Prison worker Paul Jorgensoen
(c) Expert evidence
(i) Pathologist Dr Sinton
(ii) Pathologist Dr Ansford
(iii) Scientific Officer Bradley Hall
(d) The evidence concerning whether or not the deceased suicided
(i) The deceased's mother
(ii) The deceased's grandfather
(iii) The father of the deceased's fiancée
(iv) The deceased's fiancée
(v) Police Officer Brian Muirson
(vi) Solicitor Michael Pearson
(vii) Prison General Manager Kerrith McDermott
(viii) Police Officer Gregory Jones
(ix) Police Officer James Sheehan
(x) Corrective Service Officer Daniel Frewen-Lord
(e) The evidence of 8 Block prison and prison officer witnesses
(i) Deceased's co-offender Kevin Ryan
(ii) Prisoner Nathan Bradden
(iii) Prisoner Clifford Rees
(iv) Prisoner Jason Donovan
(v) Prisoner Mark McIlwain
(vi) Prisoner James Doyle
(vii) Prisoner Henry Robinson
(viii) Prisoner Alan Mason
(ix) Prisoner Marshall Hill
(x) Prison Officer Phyllis Weeks
(xi) Prison Officer Sharon Williams
(f) The evidence of DU prisoner and prison officer witness
(i) Prisoner Craig Findlay
(ii) Prisoner Bobby Devon
(iii) Prisoner Scott Friedrichs
(iv) Prisoner Brodie McLuckie
(v) Prisoner Officer Ian Davis
(g) The evidence of 10 Block prisoner witnesses
(i) Prisoner Edward Malcolm
(ii) Prisoner Christopher Nelson
(iii) Prisoner Isaac Barlow
(iv) Prisoner Patrick Weribone
(v) Prisoner Geoffrey Campbell
(vi) Prisoner Lionel Malcolm
(vii) Prisoner Darren Bailey
(viii) Prisoner Bradley Booth
(ix) Prisoner Jason Roberts
(x) Prisoner Alan Shipp
(xi) Prisoner Elwyn Tilberoo
(h) Exhibit 62
No case submission
Defence case
The judge's directions to the jury
The judge's redirections to the jury
Was the summing-up unfair?
(a) The judge's directions concerning prison officer Hodda's evidence
(b) The judge's directions concerning prison officer Bauer
(c) The judge's directions as to the evidence of Indigenous witnesses
(d) Other impugned aspects of the judge's summing-up
(e) Conclusion as to whether the summing-up was unfair
Did the prosecution case change during the trial?
Are the jury verdicts unreasonable?
The evidence admitted under s 93B Evidence Act 1977 (Qld)
Summary
ORDERS:
REASONS OF MUIR JA……………………………………….. …………………… ..89
REASONS OF DOUGLAS J…………………………………………………………..104
MARGARET McMURDO P: At about 5.30 pm on 16 June 1999, prison officers found inmate, Robert James Buckley, dead in a shower cubicle of a communal shower area of 10 Block of the old Rockhampton prison. He was hanging from a twisted yellow towel which was around his throat and tied to bars in front of a louvre window in the cubicle. He was 23 years old and on remand for an offence of burglary. Any suspicious death in custody is a tragedy for the family and friends of the deceased. It is also a concern to all citizens as it occurred whilst the deceased was under the control of the State. The death was originally considered a suicide, but in 2006 the appellants, Mark Dempsey Knight, Wesley Robert Williams and Wayne Thomas Robertson, were each charged with murder. They were committed for trial to the Rockhampton Supreme Court in July 2008.
Three days of pre-trial hearing commenced on 27 May 2009. The judge ruled admissible the evidence of prison witnesses about the deceased's statements to them that the appellant Williams had assaulted him and his fear of moving to 10 Block.[1] The appellants pleaded not guilty on 10 June 2009 when their trial commenced before a jury. On 28 July 2009, after almost seven weeks, they were all convicted of murder. They have each appealed against their sentence, initially raising 29 identical grounds.
[1]R v Mark Dempsey Knight & Ors (No 2), unreported, Supreme Court of Queensland, 27 May 2009, McMeekin J.
At the hearing of this appeal, they each abandoned 14 of these and consolidated their remaining grounds of appeal into the following 11 contentions. The first is that the judge's summing-up to the jury was unbalanced; it made positive references to witnesses favourable to the prosecution, especially the witness, Geoffrey Campbell, and diminished witnesses favourable to the defence; it demolished defence counsel's arguments and advocated a position favourable to the prosecution. The second is that the judge's directions to the jury in relation to the evidence of the witness, Ross Hodda, were flawed. The third is that the judge erred in his directions to the jury about the evidence of prison officer Albi Bauer and the judge erred in the directions to the jury as to the inferences that may be drawn from evidence that the deceased was seen neither after lunch nor to leave the shower block. The fourth is that the judge erred in directing the jury to the effect that suicide was not supported by the evidence that the deceased had grease and blood on his hands but no grease or blood was found on the towel from which he was hanging. The fifth is that the judge erred in various ways in directing the jury as to how to assess the evidence of Dr Sinton. The sixth is that the judge erred in directing the jury as to how to assess the evidence of Indigenous witnesses. The seventh is that the judge erred in not directing the jury to disregard the submission by the prosecutor inviting the jury to consider why the witnesses who were prisoners in 10 Block would come to court to give evidence if they were lying. The eighth concerns a direction as to police scientific officer Hall's evidence. The ninth is that the prosecution case as particularised changed during the trial. The tenth is that evidence was wrongly admitted under s 93B Evidence Act 1977 (Qld). Finally, they each contend that the guilty verdict was not reasonably open on the evidence and should be set aside under s 668E(1) Criminal Code 1899 (Qld).
There is merit in some, but by no means all, of the appellants' contentions. I have concluded that the appeals must be allowed, the verdicts of guilty of murder set aside, and retrials ordered. It is regrettable that this means that a trial of almost seven weeks involving many witnesses before a judge and jury will have come to nought. But it is far more important to the criminal justice system that, if the appellants are to be convicted of murder or manslaughter, it is only after a fair trial according to law by a properly instructed jury. These are my reasons.
The particulars of the murder charge
The prosecution provided the following particulars of the three murder charges:
"The Crown case is to be based upon section 302(1)(a) of the Criminal Code. That is, that all of the [appellants] together intended to kill the deceased. In the alternative, at the very least they intended to cause some grievous bodily harm to him, although it seems clear from the material that [the deceased's] death was actually intended.
They are each liable for the death pursuant to all limbs of section 7(1) of the Code.
In essence, the deceased was attacked in the shower block by all of the [appellants] and strangled by the use of coaxial cable and/or a towel with the towel afterwards being used to hang the body from the set of bars in order to disguise the murder as a suicide."
The prosecution case
The prosecution case as opened was that all three appellants attacked the deceased in a shower area of 10 Block, strangled him by use of some material (either the modified towel, a cord, rope or wire) and then suspended him from the bars of the louvre window with the modified towel to disguise the murder as a suicide. They each took part in the killing and intended to kill or do grievous bodily harm to the deceased at that time.[2]
[2]See prosecution opening, transcript 2-6, 2-31.
In order to deal with the appellants' eleven contentions, particularly the last, it is necessary to first set out the relevant evidence given during this lengthy trial. As one ground of appeal concerns the judge's directions on Indigenous witnesses, it is necessary to specify which witnesses are Indigenous. Where unspecified, it can be accepted the witness was apparently not Indigenous.
(a)Admissions of fact
It is sensible to begin with the following admissions of fact made at trial.
"1.(i) The body of the deceased Robert James Buckley was discovered by correctional officers hanging in a shower cubicle at about 5.30 pm on 16 June 1999.
(ii) At that time the body was found with the face against the wall, the knees bent and the feet touching the ground behind the body.
(iii) What appeared to be grease was located below the right thumb and on the left palm of the deceased.
(iv) No grease like substance was located on the lengths of towel retrieved from the shower block.
2. Blood of the deceased was located within the shower block at the following locations:
(a) in two separate smears below the left hand mirror;
(b)on the bottom of the partition and lower door hinge separating the end shower cubicle from the next cubicle which was approximately 24.5 centimetres from floor level;
(c) on two walls inside the shower cubicle where the deceased was located;
(d) no blood from anyone other than the deceased was located in the shower block or anywhere in the vicinity of the window area.
3. No blood or DNA from any of the accused was detected upon any item found within the shower block. Certain items located within the shower block were scientifically tested, those items being:
(a) a soap packet;
(b) 3 bags of soap;
(c) a green scourer;
(d) the lengths of towel removed from the window bar and around the deceased’s neck.
4. No DNA from any of the accused was detected in the fingernail clippings taken from the deceased.
5. No DNA from any of the accused was detected upon the deceased’s clothing or upon the deceased’s person.
6. No blood or DNA of the deceased was detected upon:
(a) the clothing of any of the accused;
(b) the towel used to suspend the body of the deceased other than in the area of the portion of the towel surrounding the neck of the deceased.
7. (i) No fingerprints of any of the accused were located in the shower block where the deceased’s body was found.
(ii) The right palm print of Geoffrey John Campbell was located on the wall above the bench seat adjacent to the shower cubicle where the deceased’s body was found.
8. (i) Upon discovery of the deceased’s body, the remainder of the inmates in 10 Block were locked in their cells. Inmate Cant (Buckley’s cellmate) was later placed into a cell with inmate McKinnon.
(ii) Subsequently, all cells in 10 Block were searched and all inmates of I0 Block were inspected for signs of injury.
(iii) No weapons or items (including pieces of coaxial cable/cord and pieces of towelling) were located which were connected with the death of the deceased.
(iv) No injuries were detected upon any of the accused including upon their hands.
9. Inmate McKinnon provided a statement to police on 28 February 2004 which included the following extract:
33. I spent the next few hours in my cell smoking as many cigarettes as I could. There were people walking around everywhere. I’m not sure when but the screws locked us all down for about a day. 'Cowboy' was put in my cell.
34. Cowboy[3] was laying on the top bunk and saw his sock. He started panicking and showed me some blood on one of his socks that he still had on. He showed it to me and it was only a speck on the end of his toe. He said, '1 have to get rid of this before 1 am interviewed.' He tried to wash it out but it didn’t come out. 1 saw the ashtray and said rub ash on it. He did that and it came out. He didn’t say anything about BUCKLEY. 1 don’t know if it was his own blood or not.
10. (i) Inmate Cant (nickname 'Cowboy') was interviewed by police on 17 June 1999. At that time Cant told police he had had a 'play wrestle' with the deceased whilst the two were cellmates in 10 Block.
(ii) Inmate Cant provided a statement to police on 6 July 2009 which included the following extract:
[3]It is common ground that "Cowboy" is Cant.
12. I can explain why I had this blood on my sock. I remember that at the time I was using amphetamines (speed) and I used to inject it into my arm using a '1 ml fit' which is smaller grade of needle (finer syringe) which was obtained from the surgery. I would have used this syringe to inject my arm. After injecting my arm there is always a little bit of spot of blood that comes out of the injected part of the arm. I used to use a sock as a tourniquet and then afterwards 1would also use it to wipe away any blood that had come out from taking out needle. This is exactly the same as when you get a needle for say a blood test and after the needle is removed a piece of cotton wool is applied to the arm to stop the bleeding.
13. So I was scared that my sock would be inspected and seen by correctional officers or police and questions would be asked about the blood on my sock. I was scared that I would have to tell that I was using drugs and then I would have to answer questions about where I got the drugs from.
14. I remember that I did not use any drugs while I was in 10 Block and the last time I had injected speed would have been when I was in 8 Block.
15. I don’t recall trying to wash it out or rubbing it out with ash but that is possible. I think I may have burned it off with a match. But whichever way I did it I ended up removing the speck of blood from the sock.
11. On 16 June 1999, Tennyson Bloomfield[4] was an inmate in 9 Block at Rockhampton Correctional Centre. Bloomfield (now deceased) was the nephew of 10 Block inmate Lionel Malcolm. Inmate Bloomfield provided police with a statement on 23 March 2004 which included the following extract:
[4]Tennyson Bloomfield is an Indigenous man.
18. On the day the young fella was hung, it was an ordinary day for me. I was housed in Slot 9 with Hedley TWADDLE. Slot 9 is on the Block 8 side of the Block 9 yard. Slot 9 is a double up cell. I remember that I had a shower as usual, and then had breakfast. After breakfast I did a workout in the yard near the front of my cell. There was a head count before lunch, and then we had lunc. After lunch I played touch footy on the oval. I played in a combine Block 9 and Block 10 team. We played the Block 8/7 team.
19. I remember we played with about 14 people on each side. I remember Lionel MALCOLM, Chris NELSON, John MURRAY, Elwyn TILBEROO, Ivan MUNNS, Hedley TWADDLE, Robin QUEARY, Kelly RAYMOND, Kevin HENRY, William MASON, Issac BARLOW, Willis McINNALLY and I were on the Block 10/9 team.
20. I remember after touch I went back to Block 9 and had a shower in my normal shower block. After my shower I went back to my cell and lay around for a bit.
21. After a while I went to the showers on the Block 10 side of Block 9 and yelled out for Lionel MALCOLM. I was standing on the bench in the shower block, and yelling through the window toward Block 10. I was standing at the shower cubicle end of the bench. The shower block in Block 10 that I was looking at was painted white besser brick and the bars in the windows were painted apple green. There is no glass in these windows.
22. After about 5 mins, Lionel came to the window in the 10 Block showers and asked what I wanted. Lionel was in the shower block closest to Block 9. He appeared to be standing on the bench in that shower at the basin end.
23. I asked Lionel for some smokes and a drink. He said he’d send it up.
24. I remember few minutes later one of the screws dropped off some tailor made smokes, some tobacco and a can of Coke for me.
12. The Rockhampton Correctional Centre prisoner telephone system records indicate that telephone calls using prisoner identification numbers were made from the 10 Block telephone on 16 June 1999 at the following times:
ISAAC BARLOW:
(a) 11:07 hours to David Powder for 5.57 minutes;
(b) 11:54 hours to David Powder for 5.59 minutes;
(c) 12:59 hours to Veronica Barlow for 2.10 minutes;
(d) 16:21 hours to David Powder for 5.59 minutes.
BRADLEY BOOTH:
(a) 12:41 hours to Sharron Booth for 5.52 minutes;
(b) 16:35 hours to Sharron Booth for 5.50 minutes.
JASON ROBERTS:
(a)15:03 hours to Kailang Coleman for 0.08 minutes;
(b) 15:40 hours to Charlie Coleman for 2.48 minutes;
(c) 15:59 hours to Charlie Coleman for 3.01 minutes;
(d) 16:03 hours to Charlie Coleman for 5.37 minutes.
ELWYN TILBEROO:
(a) 13:02 hours to David Tilberoo for 3.51 minutes;
(b) 17:29 hours to David Tilberoo for 2.52 minutes.
WESLEY WILLIAMS:
(a) 10:50 hours to Trish Bond for 5.54 minutes;
(b) 12:11 hours to Trish Bond for 5.58 minutes.
MARK KNIGHT:
(a) 13:55 hours to Dempsey Knight for 0.46 minutes.
13. The 8 Block movements log records that inmate McIlwain was moved from 8 Block to the Low/Open side of the Rockhampton Correctional Centre on 5 May 1999. The log also records that inmate McIlwain returned to 8 Block on 7 June 1999. The log does not record inmate McIlwain as being present in 8 Block between 5 May 1999 and 7 June 1999.
14. Basic 10 Block dimensions are as follows:
(a) distance from front fence of block to front wall of mess room - 32.9 metres;
(b) distance from front of cell on one side of block to front of cell on opposite side of block - 19.8 metres;
(c) distance diagonally from front gate of 10 Block to opposite side shower entrance - 39.4 metres;
(d) height above floor of window bar in shower block upon which towel was tied - 2.2 metres.
15. The towel/rope by which the deceased was found suspended was constructed from half of a standard size prison issue towel, which had been cut/torn into six pieces and platted together. The total length of the towel/rope recovered measured 1.55 metres."
(b)Evidence of prison officers relevant to the death
(i)Prison Officer Ross Hodda
Ross Hodda was a prison officer at the old Rockhampton prison in June 1999. At 5.30 pm he received a radio call requesting assistance at 10 Block and went with another prison officer, Clint Swadling, to a shower block there. The entrance was guarded by prison officers. He entered the 10 Block shower area and saw supervising prison officer Anderson struggling with a person hanging by a towel around his neck from the bars to window louvres in the last shower cubicle. Anderson asked Hodda and Swadling to assist. Hodda immediately took the weight of the hanging person and called for a knife to cut him down. After a time, he was handed a knife and he cut the towel. Hodda gave a demonstration of the position of the hanging body: the deceased's feet were underneath him; his hands were out to his side, quite bent towards the body in an upwards position and the arms were out from the body. He and Swadling carried the body out of the cubicle and laid it on to the communal area in front. Hodda did not think the body touched the floor, walls or door of the cubicle. He noticed blood around the mouth which seemed dry and old. No-one else was allowed into the area until the police arrived. The body seemed "very cold". There was no movement in the body as he carried it out of the cubicle to the communal floor.
In cross-examination, he agreed he gave a statement to police the following day (17 June 1999). The body was hanging as if kneeling with the knees bent, almost but not quite touching the ground; the feet were behind the body with the toes pointed down touching the ground. When he and Swadling were cutting down the body there was no room for anyone else in the cubicle. The area outside the shower block was muddy. The communal area of the shower block was damp. He could not recall whether the floor inside the shower cubicle was wet or dry. Prison officer Albi Bauer was in 10 Block that evening, and was still working for Correctional Services in Rockhampton at the time of the trial.
(ii)Prison worker Paul Jorgensoen
Paul Jorgensoen was also working at the prison on 16 June 1999. He was a qualified boilermaker. He maintained the prison buildings, including 10 Block. The shower areas in 10 Block had two rows of louvres with bars in front of them. He never applied any grease or lubricant to the mechanism working the louvres in all the time he worked at the old prison between 1995 and its closure in 2001. The louvre mechanism did not need any lubrication.
Photographs of the bars to which the towel was fixed suggested the bars were rusty.[5]
(c)Expert evidence
(i)Pathologist Dr Sinton
[5]See ex 9.
Dr Sinton obtained his Bachelor of Medicine and Surgery in 1973 and became a specialist pathologist in 1984. He practised for 10 years as a specialist chemical pathologist and then re-qualified in anatomical pathology which incorporates autopsy work. He has worked full-time as an anatomical pathologist since 1997. Prior to June 1999 when he conducted the autopsy on the deceased, he would have conducted between 800 and 900 autopsies in his work as Director of the Northern Territory Forensic Pathology Unit. He estimated that about 5 per cent (or about 45) of his autopsies involved deaths by hanging.
He could not remember whether he saw the deceased's body at the prison but he conducted an autopsy at the Rockhampton Hospital at 12.30 pm on 17 June 1999. He noted the time of death at 5.30 pm on 16 June 1999. Rigor mortis was present. The deceased was 174 cm in height and weighed 74 kg. He was 23 years old. There was no sign of disease. Both eyelids and the anterior surface of the right eye showed faint haemorrhages, in lay terms, red eyes. There was no blood in the ear canal or the nostrils. His lips appeared blue and his tongue was protruding.
He had a ragged 10 mm abrasion on the right side of the lower lip with further abrasions around the gums on the right side. There were two rivulets of blood on the right side of the mouth. Blood around the mouth is very common in deceased people. Dr Sinton identified from photographs an area of bruising under the lining of the mouth and a laceration to the left lip. These mild to moderate injuries to the mouth were caused by some trauma or force, probably by two applications. They could have been caused by any form of trauma to the mouth, including hitting with an object or a punch or kicks. They were unlikely to have been caused by falling face down onto a hard surface because there were no other injuries to the face or nose. They were probably inflicted about 24 hours or perhaps less before death.
There were signs of recent injury to the neck because of the presence of a ligature mark, consistent with being made by the towel which was tied around the deceased's neck. Although there were separate marks on the neck, Dr Sinton considered they were all made by the ligature, although he could not exclude the manual application of some other force such as manual strangulation rather than suspension strangulation. Suspension strangulation was more likely. It was common to find alterations and indentations on the skin after death, depending on the surface on which the body was lying; not all such marks could be relied on to indicate the cause of death.
There was an area of ragged purple bruising on the right lower jaw, about 40 mm long and 30 mm wide, above which was an area of abrasion and some purple "cyanotic mottling". This was caused by trauma consistent with a light punch or a light kick or falling onto a hard surface. It was a relatively minor injury. The punctate abrasion above it was consistent having been made by something with a small round end such as a pen, pencil or nail. It was a mild injury caused by mild force. It was possible, but not likely, that it was caused by a knuckle.
Rigor mortis usually starts to become obvious about six hours after death, peaking after about 36 hours, but these times were only estimates. In colder climates or in cool mortuary conditions, rigor mortis commences earlier than six hours. In hot conditions such as in the Northern Territory, rigor mortis seldom sets in, except for a brief period. In Rockhampton in June, rigor mortis would probably occur within six hours of death.
The deceased also had a laceration to the eyebrow which was caused by contact with a flat but not sharp edge. He had scattered areas of abrasions around the knuckles and in the webbing of the middle and ring fingers. They could have been caused by minor impact with a number of pointed objects or simply be insect bites or scratches. They were caused at about the time of death.
On the right elbow there were numerous scattered areas of superficial abrasion and skin loss. These were two to three days old. The oldest was 20 x 15 mm.
A superficial incision 50 mm long and 5 mm wide was apparent on the upper right thigh about 6" below the hip bone. It was caused by mild trauma, for example, knocking into furniture, probably with a fairly sharp edge. It may have been two to three days old and was at least 24 hours old.
Some bruising to the right knee was probably caused by mild trauma, perhaps by a fall or kicking. The left knee had abrasions and contusions. This bruising was probably caused by trauma such as bumping into furniture or a rough surface. He could not exclude the cause as the dragging of the deceased over a tiled floor.
The right ankle joint had an area of abrasion about 5 mm in diameter which had been caused by some sort of minor impact. Over the lower inside surface of the left lower leg (the tibia) there was an area of faint purple and pink bruising about 50 mm x 30 mm and an area of superficial abrasion 50 mm x 50 mm which appeared to be two to three days old. The bruising could have been caused by any application of force including a kick. It was difficult to age the bruising but he thought that it could have possibly occurred 24 hours prior to death. Other marks around the ankles and feet could simply have been caused by ill-fitting shoes or socks, although they could also have been caused by dragging.
On the left ear there were two areas of bruising and subcutaneous haemorrhage which would have been caused by mild to moderate force by some sort of object with an edge, perhaps a kick.
The palm of the left hand had a black mark on it which resembled oil or grease.
An internal examination revealed a small area of haemorrhage on the right anterior part of the rib cage, 20 mm x 20 mm. It was caused by trauma, possibly a punch or a kick. It was not uncommon for there to be no corresponding external evidence of such trauma. A moderate amount of trauma was needed to produce that sort of injury.
The various wounds and abrasions to the deceased may have bled sufficiently to leave smears of blood.
Dr Sinton considered that the changes to the body, including the green discolouration present in the area around the appendix, were consistent with death occurring about 24 hours earlier, approximately lunch time on 16 June 1999.
When he compiled his autopsy report he considered that the deceased died by suicidal hanging without the interference of any other party. This remained his conclusion. At the time of the autopsy, he did not think he was told that the deceased's blood was found on a wall opposite to where his body was hanging and on the door jamb and door hinge of the shower cubicle in which he was found. He was unsure whether he was aware at the time of autopsy of evidence from others within the prison of a beating of the deceased at about the time of his death. Had he been aware of those matters, it would very likely have altered his view as to whether the deceased died by suicide or whether some other party may have been involved. He would have removed his observation in his autopsy report: "There was no autopsy evidence for the direct involvement of another party in this man's death."
Dr Sinton gave the following evidence in cross-examination. He was still of the opinion that there was no autopsy evidence supporting the direct involvement of another party in the death. In January 2004, police told him they had witnesses who claimed the deceased was assaulted on the day of his death. He agreed that the fact that there were injuries on the deceased's body, did not mean they were caused at or around the time of death. The pathologist who performs an autopsy is in the best position to age injuries. Carrying out this exercise from photographs alone can be hampered by their colour variation and two dimensional nature.
By the time he gave evidence at trial, he had conducted over 3,000 autopsies. In hanging suicides, it was common that the feet of the deceased remained in contact with the floor; it was not necessary for the feet to be off the ground for the hanging to be fatal. He was experienced in conducting autopsies in respect of other suicides committed within prisons where the various injuries present in this case were also present. Whilst it was possible that someone tied the ligature around the deceased's neck and that caused his death, it was more probable that his death resulted from him being suspended with the ligature around his neck. The injuries were also consistent with a failed attempt at suicide before a subsequent successful attempt. The ligature had a knot at one side. The indentation found behind the left ear of the deceased suggested death by suspension.
There was no damage to the nails of the deceased and scrapings from underneath his nails were taken for analysis. The superficial abrasions caused to the deceased's feet and ankles could have occurred during a period of consciousness following the suicide attempt. There was nothing about the method of tying the ligature around the deceased's neck which made suicide impossible.
If the deceased died at about lunch time on 16 June 1999, the injuries around and in his mouth could have occurred up to 12 to 24 hours earlier. The bruising around the jaw was hard to date and could have occurred up to three days earlier. He could not provide a reliable age for the punctate abrasion below the ear. Ageing of bruising is more difficult if it is done solely from colour photographs rather than from an autopsy examination. It was possible that the lacerations in and around the mouth could have meant that the deceased was bleeding freely at or about the time of his death. It was also possible that they were old injuries which re-opened because of raised blood pressure caused by the hanging. The injuries to the lips and the ear could have been caused in the course of a suicide. The window frame and window sill from which the deceased was hanging were items with which the deceased may have made contact in the course of the suicide and could have explained those injuries.
The post-mortem examination did not reveal any sexual assault upon the deceased. Sexual assaults do not necessarily leave any injury, for example, minor penetration of the anus or forced oral sex.
There were three possibilities: a suicide by hanging; a hanging by third parties; or a manual application of force around the throat followed by a suspension. He could not exclude any of those possibilities.
(ii)Pathologist Dr Ansford
Dr Ansford graduated with a Bachelor of Medicine and Bachelor of Surgery in 1965 and became a specialist pathologist in 1975. He became Chief Forensic Pathologist and was Director of the State Health Laboratory by the time he temporarily retired in 2000. He returned in 2002 as consultant senior pathologist, conducting peer reviews of the work done by other pathologists and training pathology registrars.
He has given evidence in several cases involving death by neck compression where the issue was whether the death was accident, suicide or homicide. By the time of trial he had had a great deal of experience in cases of hanging, manual strangulation and accidental neck compression, perhaps during sexual practices.
In early 2004, police asked him to give his opinion about the findings in Dr Sinton's 1999 autopsy report on the deceased. He had Dr Sinton's original autopsy report and notes and his supplementary 2004 report; other medical reports; photographs; and statements taken by police from witnesses, including prisoners and prison officers. He also examined digital photographs of other hanging deaths in custody and homicidal deaths in custody, including one caused by strangulation with a coaxial cable.
In respect of the deceased's case, he noted the following. The degree of abrasion on the neck was quite severe for a towel and he had not realised at first that the towel was braided. If rigor mortis was present in the body at 5.30 pm on 16 June 1999, this suggested that the time of death was four to eight hours earlier, but that varied greatly depending on ambient conditions.
From the photographs of the deceased, Dr Ansford thought the blood around the mouth looked like "real blood" consistent with coming from the injuries inside the mouth rather than blood-stained purging fluid which was common around the mouth in most post-mortems. It was unusual in hangings to see the ligature mark encircling the neck in a virtually horizontal fashion. The injury to the ear and the bruising below it was consistent with one application of force to that area, such as a punch, kick or, less commonly, by that part of the body falling heavily onto a hard surface. The amount of force required would be mild to moderate. The trauma to the ear was caused before death. The abrasion near the jaw was also likely to have been caused by blunt force impact. The other injuries to the face were unlikely to have been caused in that discrete incident so that it was likely that there were several separate points of application of force to the face. The injuries suggested the deceased had been involved in an altercation immediately at or within a short time prior to death. If the injuries had been present a day earlier, they would have been observed by others. The lacerations inside the mouth were very recent prior to death but he could not say how recent without having seen them.
The photograph of the left knee appeared to be of "pretty fresh" abrasions without scabs and fresh clean tags of skin. This suggested the leg had been abraded against something like the ground or a cement wall. The injuries to the other knee were similar. Minor scuff marks over the ankles also seemed recent and fresh. The injury to the right upper arm above the elbow appeared likely to have occurred at about the time of death.
A photograph showed smears of blood on the base of the thumb and on the back of the deceased's right hand. There were some injuries on the hands that might have been a day or more old. In a typical suicidal hanging, blood is not usually seen, other than perhaps some frothy blood at the mouth.
From looking at photographs without the autopsy reports, Dr Ansford considered the death may not be suicide. The ligature mark was horizontal and there was no abraded suspension mark. The other injuries on the deceased's body suggested that this may not be a simple straightforward suicidal hanging and required further investigation. The presence of blood on the deceased's right hand and on other parts of his body suggested that he had been involved in an altercation fairly close to the time of death and indicated that police should investigate the matter further. Findings of the deceased's blood on surfaces in the shower block elsewhere than in the cubicle where he was found hanging, also suggested that an altercation had taken place in that area.
Dr Ansford gave the following answers in cross-examination. He disagreed with Dr Sinton's report which did not suggest the death was highly suspicious and required further police investigation. He agreed that, from a purely pathological view point, it was true to say, as Dr Sinton did, that "there was no autopsy evidence for the direct involvement of another party in this man's death". Dr Ansford would not have described the cause of death as "hanging", but rather used the more neutral expression "compression of the neck" which allowed for possibilities other than hanging. He could not rule out an assault at some time prior to the death and a later suicide hanging. It was not possible to say from the pathology that the deceased did not kill himself. Had the photographs shown a more abraded mark around the deceased's neck, he would be more comfortable in concluding that the deceased died by hanging; there was no classical suspension mark present. At some point when the deceased was hanging from the window frame he was alive because of the abrasion and bruising to his neck. Some of the deceased's injuries were consistent with an unsuccessful attempt at suicide and a fall to the ground, followed by a successful attempt. The towelling around the deceased's neck had been twisted to make it more like a rope and it had a number of knots tied in its length at different points. It was not tied in a slipknot or noose fashion.
Dr Ansford originally told police that he thought the deceased had been garrotted with something like a coaxial cable. But he resiled from that view after examining photographs of marks on the neck of a deceased person who had been killed in that fashion. Abrasion type injuries like those found on the deceased were sometimes seen in suicides by hanging.
It was a theoretical possibility that the injuries to the deceased's lip occurred during the hanging by hitting against the widow frame or sill, although he had never before seen such injuries caused in this way. There was no pathological evidence of a forceful or sustained beating of the deceased prior to death. There were no broken bones.
In answering to questions from the judge, Dr Ansford agreed that, on the pathological evidence, even if the deceased had been assaulted, it was entirely possible that he then hanged himself.
(iii)Scientific Officer Bradley Hall
Police officer Bradley Hall has a Bachelor of Science degree and over 20 years experience in the examination of crime scenes. In March 2004, long after the death, he examined the shower cubicle where the deceased was found. The purpose of his visit was to assess and evaluate the area he had observed in photographs taken after the death in June 1999. He took possession of two pieces of angle iron which formed the edge of the doorway to the shower cubicle, and the deceased's blood-stained brown pullover worn by the deceased when found. He created a plastic overlay of the blood stains on the pullover. He created a "mockup" of the shower cubicle in his Brisbane workplace, positioning the blood stains on the walls as found in the shower cubicle in 10 Block after the death. He then placed the overlay of the blood stains on the pullover against the blood spots on the wall. He could not make a precise match.
He next considered a series of photographs of blood stains on the angles of part of the door frame to the cubicle on the right hand side as you enter. He considered they demonstrated a swipe pattern, that is, a blood pattern formed when an object with blood on it comes into contact with an object that has no blood on it. Blood is transferred in the form of a swipe, distinguished by feathering, that is, a diminishing amount of blood in the direction of travel. He found an accumulation of blood on the leading edge of the metal angles. He conducted a number of experiments with blood on a piece of cloth applied to the metal angles to find the direction of the blood stains found in the shower cubicle after the death. They were consistent with the blood stains found in the shower cubicle after the death moving from outside the shower cubicle to inside it. He repeated the experiment four times and in each case got the same result.
In cross-examination, he stated that the blood stains he examined in the shower cubicle were all contact stains, not blood spatter stains. There were two discrete blood stains on the metal angles and this made it impossible to say they were deposited contemporaneously; they could have been deposited at different times or they could have been connected. The direction of both contact blood stains was from the outside to the inside of the shower cubicle. In all, he conducted seven tests, six of which gave the same result. The test which gave a different result was flawed and unreliable.
(d)The evidence concerning whether or not the deceased suicided
(i)The deceased's mother
The deceased's mother gave the following evidence. She gave birth to him in 1976 when she was married to his natural father. She subsequently divorced and remarried. Her new husband took on the role of the deceased's father and the deceased eventually changed his surname to the stepfather's. He was a normal child who became rebellious in his teenage years. He skipped school and this developed into minor trouble with the police. He eventually moved to Mareeba before travelling to Yeppoon to live with his grandparents for about two years. In 1997, he left his grandparents' house to move in with his fiancée. During the periods he was away from home, she saw him once or twice a year. The deceased talked about marrying his fiancée. By 1998, he seemed much more settled and he was looking forward to the impending birth of his child. She last saw him in October 1997 before his baby was born. He seemed troubled and they had "words". That was the last time she spoke to him, either personally or by telephone prior to his death, other than to talk to him about the birth of his baby. On that occasion, he was very excited about the birth.
Her answers in cross-examination included the following. By the time he was 15 he had changed schools a number of times, been in trouble with the police and eventually left home. Whilst he was in Mareeba he was also in trouble with the police about drugs and firearms. Whilst visiting her in October 1997, he went out on a bender and crashed his fiancée's car. She was concerned he had fallen in with the wrong crowd. She confronted him about his cannabis use and he confirmed that he was using it. She phoned him when his baby was born in December 1998 and she may have phoned him on another two occasions. She learned from his fiancée that he had been imprisoned for a burglary of the home of his fiancée's father. She rang the father to apologise for the deceased's conduct. She did not want to talk to the deceased about his conduct and made no attempt to contact him for some time. This was his first time in prison. She understood that his fiancée was visiting him, not because she wanted to continue their relationship but because she wanted him to have some contact with their child.
(ii)The deceased's grandfather
The deceased's grandfather, a 73 year old retired marine engineer, gave the following evidence. The deceased lived with his grandparents for about a year. During this period, the deceased was employed and was a happy young man. He left to set up house with his fiancée and the young couple kept in close contact. They planned to marry but the wedding was delayed when his fiancée became pregnant. She had their baby in late 1998, just before Christmas. The deceased was elated and was adjusting very well to fatherhood. In February 1999, he was informed that the deceased was in prison. He told the deceased he was very disappointed in his conduct.
He and his wife tried to visit the deceased in prison but had difficulty obtaining permission from the authorities. They were eventually able to arrange a visit on 14 May 1999. The deceased seemed to have adjusted to prison life, was "quite happy", seemed normal, was coping and looking forward to getting out of prison and to trying to do everything right again.
In cross-examination, the grandfather agreed he was very upset, disappointed and angry when the deceased was charged with the burglary of the house of his fiancée's father. He felt that the deceased had let down his family.
(iii)The father of the deceased's fiancée
The father of the deceased's fiancée gave evidence that his home was burgled between 12 and 14 February 1999. Sapphires, coins, handguns, $1,800 cash and a pound of gold ingots were stolen. Later police told him that the deceased, together with Kevin Ryan, was responsible. About $22,000 worth of rare bank notes, coins, one handgun and one nugget of gold were not recovered. Prior to the burglary in 1998, the deceased had worked for his business, stayed at his house, and he thought him friendly, responsible and happy. He had treated the deceased as part of the family and was shattered to learn of his involvement in the burglary. His daughter, the deceased's fiancée, was upset and angry with the deceased. Before the death of the deceased, police returned four ingots which he was told had been secreted in a remote controlled car.
(iv)The deceased's fiancée
The deceased's fiancée, who was 37 years old at trial, gave evidence that the deceased was the father of her first child, born in December 1998. She had been concerned about the deceased's relationship with Kevin Ryan and their cannabis use. In early February 1999, the deceased disappeared with Ryan and she later found out they had burgled her father's house.
When the deceased was first charged and imprisoned following this burglary she did not visit him. Eventually she relented and visited with their child. She was very upset with him, but they remained engaged. They planned to marry, although there were no definite arrangements. The deceased was an easy going person. A cell mate was trying to get him a job when he was released and she planned to then resume living with him. They sometimes spoke by telephone. He was "generally upbeat … normal". She visited him every week or two, as often as she could manage with a six month old child. He loved seeing his daughter and she and the deceased enjoyed seeing each other. He was looking forward to getting out of jail and having a future with her and their child. They exchanged letters. In some correspondence he expressed concern "about Kevin Ryan talking about the stuff that was still missing from the [burglary] and … he was a bit worried about that". He telephoned her twice on 16 June 1999, the day of his death. On the first occasion she was not home. He rang again later that morning. He was "in a great mood … just normal self, talking about general things. He was pretty good." He asked her to put money into his account for telephone calls and that afternoon she transferred $15 into his account. A couple of weeks before his death, she was unable to visit or speak with him because he was in detention. She had planned to visit with their child in the week following his death. Nothing had been said between them to suggest that their relationship was over. They had not had any disagreement. There was no reason for the deceased to think that his relationship with her was over or that he would have any difficulty in seeing his child in the future. They planned a future together; to marry and perhaps have more children.
After the death, she took possession of the deceased's property from prison. Included was a remote controlled car which she handed to Ryan. Ryan had requested various items of property from her house and, as she did not want him to have any contact with her child, she gave him whatever items he requested.
In cross-examination she agreed that whilst the deceased was in custody there were times when their relationship was very "shaky" and as of June 1999 it still required a lot of work. Shortly before her first prison visit on 23 April 1999, he wrote to her noting that he had hurt her very badly and was afraid she would never forgive him; his family now wanted nothing to do with him; he was concerned that he would get a minimum of three to four years imprisonment; and there was therefore "a very big question mark" over their future relationship. Whilst the deceased was in custody she had a conversation with him about another inmate whom they both knew called "Bobby" who had tried to hang himself a couple of weeks earlier.
In re-examination, she reiterated that she said nothing to lead the deceased to consider that his relationship with her or with their daughter was over.
A letter from the Child Support Agency informing the deceased of his financial obligations to his child was found in his cell.[6]
(v)Police Officer Brian Muirson
[6]Ex 4.
Police officer Brian Muirson investigated the burglary of the home of the parents of the deceased's fiancée. Ultimately, both Ryan and the deceased confessed. A large amount of the stolen property, including some gold, was subsequently recovered in Bundaberg. Further gold ingots were found in the remote control of a toy car which had been in the possession of either or both Ryan and the deceased. The gold was returned to the father of the deceased's fiancée. Mr Muirson sent the remote control and car either to the deceased to be held in his property at the prison or to the deceased's fiancée. He did not inform them that the gold had been removed.
(vi)Solicitor Michael Pearson
Solicitor Michael Pearson acted for the deceased on the burglary charge. Police did not ask him to make a statement about his dealings with the deceased until early 2004 by which time the file relating to the deceased's case had been destroyed. He recalled that, at about the time of the deceased's death, he had a young male client who was agitated and was not coping very well in prison. He recalled informing the prison authorities about his concerns that this client may self-harm. He could not remember with certainty whether this was the deceased.
In cross-examination, he accepted that his recollections of his dealings with the deceased were that the deceased was not coping well in prison; he was somewhat distressed and agitated by his imprisonment and by the fact that he had stolen property from a family member.
A letter from Mr Pearson dated 15 June 1999 informing the deceased of his pending sentence on 20 August 1999 was found in his cell.[7]
(vii)Prison General Manager Kerrith McDermott
[7]Ex 4.
Ms Kerrith McDermott was the general manager of the prison. When she learned of the death on 16 June 1999, the shower area was secured and protocols were instigated, including a lockdown of prisoners. By this time, the deceased's body had been cut down and was on the floor of the shower area in 10 Block. She accepted that she told a police officer something about a "Dear John" letter in connection with the deceased but she has no recollection of either seeing any such letter or telling any police officer about it.
(viii)Police Officer Gregory Jones
Police officer Gregory Jones was the first police officer to arrive at the scene of the death. He received a phone call at about 7.00 pm on 16 June 1999 and arrived at the prison at about 7.20 pm. Ms McDermott informed him that she had heard the deceased had received a "Dear John" letter. She did not give the source of that information. He conducted a cursory search of the deceased's cell but was unable to find such a letter. He decided to leave a full search to more experienced investigators.
(ix)Police Officer James Sheehan
Police officer James Sheehan did such a search the following day. Although he found a number of letters which he handed to other investigators, none of them amounted to a "Dear John" letter.
The following year, he charged the deceased's cell mate in 10 Block, Shane Cant, with the offence of indecent assault to which Cant pleaded guilty. He followed another prisoner into the shower area of 10 Block, touched him on the chest, and tried to pull his pants down; Cant was naked and said "I'll root you later." A few days later, Cant approached the same victim, jumped on top of him, pinned his arms down, kissed him on the neck leaving a "hickey" and forced his fingers into the victim's anus through his clothing.
(x)Corrective Service Officer Daniel Frewen-Lord
Daniel Frewen-Lord was an intelligence officer for Corrective Services at the time of the death and remained in this employment at trial. His task was to provide intelligence to the general manager on issues affecting safety, security and good order of the prison. The deceased first came to prison on 22 February 1999. On 16 March 1999, he was sent to 8 Block where he stayed until 7 June 1999. He then served seven days in the detention unit ("DU") as a result of two breaches for offensive behaviour. On 14 June 1999, he was moved to 10 Block. On the same day, the appellant Knight moved from the DU to 10 Block.
In cross-examination, he agreed that when the deceased went through the admission process at the prison he was asked "Can you think of any problem that may cause you to consider hurting yourself whilst you are in prison?" He responded, "Sexual assault."
Albi Bauer was ordinarily in charge of 10 Block. At lunch time, half the prison officer staff went to lunch. In accordance with regular practice, if Bauer went to lunch, he would hand his 10 Block keys to the 9 Block officer who would then take responsibility for 10 Block in his absence.
(e)The evidence of 8 Block prison and prison officer witnesses
(i)Deceased's co-offender Kevin Ryan
Kevin Ryan was a co-offender with the deceased in the burglary. They divided up the stolen property. Ryan and his younger brother took much of the property, intending to travel by bus to Sydney. They were apprehended by police in Bundaberg. The deceased told him that he had secreted some gold ingots in the remote control of a toy car. The deceased and Ryan were both remanded in prison. The deceased was moved around the prison but they spoke every couple of days. After a while, they were both in 8 Block. The appellant, Williams, was Ryan's cell mate in 8 Block for a couple of months. Williams asked Ryan if he had anything stashed on the outside for when he got out. He told Williams to talk to the deceased about the gold he had stashed on the outside. He thought he was present when Williams spoke to the deceased about selling gold at $300 an ounce and the deceased agreed to sell the gold to Williams. The deceased later changed his mind. Williams was angry; they argued and had a bit of a fight. Ryan told the deceased that he should not have changed his mind. Williams had "got into" the deceased for reneging on their deal: he punched him to the head a couple of times in the deceased's cell. Williams then assaulted Ryan's new cell mate for talking about these matters and told him to tell the deceased to "shut his mouth". When Williams went to the deceased's cell, the deceased ran into the yard so that the prison officers could see what was happening. Williams asked Ryan to give him half the gold and Ryan agreed.
The deceased was in trouble in 8 Block for swearing at prison officers and was locked in his cell for a week as the DU was full. Williams was placed in the DU.
On one occasion when Ryan was travelling to court in the prison van with the appellant Knight, Knight offered to buy his shoes. He took his shoes off and gave them to Knight but the prison officers returned them to Ryan's property.
The deceased was sent to the DU for making offensive comments to prison officers. Whilst he was there, he asked Ryan to buy a new pair of shoes for Knight. Ryan looked into this but could not afford to buy them.
He last spoke to the deceased on the morning of his death. The deceased had moved from the DU to 10 Block. He seemed happy as always. He did not appear to have any injuries. After lunch time that day, he heard the deceased was dead.
In cross-examination, he stated that the deceased was generally happy during the day but at times he was upset about his relationship with his fiancée, although he hid these feelings and maintained an appearance of being happy. As the deceased was in jail for the first time, he did not realise it was unwise to boast about having proceeds from his offending outside prison.
(ii)Prisoner Nathan Bradden
Nathan Bradden, an Indigenous man, was serving a sentence in June 1999 for armed robbery. Since his release, he had stayed out of jail and at trial had been in steady employment for five years. He was in 8 Block with the deceased and the appellant Williams. He described the deceased as "a pretty quiet lad", outgoing for a young guy. The deceased told him that he was being harassed by Williams but did not say what this was about. He encouraged the deceased in his hobby of making models from match sticks. He noticed the deceased had been sharpening a toothbrush handle. The deceased was keen to get out of prison and stay out.
(iii)Prisoner Clifford Rees
Clifford Rees, an Indigenous man, was serving a sentence for armed robbery. He met the deceased in 8 Block. He knew him by the nickname "Elvis" because when he was first admitted to prison he had big long sideburns. The deceased told him he was in prison because he had stolen a safe containing money, gold, jewellery or something. The deceased did not want to move to 10 Block but he did not know why, other than that he was happy in 8 Block. The deceased was removed from 8 Block by a number of prison officers after a struggle. On the last occasion he saw the deceased, he appeared physically OK and was in an alright mood.
(iv)Prisoner Jason Donovan
Jason Donovan was serving an 18 month term of imprisonment for break and enter offences in June 1999. He was then 19 and, for a time, shared a cell with Ryan and, later, the deceased in 8 Block. The deceased told him he was in prison because he and Ryan had stolen a safe containing jewellery and gold. Knight spoke to the deceased about giving the gold to Knight. The deceased did not really want to hand the gold over and argued with Knight about it. He thought Ryan was prepared to hand over the gold but the deceased was not. The deceased was intimidated by Knight and obviously scared of him. Donovan supposed this had something to do with the gold. The deceased told Donovan that he had stashed the gold inside a remote controlled car which was in the reception area at the jail. The appellant Williams was moved from 8 Block to 10 Block. Soon afterwards, the deceased was told he was transferring to 10 Block and Donovan was transferring to 7 Block. They were both pretty shocked and could not see any reason for this move. They tried to convince the block officer to reconsider. The deceased was scared about the transfer to 10 Block because Williams was there. Their protests resulted in them both being sent to the DU. When the deceased moved out of 8 Block, he and Ryan were not getting along because they were arguing over the gold.
The deceased became friendly with Knight in the DU and trusted him. He heard them talking about the burglary and about what the deceased had done with the proceeds. The deceased thought that Knight had sorted out the problems between the deceased and Williams. The deceased did not want to go to 10 Block because Williams was there. The deceased seemed happy when he spoke about his baby daughter. Knight left the DU on a daily basis to visit 10 Block.
(v)Prisoner Mark McIlwain
Mark McIlwain was in 8 Block with the deceased whom he saw on the morning he was moved from the DU to 10 Block. He asked how things were and the deceased said that everything was fine. He seemed "okay" physically and mentally. An extract from McIlwain's statement to police was tendered and read to the jury.[8] McIlwain stated that the deceased was under pressure from Williams to sign over gear hidden in a remote controlled car. The deceased and Ryan told McIlwain that they had "copped a touch up off" Williams. The deceased, McIlwain and others in 8 Block asked the prison officers to ensure the deceased came back to 8 Block. The deceased told prison officers on the day he moved to the DU that he did not want to go to 10 Block. He was very worried about the move to 10 Block.
(vi)Prisoner James Doyle
[8]Ex 11.
James Doyle was housed in 8 Block with the deceased for about three months. The deceased seemed happy-go-lucky, spoke of his girlfriend and child and had a good attitude. They played football together. After the deceased left the DU, he spoke to him at the fence between 8 Block and 10 Block. The deceased was upset about his move to 10 Block and did not want to return there. That was the last time he saw the deceased. He was uninjured. He thought he died the following day.
(vii)Prisoner Henry Robinson
Henry Robinson was serving a 12 month sentence in 1999 for cultivating cannabis. He had not been in trouble with the police since. He shared a cell with the deceased in 8 Block. They talked a fair bit at night. The deceased loved his wife and baby. He was a typical 20 year old, naïve and full of bravado, but generally a nice kid. He told Robinson that he had stolen a safe and kept some small gold bars. Robinson advised him to keep that to himself, but the deceased did not follow that advice. He seemed to come to some arrangement with Williams to share the gold, but later he cancelled the arrangement. Williams' relationship with the deceased then became strained and lacked camaraderie. On one occasion when Williams walked past the deceased in the yard, Robinson heard a thump and he noticed the deceased was hanging his head. The general feeling between them was not good. When the deceased was told he was moving to 10 Block, he was very distressed. He said, "Don't send me down there, I'll get killed down there". He was physically removed from the DU by about seven or eight prison officers.
(viii)Prisoner Alan Mason
Alan Mason, an Indigenous man related to the appellant Williams, was serving a sentence for rape in June 1999. He knew the deceased in 8 Block where Mason conducted bible studies. The deceased was pretty happy-go-lucky and got on with everyone; he was a bit of a larrikin. He told Mason that he had been skiting about his crime and got slapped around and pulled into line by Williams. Williams left 8 Block for 10 Block. Mason and some others tried to stop the deceased's transfer to 10 Block as he knew the deceased was worried about it. On the morning the deceased died, just before muster at 11.20 am, probably about 10.50 am, he had a yarn with the deceased in 10 Block through the gate. Robinson and McIlwain were present. The deceased was in a pretty happy mood, looking forward to a visit from his girlfriend and baby.
(ix)Prisoner Marshall Hill
Marshall Hill, an Indigenous man, was serving an 18 month sentence for unlawful wounding in June 1999. He was released in 2000 and has not been in prison since. He knew the deceased when they were both in 8 Block. The deceased got on well with everybody and cracked a few jokes. He always talked about his baby girl and his family whom he missed. He was happy when they visited. He overheard the deceased talking about his offending and that he had stolen some gold. On one occasion, he saw Williams walk into the deceased's cell and argue with him. He heard some muffled noises as if someone was getting hit or slapped. Immediately afterwards, he saw a big red mark on the side of the deceased's face. The deceased said that Williams had had a few words to him and slapped him. At lockdown, the prisoners would often make gorilla animal noises to stir up the prison officers. The deceased joined in, prison officers blamed him for the noises, and decided to move him out of 8 Block. The deceased did not want to go. Later when the deceased was in 10 Block, he "whinged" about it and said he did not want to be there. He did not see any injuries on the deceased. About a day later, the deceased was dead.
(x)Prison Officer Phyllis Weeks
Phyllis Weeks was the permanent officer in the 8 Block yard. The deceased was to be moved to 10 Block for disciplinary action. She did not have any problems with him but he was a bit of a cheeky larrikin who "mouthed off" at other officers. He seemed to be on an equal footing with other inmates in 8 Block. One evening there was a lot of silly noise coming from the cell he shared with Donovan. Supervising officer Anderson decided to separate them and send them to other blocks. When she told the deceased he was moving to 10 Block he refused to go and was breached. He said he could not go because he feared for his safety, adding "They're going to kill me". But he would not specify whom he feared. He seemed to think that the DU would be safer. DU prisoners could call out across their cells to each other and to other prisoners in the gym and in 10 Block.
(xi)Prison Officer Sharon Williams
Sharon Williams was a prison officer working in 8 Block on the day the deceased died. At about 9.50 am when she was moving 8 Block inmates to the library, she saw that the deceased was at the front of the unit having a conversation with an 8 Block inmate. The conversation appeared friendly and relaxed. As he was not supposed to be in 8 Block, she directed him to move back to 10 Block. His health seemed fine and she did not notice that he had any injuries.
(f)The evidence of DU prisoner and prison officer witness
(i)Prisoner Craig Findlay
Craig Findlay was a prisoner in the DU. He was charged with murder in January 1999 and convicted in September 1999. He remembered the deceased who was in the DU with Donovan, Nicholas Sullivan and the appellant Knight. Findlay was in the DU because his urine tested positive for marijuana. The deceased was a pretty good lad who made him laugh a lot; he seemed down to earth and loved life. Although he did not discuss it with the deceased, he had heard he was in jail for "a safe job" involving $30,000 stashed away somewhere. The deceased mainly talked to the appellant Knight. The deceased did not have any physical injuries. He was worried about going to 10 Block but Knight told him that he had arranged for him to be safe there.
(ii)Prisoner Bobby Devon
Bobby Devon was in prison for various offences. He was in the DU with the deceased. They had a couple of conversations. Devon was in protection and as the deceased spoke with him he thought he was a pretty nice guy. He was friendly but a bit stressed out. He spoke about his "missus and kid" and was looking forward to getting out to them. He did not want to go to 10 Block because he had "dramas". He was worried about getting bashed by Williams. Devon heard the deceased tell the prison officers, and also the appellant Knight, of these concerns. Knight told the deceased just to go to 10 Block, face the drama and he would be alright. Devon noticed no signs of physical injury to the deceased.
(iii)Prisoner Scott Friedrichs
Scott Friedrichs was a protection prisoner in the DU because drugs were found in his urine tests. He knew the deceased, although only for one day. The deceased was scared; he did not want to leave the DU. The senior officer told him he was going to 10 Block. The deceased repeatedly said that he could not go there as he had "troubles". The deceased, Donovan and Knight talked all day. Knight told the deceased he would be alright if he went to 10 Block; he would be looked after. The deceased seemed pretty harmless, just a young kid trying to make his way. He did not recall seeing any injuries to the deceased.
(iv)Prisoner Brodie McLuckie
Brodie McLuckie was in the DU with the deceased, Knight, Devon, Friedrichs and Donovan. He knew that the deceased had a girlfriend and young child whom he wanted to get out and see. He missed his girlfriend. He had stolen a safe from a stepfather (sic) and only about one-fifth of the items in the safe had been recovered by police. The deceased drew a map showing the location of the safe and gave it to Knight. McLuckie apprehended that the amount of property in the safe was valued at about $300,000. McLuckie understood that if the deceased had not "settled down" he would leave the DU for 10 Block. As Knight was released from the DU into 10 Block during the day he said he had spoken to others in 10 Block and that, if the deceased went there, he would be looked after and not harmed. The deceased was still nervous about going to 10 Block despite Knight's reassurances but was more confident than he had been
(v)Prisoner Officer Ian Davis
Ian Davis, a correctional officer, recalled the deceased. Davis was supervising 10 Block and the DU at the time of the death. As prisoners come and go from 10 Block, records are kept in the daily log book by the supervisor but it was often not kept accurately. He described the record keeping of prisoner officer Albi Bauer as "mediocre". The deceased had been in 10 Block for about three or four days before his death. He was in good health and had no injuries. He was released from the DU into 10 Block on 14 June 1999 at about 1.40 pm.
(g)The evidence of 10 Block prisoner witnesses
(i)Prisoner Edward Malcolm
Edward Malcolm, an Indigenous man, was in prison in 10 Block on the day the deceased died. He went to the shower block at about 9.00 am. There was a lot of music. He thought he heard one or two people arguing or fighting. The noise seemed to be coming from the shower block on the left-hand side looking down 10 Block from the officers' donga. He continued on into the shower block on the right-hand side and then returned to his cell, probably after about 15 minutes. He had breakfast in the mess room and then returned to his cell. He could not remember what he did for the rest of the morning or at lunch time. He could not remember what he did that afternoon.
In cross-examination, he agreed he gave the police a statement in March 2004. He agreed he knew the appellant Robertson whose cell was next to the right-hand shower block. Robertson worked out a lot in that shower block, morning and night, and would play his music whilst training. On the morning of the death, he saw Robertson training there. After Edward Malcolm had breakfast, he went to Alan Shipp's cell where Shipp was painting. He only became aware of the death when prison officers ran into 10 Block at the end of the day. He spoke to the police the day after and told them this. This was also his evidence at the committal proceedings in October 2007.
(ii)Prisoner Christopher Nelson
Christopher Nelson, an Indigenous man, was imprisoned in 10 Block together with Patrick Weribone, Isaac Barlow, Bradley Booth and the three appellants. He did not know the deceased. He had never spoken to him but had recently seen him in 10 Block. He had not noticed any injuries on the deceased prior to his death.
On the day of the death, Nelson played touch football, returned to his cell which he shared with Weribone, had a smoke and waited for lunch. He watched TV for about 20 minutes and at about 10.50 am went to the mess room, collected his lunch and returned to his cell. He took his lunch plates back to the mess room and noticed a lot of water coming from inside the left-hand shower block. He had never seen this happen before. He jumped over the water, washed his plates in the mess room and returned to his cell. There was always a muster at about 11.30 am. If somebody was missing at a muster, another prisoner would sing out the missing prisoner's name, explaining he was in the shower or the toilet; this usually satisfied the prison officer. He played cards and smoked in his cell for about 20 minutes.
It does not seem to me that the primary judge's directions were impugned in any way by the fact that some of the 10 Block prisoners who gave evidence did not comment on Mr Bauer's practices, or that about 15 of the 30 or so prisoners in 10 Block at the time of the deceased's death were not called to give evidence. The prosecution was not obliged to call as a witness all inmates of 10 Block at relevant times. Nor was it obliged to ask every 10 Block inmate who was called as a witness if he had a relevant recollection. There was no contention by the defence that any one or more of the absent 10 Block inmates should have been called or that the failure to call them gave rise to any procedural unfairness. It was open to the defence to call such persons had the defence wished to do so.
Also, it was not submitted that there was any lack of fairness in the prosecution's failure to call Mr Bauer and it was open to the appellants to call him.
The primary judge was criticised for not giving the jury a direction of the type referred to in Jones v Dunkel[64]concerning the prosecution's failure to call Mr Bauer. Such a direction would have informed the jury that it would be proper for them to draw the inference that Mr Bauer's evidence would not have assisted the prosecution.[65] It may be doubted that such a direction would have been of much benefit to the defence. The jury was aware that Mr Bauer was the maker of the record which was quite detrimental to the prosecution case and the primary judge's comments were obvious enough.
[64](1959) 101 CLR 298.
[65]Jones v Dunkel at 308 and 312.
It does not appear to me that the primary judge's robust comments in relation to Mr Bauer's evidence or his failure to give the direction sought amounted, in themselves, to an error of law or gave rise to a miscarriage of justice. The primary judge's approach, however, is relevant to the complaint that the summing-up was unbalanced.
The judge's directions as to the evidence of indigenous witnesses
The observations complained of in relation to indigenous witnesses commenced with this passage:[66]
"One of the additional difficulties that you face, in this case, is in assessing the evidence of indigenous witnesses. Quite often English is not their first language. As well, some may have come from a different culture to your own, with differing customs and differing habits of dealing with aggressive questioning, and you might expect, in your own culture, or from your own experience, some had a habit of just agreeing with whatever was put to them, even though it might be contrary to what they had just said.
You need to decide that any agreement was merely the witness giving up or acceding to the questioner, without any real adoption of the point and issue, or whether the agreement was a deliberate and thoughtful acceptance of the proposition put."
[66]Vol. 6, R 2569, 2570.
The primary judge's subsequent commentary went further than the above remarks in asserting that indigenous witnesses all had the characteristic of readily agreeing with leading questions. In that regard, his Honour, when discussing Mr Malcolm's evidence, said:[67]
"The real difficulty, especially with indigenous witnesses, is their readiness to agree to leading propositions put to them. That might, of course, infect the statement as much as the oral evidence, now (sic) matter how careful the taker of the statement might try to be.
It's a matter for you to weigh up, whether Mr Malcolm's account, given to you in evidence-in-chief, is more reliable than his adoption of things put to him in the course of cross-examination. You might think there was a deal of force in Mr McGuire's point, that if he had been told that there was a body hanging in the shower block when he'd just had a shower, he would be very unlikely to go back and have a second shower in that same block, as he said he did in his evidence-in-chief.
…
Again, you have the difficulty of dealing with an indigenous witness in determining to what extent his apparent acceptance of propositions put to him reflect what he truly means to say. I'll return to this aspect of the matter later."
[67]V6, R 2691-2692.
The same approach was taken later in the summing-up where the primary judge, referring to Mr Malcolm's evidence, said:[68]
"Again, if you have - again, you have the difficulty of dealing with an indigenous witness and determining to what extent his apparent acceptance of propositions put to him in a leading fashion in cross-examination is reliable. Nonetheless, that is plainly what the Malcolm brothers have said."
[68]V6, R 2728.
There were seven indigenous witnesses from 10 Block. Plainly, there were many inconsistencies in the evidence given by each of them, as the primary judge pointed out. What was to be made of those inconsistencies was important, yet, as Margaret McMurdo P remarks in her reasons, at least some of these witnesses appeared quite ready to defend their respective positions when it suited them to do so and exhibited little, if any, tendency to agree with leading questions. The directions to the effect that the evidence of this large and significant body of indigenous witnesses should be approached differently to that of other witnesses had the potential to disadvantage the defence. The directions implied, for example, that concessions made in cross-examination should be scrutinised more carefully than would be the case with other witnesses.
Counsel for the respondent identified no evidentiary foundation which would have entitled the primary judge to give the broad directions which he did. The problem with those directions is identified in the following passage from the reasons of Macrossan J, as he then was, in R v Condren:[69]
"Ordinary jurors may well accept that a person's use of language will be influenced by his educational standard, his cultural background and his life experience but, while being generally aware of this, if expert evidence can point out more precisely than general experience would reveal just how such factors can operate on language choice, then there may be scope for the introduction of expert testimony when, in a case, it is relevant for a jury to know how an individual's peculiar choice of language may be identified. The general rule is that opinion evidence is inadmissible but expert evidence, if otherwise relevant, is generally admissible if the tribunal of fact needs the benefit of expert assistance to form a correct judgment on a question at issue …
[69](1987) 28 A Crim R 261 at 266.
He went on to say:[70]
"I do not consider that evidence of the alleged general characteristics of the speech of persons of Aboriginal descent and the general pattern of their response to questions is admissible in the present case in proof of the way in which the accused would, or might, have replied to questions asked of him if they had been put in the form seen in the record of interview. There are difficulties in defining the class of Aboriginals in any helpful way since it is necessary to include such a diverse range of individuals within it and one would think there are difficulties in accounting for the variations in speech characteristics which might be observed amongst all the members of that large class. The verbal response characteristics of a class is not a matter at issue but only the alleged responses of the applicant. Eades has conferred with the applicant and, as it is claimed, has had an opportunity to detect any of his idiosyncratic speech characteristics which are relevant for mention. To the extent that he may share these speech characteristics with other Aboriginals or other persons in general is not relevant and to the extent that other Aboriginals have alleged speech patterns which differ from the applicant's then that is even more obviously irrelevant. These observations apply both to Eades' evidence about the alleged structure of Aboriginal speech patterns and to her evidence of the tendency of Aboriginals in general to make what is called 'gratuitous concurrence' to propositions put to them."
[70]At 267-268.
The above passage was referred to with apparent approval by Steytler J, in Stack v Western Australia.[71]
[71][2004] WASCA 300 at paras [115]-[116].
It is not immediately obvious to me, however, that the comments of the primary judge under consideration caused unfairness to the appellants so as to cause a miscarriage of justice.[72] The learned prosecutor, as emerges from his address, had the perception that there was a tendency among the indigenous witnesses to agree with what was put to them. The primary judge, it would seem, shared that perception. It was not suggested by counsel for the appellants that such a perception was not justified in relation to some witnesses.
[72]C.f. Simic v The Queen (1980) 144 CLR 319 at 327, 328.
Consequently, it was appropriate that the primary judge raise with the jury the possibility that the evidence of specified witnesses may have been affected by a disposition to agree with what was put to them. It was not suggested that it was impermissible to attribute this willingness to the witnesses' cultural background. If the primary judge had taken this course, it is difficult to accept that the jury would not have had the observations of the judge in mind when considering the evidence of indigenous witnesses who had not been so singled out. Of course, any tendency to treat all witnesses as having similar characteristics or propensities could have been minimised by appropriate observations. Finally, in this regard, I note that the primary judge, unlike this Court, was in a position to assess whether the same tendency to agree or make concessions was present in all of the indigenous witnesses and to what degree. In view of my conclusion that the next ground of appeal has been made out, it is unnecessary for me to express a concluded view on this ground.
Was the summing-up unbalanced so that it deprived the appellants of their right to a fair trial?
The appellants submitted that when taken as a whole the summing-up was unbalanced and unfair. It was contended that it "constituted a prosecutor's address that no prosecutor would have been permitted to deliver". Counsel for Knight submitted that much of the summing-up was devoted to demolishing the appellants' respective cases. Reliance was placed by all appellants on the alleged deficiencies in respect of indigenous witnesses, Prison Officer Hodda and Prison Officer Bauer.
The primary judge's summing-up commenced at 2.23 pm on 24 July 2009. The Court adjourned at 3.21 pm and the summing-up recommenced at 10.04 am on 27 July. The jury retired at 2.45 pm that day and redirections were given at 5.25 pm. There had been about 23 days of evidence and some 43 witnesses had been called. After giving general directions, the primary judge identified for the jury what he described as "three essential questions" for the jury to decide. The questions were:
1."… has the prosecution excluded beyond reasonable doubt the hypothesis that [the deceased] committed suicide?"
2."… assuming that [the deceased] was killed, has the prosecution established beyond reasonable doubt that the three accused men caused his death?"
3.If yes to the above, "… has the prosecution established beyond reasonable doubt that the three accused men had the intent to cause death or grievous bodily harm at the time they did the act which caused [the deceased's] death?"
The primary judge then dealt with circumstantial evidence and identification evidence in some detail. Having done so, he explained that he proposed to marshall the facts "in some logical way" and suggested that the jury consider four issues and in this order:[73]
"… first, can the prosecution establish, beyond reasonable doubt, that the time of death was around lunchtime? If the death could have happened at some other time, say, after evening muster, then the prosecution must fail, as there is no evidence of the accused doing anything, at some later time, to the deceased.
Second, can the prosecution exclude suicide beyond reasonable doubt? If they can't, then again, the prosecution will fail.
Third, if you are satisfied that the deceased did not commit suicide, and so was killed, then the question is, can the prosecution satisfy you beyond reasonable doubt that these three men caused his death?
Fourth, if you reach that point then the final question is, are you satisfied beyond reasonable doubt that at the time they killed him, the accused had an intent to kill or cause grievous bodily harm?"
[73]R 2591-2592.
The primary judge took the jury to the evidence in relation to each of the four identified issues in considerable detail. In so doing, the primary judge did not merely state the evidence relevant to the issues but referred to arguments advanced by the defence and identified deficiencies in the defence case. He also identified deficiencies in the evidence given by defence witnesses frequently and, at times, at considerable length. There was no criticism, for example, of the way in which the primary judge dealt with inconsistencies in the evidence given by prosecution witnesses and the warnings given concerning acceptance of the evidence of prosecution witnesses as a result of matters such as: a witness'
sinterest in obtaining favourable treatment from prison or prosecutorial authorities; convictions for dishonesty; the possibility of memories being distorted or created by discussion with others and conditions bearing on the extent and reliability of memories, such as alcohol abuse.
The summing-up was carefully assembled and presented in a logical, digestible manner. It provided the jury with a clearly expressed reminder of the evidence of relevant witnesses in a useful context accompanied by commentary on concerns relating to that evidence. For example, in dealing with the witness Nelson, the first of the 10 Block prisoners who gave evidence, the primary judge: described the witness' physical appearance and attire; identified whether the witness was an indigenous person; described the witness' prior convictions; cautioned about accepting his evidence as a result of those convictions; referred to a concession by the witness that he had previously given false statements in the matter; identified inconsistencies in his evidence and referred to the witness' stated reasons for his conflicting accounts.
However, other aspects of the summing-up give rise to a concern that the primary judge's approach may have resulted in a lack of balance which caused unfairness to the appellants. In order to address this question I will refer to parts of the summing-up which provide examples of the approach in the summing-up complained of by counsel for the appellants.
In the course of dealing with the issue of suicide, the primary judge referred to the defence contentions. One of these was that a reason for suicide could have been the failure of the deceased's relationship with Ms Chapman, a woman with whom he was in a de facto relationship. In that regard, the primary judge said:
"As to the relationship with his de facto, the defence contentions require that you find that Ms Chapman is either a liar or very much mistaken, so her credibility and reliability must be assessed by you. You will recall that the defence pointed you to various passages in the evidence about the state of the relationship and how strained it was.
In particular you might recall being told about a letter where the deceased wrote to Ms Chapman and spoke of his family wiping him, or words to that effect, and that he said, and I quote, 'And now this.' Ms Chapman said she didn't know what the reference to 'this' was. The inference you were asked to draw, contrary to her sworn evidence, was that she had told him that the relationship was at an end. The point that was not mentioned, and the crucial point for any assessment of evidence about relationships, is when was this written? When are we talking about?
In re-examination Mr Pointing took Ms Chapman to another letter that she said accompanied the one that the defence had cross-examined her on, in which [the deceased] had spoken of his future with his child. That letter can be dated very precisely, as he refers to his daughter as three months old.
So if you accept her account, his reference to 'And now this.', is in late March or early April. His death is months later. It is a matter for you whether that is significant, but after early April he had the visit from his grandparents and the visits commenced from Ms Chapman. There are letters sent and phone calls.
We know for a fact that he doesn't suicide or attempt suicide when he is not receiving visits and is feeling abandoned by his family. Does it make sense that he despairs when he is receiving visits? If the 'this' is news that his relationship is at an end and he finds it devastating, then there is no evidence of that from the fellow prisoners.
Every prisoner who is questioned about the matter, said that the deceased appeared to be a happy fellow with a happy go lucky nature. Every witness asked, and who have had a chance to observe him, said that he seemed to be healthy and that his mood seemed normal. A number spoke of [the deceased] mentioning his girlfriend and child."
The primary judge then discussed other evidence which was inconsistent with the deceased having a reasonable reason for or inclination towards suicide. After dealing again with the deceased's relationship with Ms Chapman, the primary judge referred to Ms Chapman's evidence that on the day of the deceased's death, Ms Chapman had spoken to him twice over the telephone, had been requested by him to put money in his account so that he could make telephone calls and that she had done so. Her evidence, the primary judge pointed out, was that on that day, the deceased "was in a great mood". Also in the course of addressing the topic of suicide, the primary judge said:[74]
"You are taken by defence counsel to the evidence of Mr Mason, to the effect that he thought that all was well between the deceased and Williams. The cogency of his opinion, of course, depends entirely on how familiar he is with the deceased. The difficulty with Mason's evidence is the consistent body of evidence from the detention unit prisoners."
[74]R 2637.
In addressing theories advanced by the defence to support a rational hypothesis that the deceased committed suicide, the primary judge said:[75]
"If you're going to adopt an hypothesis as rational and reasonable, it must fit the known facts. On the suicide theory of the case, you need to consider whether it is improbable that a man with blood on his hands can tie a towel tightly around his neck and on the bar without any blood getting on the towel. Whatever assumption you adopt, whether it be that the deceased injured himself in a failed attempt at suicide or was assaulted and then suicided, he must tie or retie that towel. We know that he had blood on both his hands when found dead. Again, I stress no one fact is conclusive of any theory.
As well, if there were two attempts at suicide, that being one theory advanced, then the fact that there is no grease-like substance on the towel must also be put into the scales. The deceased must have handled the towel, on that theory, after tying it to the bar, and he clearly has the substance on his hands when he died. If someone else tied the towel, it explains the absence of blood and the grease-like substance on the towel, and so fits the known facts."
[75]R 2641.
His Honour continued to comprehensively demolish the defence contentions:[76]
"The third piece of physical evidence is the presence of the smears of blood under the mirror. Again, if you adopt a theory, it must fit the facts. The suggestion made to you based on the suicide theory was - at least one suggestion was that he wanted to clean the blood off his face after first attempting suicide, it failing, he injur[ed] himself and then wanting to clean himself before having another go, so to speak.
Alternatively, it is said he could've wanted to clean his face after being assaulted or simply to check the damage. This man of course must, unless a hypothesis, also leave blood low down on the doorjamb going in or out of the cubicle, and he does this whilst getting to or from the sink because he's concerned about the blood on his face.
If he has the strength to get to the basin and wash his face, why is he on the floor as he passes the cubicle door, whichever way he is going? Now, I don't say for one moment that any one fact on its own proves the case either way. You have to take them together and exercise your commonsense and your experience at life and determine if there is a reasonable, rational hypothesis that fits all the facts."
[76]R 2645-2646.
Addressing an argument that the deceased must have left the shower block after being assaulted, if he was assaulted, because he had changed a white shirt a witness had said he had been wearing when entering the shower block, his Honour said:[77]
"There are three things to say about that argument. The first, the evidence that he was wearing a white shirt is hardly compelling. Second, Bailey, who is next door, didn’t see or hear it happen. Third, there are other possibilities, for example, someone else took the shirt away.
There is no reason to think that third parties didn’t have access to the shower block throughout that afternoon. In fact, on some accounts is it (sic) certain that people did go in there. For example, if you accept Malcolm about Mr Knight and the bread, it is said that Knight went in there. If the accept the account of Bailey and Nelson about the water running, then someone sometime turned the tap off.
I'll finish off what I want to say about the white shirt theory. The real problem with it is its foundation. I said the evidence wasn’t compelling that he was ever wearing a white shirt, and I remind you of the three pieces of evidence I could find in the transcript about it."
[77]R 2650-2651.
Other defence theories in relation to suicide were peremptorily dismissed:[78]
"Mr McGuire made a submission that on balance the pathological evidence supported suicide. It did no such thing. Dr Sinton said that on balance he favoured suspensory hanging as the cause of death, but that is a very different statement to one that he favoured suicide.
Mr McGuire submitted that it was fanciful to suggest that [the deceased's] hands and legs could be held. He didn’t say why. Certainly no witness said that it was fanciful. The question is whether, on the Crown case, these three men between them could so restrain a 74 kilogram, 23 year old man?"
[78]R 2656.
Counsel for the appellants also relied on the passage from the summing-up quoted in paragraph [11] above in which the primary judge dismissed the appellants' complaints about the prosecutor's failure to call Mr Bauer.
A judge in a jury trial "may comment (and comment strongly) on factual issues"[79] provided that the summing-up remains balanced and fair.[80] In B v The Queen,[81] Brennan J said:
"A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to that defence and the matters relied upon in support of the defence'. I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg v Hulse:
'[T]o use the words of the Privy Council in Broadhurst's Case, there is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views.'" (footnotes omitted)
[79]RPS v The Queen (2000) 199 CLR 620 at 637 and see also Seymour v Australian Broadcasting Corporation (1977) 19 NSWLR 219 and Hoger v Ellas (1962) 80 WN (NSW) 869 at 875.
[80]Green v The Queen (1971) 126 CLR 28 at 34.
[81](1992) 175 CLR 599 at 605, 606.
Whether expressions of opinion on the facts in a summing-up exceed permissible bounds depends on the impression formed by a reading of the summing-up as a whole[82] and may be difficult to determine. The following discussion in the judgment of the Court in R v Cohen and Bateman,[83] referred to with apparent approval in the reasons of Lord Bingham in R v Bentley (Deceased),[84] is pertinent:
"The learned judge is said to have interfered improperly in the conduct of the case, and not to have put it fairly to the jury, and not to have stated the law properly. The latter would be fatal unless the case came within the proviso of the section. The other observations of the learned judge only become grounds of appeal if they have in fact caused substantial miscarriage of justice. In our view, a judge is not only entitled, but ought, to give the jury some assistance on questions of fact as well as on questions of law. Of course, questions of fact are for the jury and not for the judge, yet the judge has experience on the bearing of evidence, and in dealing with the relevancy of questions of fact, and it is therefore right that the jury should have the assistance of the judge. It is not wrong for the judge to give confident opinions upon questions of fact. It is impossible for him to deal with doubtful points of fact unless he can state some of the facts confidently to the jury. It is necessary for him sometimes to express extremely confident opinions. The mere finding, therefore, of very confident expressions in the summing up does not show that it is an improper one. When one is considering the effect of a summing up, one must give credit to the jury for intelligence, and for the knowledge that they are not bound by the expressions of the judge upon questions of fact. No doubt the learned judge did express himself very strongly. But on the main question we think him right."
[82]B v The Queen (supra) at 606.
[83](1909) 2 Cr App R 197 at 208.
[84][1998] EW CA Crim 2 516.
The permissible limits of judicial comment were considered in the following passage from the advice of the Judicial Committee of the Privy Council in Mears v R,[85] also referred to with approval by Lord Bingham in R v Bentley (Deceased):
[85](1993) 97 Cr App R 239 at 243.
"The Court of Appeal took the view that the trial judge was not putting forward an unfair or unbalanced picture of the facts as he saw them. In rejecting the defendants submission that the comments of the judge were unfairly weighted against him, the court asked themselves whether the comments amounted to a usurpation of the jury's function. In the view of their Lordships it is difficult to see how a judge can usurp the jury's function short of withdrawing in terms an issue from the jury's consideration. In other words this was to use a test which by present day standards is too favourable to the prosecution. Comments which fall short of such a usurpation may nevertheless be so weighted against the defendant at trial as to leave the jury little real choice other than to comply with what are obviously the judge's views or wishes. As Lloyd observed in Gilbey (unreported) January 26, 1990:
'A judge … is not entitled to comment in such a way as to make the summing up as a whole unbalanced … It cannot be said too often or too strongly that a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.'
Their Lordships realise that the judge's task in this type of trial is never an easy one. He must of course remain impartial, but at the same time the evidence may point strongly to the guilt of the defendant; the judge may often feel that he has to supplement deficiencies in the performance of the prosecution or defence, in order to maintain a proper balance between the two sides in the adversarial proceedings. It is all too easy for a court thereafter to criticise a judge who may have fallen into error for this reason. However, if the system is trial by jury then the decision must be that of the jury and not of the judge using the jury as something akin to a vehicle for his own views. Whether this is what has happened in any particular case is not likely to be an easy decision. Moreover, the Board is reluctant to differ from the Court of Appeal in assessing the weight of any misdirections. Here, their Lordships have to take the summing up as a whole, as Mr Andrade submitted, and then ask themselves in the words of Lord Sumner in Ibraham v R [1914] AC 599, 615, whether there was:
'Something which … deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future.'
Their Lordships consider that the judge's comments already cited went beyond the proper bounds of judicial comment and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting."
Not without hesitation, I have concluded that the summing-up, considered as a whole, lacked balance and was unfair to the appellants despite the primary judge's obvious aim of achieving both balance and fairness. The overall approach of the summing-up was to investigate the four issues set out in paragraph [28] above, and to state express or implicit views on the manner in which they should be resolved and on the merits of the arguments mounted by the defence. Viewed in its totality, and notwithstanding the primary judge's many and careful criticisms of the evidence led by the prosecution as well as reminders that the jury were free to disregard his comments on the facts, there was a sufficient departure from a trial judge's proper role to warrant the conclusion that the appellants were denied a fair trial and that, in consequence, the trial miscarried.
The consequence of following the course devised by him to give order and digestibility to his rehearsal of relevant facts, was that the primary judge strayed from the role of impartial arbiter and sought, to an impermissible extent, to guide the jury to
aparticular conclusions. The summing-up, in my respectful opinion, lost its balance and favoured the prosecution, principally through the persistent rebuttal of defence arguments.
The following explanation of the criminal trial process by Dawson J in Whitehorn v The Queen[86] is apposite:
"A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at a trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantle of prosecution or defence counsel." (emphasis added)
[86](1983) 152 CLR 657 at 682.
There are two additional matters which are relevant to my conclusion. The first is that defence counsel were not given the opportunity of considering the contents of the proposed summing-up before addressing. Having regard to the form of the summing-up, that put the defence at a disadvantage.
The second relevant consideration is the nature of the trial. Because of the length of the trial and the number of witnesses, it was likely that the jury would tend to have far more dependence on the primary judge's rehearsal of the facts than in the case of a shorter trial with fewer witnesses. I consider it probable that in such circumstances the jury also would have placed more than usual reliance on the judge's expressed or implied views of the facts. The way in which the facts were marshalled, of course, also had the distinct potential, in itself, to influence the jury's determination.
In my view the prosecution case was not weak. The evidence against suicide was reasonably strong. Once suicide was rejected as the cause of death the obvious suspects were Williams and, to a lesser extent, the other appellants. There was no evidence suggesting that any other inmate may have been wholly or partly responsible for the deceased's death. The evidence revealed that the deceased had a pleasing manner and disposition and was either liked or not disliked by other inmates. There was a large body of reasonably consistent evidence given by 10 Block prisoners and others which linked the appellants to the killing. The circumstances of the deceased's death, including the location of blood stains, provided ample evidence of an intention to kill.
The principal weaknesses in the prosecution case were: the original conclusion by the authorities that the deceased had taken his own life; the delay in properly investigating the killing and in taking statements and the manifest deficiencies in the evidence of critical inmate witnesses. Virtually all such witnesses had convictions for offences of dishonesty; most had given prior inconsistent statements or evidence; some made important concessions in cross-examination; it was possible that some had significant memory deficiencies and some had good reason to cooperate with the authorities. However, many of the critical inconsistencies in the evidence of such witnesses were capable of being explained by their reluctance, for reasons of self-preservation or prison culture, to give evidence against another inmate whilst they were inmates themselves. In my view it was open to the jury to have reached either a verdict of guilty or not guilty and for that reason it is appropriate that a retrial be ordered.
Conclusion
In view of the foregoing it is unnecessary for me to consider any other grounds of appeal.
DOUGLAS J: I respectfully agree with the President’s necessarily extensive and very helpful analysis of the evidence and the legal issues in this case and with the orders she proposes to make. I also agree with Muir JA’s reasons for concluding that the summing up lacked the appropriate degree of balance and that there should be a new trial.
All that I wish to add is in respect of the President’s observations at [324] about the desirability, at least in lengthy and difficult cases such as this, of the preparation of a draft summing up and the invitation to make submissions about it. Not only does it help avoid appellable error but it should assist the jury by avoiding the need for re-directions on issues that should have been dealt with initially.
It seems to me to be desirable to try to avoid having to bring the jury back into the courtroom some time after the intended conclusion of the summing up to correct or amplify aspects of it. Correction or amplification out of context, especially in a lengthy case, may confuse the jury or wrongly emphasise the importance of issues that should have been the subject of proper directions to begin with, in the appropriate context.
(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.
(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.
(3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses." (my emphasis)
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