R v Lovelock

[1999] QCA 501

SUPREME COURT OF QUEENSLAND

CITATION:	R v Lovelock [1999] QCA 501
PARTIES:	R v LOVELOCK, Edward Richard (Appellant)
FILE NO/S:	CA No 167 of 1999 SC No 18 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING  COURT:	Supreme Court at Rockhampton
DELIVERED ON:	3 December 1999
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 1999
JUDGES:	Pincus and Thomas JJA and Helman J Separate reasons for judgment of each member of the Court, concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS
Murder – indemnified witness – whether warnings adequate – degree of emphasis required from trial judge – relevant factors
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – VOIR DIRE – calling of witness not called at committal – whether voir dire necessary to enable cross examination to occur
COUNSEL:	Mr J Hunter for the appellant

1. PINCUS JA: I have read the reasons of Thomas JA and agree with them.

2. If I had been of the view that there was a significant error in the judge's directions to the jury, of the kind contended for by the appellant, I would not have been in favour of setting aside the conviction. The overwhelming strength of the Crown case was not diminished by the evidence which the appellant gave; there was absolutely no reason to doubt that it was the appellant who killed Nauta.

3. I agree that the appeal should be dismissed.

4. THOMAS JA: The appellant appeals against his conviction of murder.

5. The prosecution case was that the appellant stabbed William Nauta after an argument at the appellant's property "Twin Dams". The deceased, mortally wounded, drove to a caravan park at Sapphire where he made dying declarations naming the appellant as his assailant. After the incident at "Twin Dams" the appellant and his girlfriend Alison Macintyre left the area and over the next few days walked over 50 kilometres through the bush.

6. The Crown witnesses included two persons who had been present when the stabbing occurred namely Ms Macintyre and Mr Steven Braid. Neither Ms Macintyre nor Mr Braid saw exactly what happened but their evidence of the circumstances and of statements by the appellant is highly relevant. The Crown case also included incriminating admissions made by the appellant to two other people.

7. The principal grounds of appeal relate to the evidence that was given by Ms Macintyre. Firstly it is alleged that the learned trial judge erred in failing to order a voir dire in order to test the admissibility of Ms Macintyre's evidence. The basis of this complaint is that her statement was not available at the time of committal and that defence counsel had therefore not had the opportunity of cross-examining her before trial.

8. Secondly it is alleged that the learned judge failed to give appropriate warnings in relation to Ms Macintyre's evidence. It was submitted that the learned trial judge's directions made no real distinction between her evidence and that of independent witnesses such as those who heard the dying declarations at Sapphire.

9. It is not necessary to set out the evidence at length. It is fairly summarised in a lengthy outline of submissions on behalf of the appellant. Some statement of the evidence is however necessary.

10. The dying declarations were heard by people who approached the deceased's vehicle after it arrived at Sapphire with its engine loudly revving and the horn sounding. He told the people who arrived that he was dying and asked that his boots be removed and that a ring be given to his son. He then said that "Lovelock" had stabbed him 20 times and that he had come from Twin Dams. The appellant was the only person of that name in the relevant area.

11. The medical evidence showed multiple stab wounds including a 13 cm deep wound in the upper chest that travelled through the lung.

12. The witness Braid, an admitted alcoholic, gave evidence that he was in the company of the appellant at material times, including at Twin Dams at the time of the deceased's visit. When the deceased left to go home the appellant followed him outside. The appellant later came back with blood over his arm saying "I killed the cunt". Braid then heard the deceased's vehicle drive away. The appellant commented "He won't get far he's gurgling". The appellant, Macintyre and the witness Braid then got into the appellant's vehicle and soon afterwards Braid got out and walked home.

13. The witness Ms Macintyre had been living with the appellant at Twin Dams since 1998. She confirmed that the appellant invited the deceased to come to Twin Dams for a few drinks. The appellant expressed some resentment of the deceased, describing him as "an arrogant Dutch bastard" and as "trying to work him for his sapphires". The deceased visited the group on that occasion but brought with him only a small bottle of Southern Comfort. After about half an hour he said he was going. The appellant said "I thought you come over for a few drinks". The deceased replied "Well I did just come over for a few drinks". He then went outside, followed by the appellant. When the appellant returned he told Macintyre "I am not letting this cunt leave like that". She heard an exchange of words between the two men near the deceased's vehicle followed by the deceased screaming in "terror, fear and pain". She heard the deceased say "You have killed me Ted" to which the appellant replied "Fucken oath I've killed you Bill" and "Maybe in the next lifetime you'll think twice before fucking people around". The appellant then called out to Macintyre for assistance. He was carrying a knife and had blood "all over him". He said "Alison help me I've killed him". He showed the blade of his knife to his dogs telling them that the blood on it was "people's", that "Bossy had cut his throat" and that "Bossy had killed the bastard". There was then a discussion about what to do with the body in the course of which they heard the deceased's vehicle start and drive away. The appellant said that he could not believe that the deceased had driven away because he had cut the deceased's throat and that he was making a gurgling noise. There was further evidence from Macintyre of brushing out the deceased's vehicle's tracks on the instructions of the appellant, followed by their departure into the bush. After three days walking they arrived at the home of Jocelyn Weir at Bogantungan. On the way various items of property including the appellant's knife were hidden. Later Macintyre was able to show these items to the police. Mrs Weir told the appellant that she had been informed that Mr Nauta had died and that he had been stabbed "13 or 17 times". The appellant denied this saying that he had only done it "three times".

14. Ms Macintyre did not give any statement to the police until two weeks before the commencement of the trial. Prior to that she had told the police that she knew nothing about what had happened. She was granted an indemnity against prosecution in respect of her evidence.

15. The appellant gave evidence in his own defence stating that the deceased had asked him to grow cannabis and that he had refused to do so. The deceased had been aggressive towards the appellant who had refused him permission to fish or shoot on the appellant's property. He described the occasion when the parties were drinking together. When the deceased was attempting to leave in his car the appellant asked him what he was doing. The deceased then punched him in the forehead, produced a knife and started to slash at him with it. The deceased drove away screaming threats. There is no explanation as to how the deceased sustained his injuries. It ends with the appellant panicking and fleeing into the bush.

    Absence of Voir Dire

16. It is not apparent that there was any significant disadvantage to the appellant from the absence of a voir dire. No valid grounds were foreshadowed upon which Ms Macintyre's evidence could have been excluded. The only basis of objection now relied upon would seem to be the loss of a "trial run" of cross-examination. Sometimes it is appropriate to permit this when a late witness emerges, but there is no general rule that it is necessary. Such an issue is one which is very much within the control of the trial judge[1]. The learned trial judge was fully cognisant of the need to consider the reasonable needs of the defence, observing that "in some instances counsel would be at a disadvantage … however here the statement is very full and there are a number of indications why the statement was obtained late". His Honour added that "there does not seem to be any traps into which counsel might walk because of being disadvantaged through not having cross-examined the witness at committal". I respectfully agree.

    [1]            R v Drozd (1993) 67 A Crim R 112, 113 per Macrossan CJ. Compare R v Rowley (1986) 23 A Crim R 371 at 379-380 per Beach J.

    Warnings concerning evidence of Ms Macintyre and Mr Braid

17. His Honour correctly regarded Ms Macintyre as a witness in respect of whom a warning should be given, notwithstanding the removal of s 632 of the Code of any statutory necessity to do so. His Honour's instructions to the jury concerning her evidence included the following:

    "… she initially said she had gone to sleep and knew nothing but then having received what has been called an indemnity from the Attorney-General, she has come along and given you a very full account that clearly implicates the accused in the crime with which he is alleged (sic).

    Now it is most important you assess her evidence very carefully. She doesn't just come along to you as an eyewitness who never wanted to be involved but who saw something and tells you about it. She is a person who helps, on her own evidence, clean up after the offence. She then runs off with the man she says has committed the crime. So you need to asses her evidence very carefully because of her initial statement which she now recognises as a lie and with her close involvement with the accused.

    I would remind you that the Attorney-General's indemnity includes the words that she won't be prosecuted for any offence that she may admit here other than proceedings in respect of the falsity of any evidence she gave to you. So if she lied to you, she could be prosecuted for perjury and that is a restraint upon her that certainly wasn't there when she first spoke to the police. So that is something to keep in mind when you are assessing her evidence.

    Now here where you have no direct evidence of an eyewitness as to the stabbing and slashing of Bill Nauta, you need to bring together all of the evidence carefully. So that you need to assess which evidence you rely on, which evidence you accept and that involves a very careful scrutiny of the witnesses who were involved on the 29th of September. Those at the Blue Gem Caravan Park and Macintyre and Braid who say they were at Twin Dams when the incident occurred".

18. The question arises whether these warnings were adequate in the circumstances of the case. Mr Hunter for the appellant submitted that a direction was necessary which ensured an appreciation on the part of the jury that Macintyre's evidence was to be approached with particular caution. He submitted that the directions made no real distinction between her evidence and that of some independent witnesses. Points which he submitted should have been emphasised included her liability as an accessory after the fact to murder, her initial denial of knowledge of what had occurred, her receipt of an indemnity against prosecution, her inducement to ingratiate herself with the prosecution, and inconsistency between her alleged fear of the appellant and the nature of her correspondence with him whilst he was on remand.

19. The position would seem to have been that the police had no evidence of any offence having been committed by Ms Macintyre and it was only the statement which she gave when she came forward some 10 days after the event that revealed her involvement in some of the covering up activities such as assisting in the disposal of the knife and in concealment of the deceased's vehicle's tracks. Ms Macintyre however conceded that she was concerned that the police were not sympathetic towards her and that they would possibly charge her for something. She went to a solicitor who advised her that it was possible that she might be granted an indemnity from prosecution if she provided a statement. An indemnity was in due course given in relation to any information she gave in her statement and any evidence she might give in criminal proceedings against the appellant on the present charge. The indemnity was to the effect that her own statements would not be used in evidence against her in any subsequent proceedings. She agreed that the grant of the indemnity made her feel safer in giving the statement.

20. Dealing with the points raised by Mr Hunter, it is true that his Honour did not tell the jury that the information provided by her made her an accessory after the fact to murder. However the existence and nature of the indemnity was extensively canvassed, as was her relationship with the appellant and her activity subsequent to the incident. The legal designation of the offence with which she might otherwise have been charged was not a matter of particular importance requiring specific direction. The second matter mentioned by Mr Hunter – her initial denial to the police of relevant knowledge – was adequately mentioned by his Honour as was the third matter – the fact that she had received an indemnity against prosecution. The question of the extent to which Ms Macintyre was in a position where she would personally benefit by going to the police and giving such a statement in exchange for an indemnity is arguable. Her position was quite unlike the typical accomplice case where that person has participated in the original crime and then seeks to obtain an advantage by directing responsibility to some other person. There is no suggestion whatsoever in the present matter of any involvement on the part of Ms Macintyre in the original crime. While it would have been preferable for the learned trial judge to have mentioned the possible existence of motivation on her part to ingratiate herself with the prosecution, I do not think that its omission can be regarded as a legal error in the present circumstances. So far as the fifth point is concerned, the effect of her correspondence with the appellant whilst he was on remand was a matter canvassed in cross-examination. Whilst of potential relevance on the question of credit, it is not a particularly telling point and I do not consider that the learned trial judge was bound to give it judicial imprimatur in the course of the summing-up.

21. The degree of emphasis which is required from a trial judge concerning the caution with which a jury should approach the evidence of indemnified witnesses varies considerably according to the particular case. The present case was not one where Ms Macintyre had an interest in minimising her own role or in building up that of someone else. Hers is not a case raising unease on the score that a false story may have been told in order to secure an advantage. This is not a case like those where the witness receives an obvious advantage (such as a lesser sentence) by seeking and obtaining an indemnity. Neither is it a case where extra concern needs to be expressed to the jury because her evidence was the sole and uncorroborated evidence that would convict the accused person. There was a wealth of other evidence corroborative of hers and independently establishing the guilt of the appellant. Neither is it a case where animosity can be seriously suggested on the part of the witness towards the accused.

22. In all the circumstances I do not consider that any error is disclosed through any lack of emphasis or warning concerning acceptance of Ms Macintyre's evidence. Mr Hunter submitted that the last three sentences of the passage quoted above from the summing-up diluted the warning and was tantamount to a direction to treat Ms Macintyre's evidence in the same way as the other witnesses in the case. However when the passage is read in its context it would seem to be advice to the jury, following warnings in relation to Ms Macintyre's evidence, to look at the evidence as a whole and to remind them of the need for careful scrutiny of the four major witnesses namely Ms Macintyre, Mr Braid and the persons to whom the dying declarations were made.

23. Finally it is to be noted that no request was made for any further direction by the learned trial judge in any of the respects now argued.

24. It seems to me that the appellant has no valid ground for complaint in relation to the conduct of the trial or the summing-up. It is hardly necessary to make further reference to the exceptional strength of the Crown case. I would dismiss the appeal.

25. HELMAN J: I have had the advantage of reading the reasons prepared by Thomas JA and I agree with them. I agree that the appeal should be dismissed.