R v Matthews & Burgess - [2005] SASC 289

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MATTHEWS & BURGESS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Layton)
29 July 2005
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES - WHO ARE ACCOMPLICES
Appeal by appellants against convictions for murder - whether intermediary approached by one of the appellants to hire killer was an accomplice - whether jury sufficiently instructed to decide issue of accomplice vel non.
Trial judge directing jury that another witness was an accomplice - whether direction unfair as suggesting that appellant guilty of offence.
Whether various items of evidence capable of amounting to corroboration of accomplice.
Davies v DPP [1954] AC 378; Doney v The Queen (1990) 171 CLR 207; R v Tadic & Gibb (Supreme Court of Victoria, Appeal Division Court of Criminal Appeal, BC 9300826), applied.
R v Winters (1995) 184 LSJS 266, distinguished.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Appellants jointly tried - whether separate trials required in interests of fairness - whether injustice caused by joint trial.
R v Collie (1991) 56 SASR 302, applied.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - ALTERNATIVE VERDICTS
Whether alternative verdict of guilty of manslaughter should have been left to the jury - whether alternative verdict of impeding the investigation of an offence or assisting a principal offender contrary to Criminal Law Consolidation Act 1935 s 241(1) should have been left to the jury.
Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 78 ALJR 64, discussed.

EVIDENCE - WITNESSES - CORROBORATION - ADMISSIONS - CONDUCT - OTHER CONDUCT
Evidence of alleged collusion led by prosecution as circumstantial evidence arising from post-offence conduct - whether Edwards direction as to lies indicating consciousness of guilt required.

R v MATTHEWS & BURGESS
[2005] SASC 289
Court of Criminal Appeal: Duggan, Debelle and Layton JJ

DUGGAN J. The appellants have appealed against conviction on a charge of murder. The information on which they were presented for trial alleged that on 12 July 2001 at West Lakes they murdered Carolyn Wendy Matthews.
Ms Matthews was the wife of the appellant Matthews. At the time of her death they lived at 5 Nambucca Avenue, West Lakes with their three sons aged 16, 13 and 12. Ms Matthews was stabbed to death in the family home early on the evening of 12 July. She suffered multiple stab wounds.
According to the prosecution case the appellants had been having an affair for some months prior to the stabbing. It was alleged that they conspired together to kill Ms Matthews. A man named David Key was hired to carry out the killing.
Key admitted murdering Ms Matthews. He pleaded guilty to the murder and was sentenced before the trial of the appellants. He gave evidence for the prosecution at the trial. He said that he went to the house at West Lakes with Burgess. Ms Matthews was alone in the house. According to Key’s evidence, Burgess punched Ms Matthews in the face when she came to the door and pushed her into the house. Ms Matthews was then taken to the kitchen where Burgess obtained a knife. She gave the knife to Key and urged him to kill Ms Matthews. Key stabbed the victim seven times in the chest and once in the back. Burgess and Key then left the house.
Shortly before the killing, the appellant Matthews picked up his three sons from the house and took them to a video hire outlet. It was alleged that he did so in the knowledge that his wife was about to be killed and in order to remove them from the house while the killing took place. When he took the children back to the home they found their mother’s body on the kitchen floor.
Shortly after the alleged offence, the appellants were placed under police surveillance. The prosecution argued that the evidence obtained as a result of the surveillance showed that the appellants continued their affair after the death of Ms Matthews. It was also alleged that the conversations indicated that the appellants were planning an alibi for Burgess.
When questioned by the police the appellants denied that they were involved in the killing of Ms Matthews. They also denied they were having an affair. Burgess said that she had been with Key earlier in the day, but that she was with an acquaintance by the name of Jason Colenso at the time of the offence. She said she did not go to the Matthews’ home on that day. Neither appellant gave evidence at the trial.
As part of the case against Burgess, the prosecution alleged that she approached a friend, Kathleen Cowled, and asked if she knew anyone who could “get rid of” Ms Matthews and Darren Burgess, the husband of Ms Burgess. Mrs Cowled is the sister of David Key and she gave evidence that she spoke to him about the matter. She then put him in touch with Burgess. She said she was present at a conversation between Key and Burgess when Key stated that it would require $50,000 to kill Mr Burgess and Ms Matthews.
The prosecution alleged that no decision had been made as to when Ms Matthews was to be killed until the day of the alleged murder. Evidence was led to the effect that Key and Burgess drove to Matthews’ place of employment shortly after 5.00 pm on 12 July. Matthews was the manager of a Beaurepaires tyre outlet situated on Commercial Road, Port Adelaide. Key gave evidence that he stayed outside while Burgess went in and spoke to Matthews. She then beckoned Key to come into the office area. Key said “What’s going on?” and, according to Key, Burgess said “It’s got to be done tonight”. Key said “What about the kids?” and Burgess said “Kevin’s (Matthews) going to take them to the video store”. Key asked Matthews if he could make a telephone call and Matthews provided a telephone for him. It was alleged that, at about the same time as Key made his telephone call, Matthews rang his home and arranged to collect the children in order to take them to the video store. According to the prosecution case, Matthews was in a position to hear the above conversation between Burgess and Key. Matthews’ counsel challenged the sequence of events during the visit to Beaurepaires as described by Key and reference will be made to this aspect at a later stage in these reasons.
The appeal by Burgess
Ground 2
The prosecution led a considerable body of evidence in order to establish the nature of the relationship between Burgess and Matthews. According to the prosecution case , the relationship commenced in about October 2000. The evidence used to establish its existence included motel bookings, observations of witnesses who knew the appellants, the buying of gifts for Burgess by Matthews and over 3000 telephone calls and SMS messages between the two from October 2000 to 12 July 2001. There was also evidence of the continuation of the relationship after the alleged offence. Apart from evidence of sightings of the two together during this period, the prosecution tendered a 22 page letter written by Matthews to Burgess after they had been arrested for the offence. The letter contains expressions of love and comments of a sexual nature. In summary, the appellant’s were engaged in an intense and passionate affair which explains much of their conduct.
One of the items of evidence under this heading related to an incident which occurred on 22 December 2000 at the Matthews’ home. Mrs Kaylene Kenyon, a friend of Mr and Ms Matthews, gave evidence that she attended a barbecue at the home and that in the course of the evening Mr Matthews received some text messages on his mobile telephone.
Mrs Kenyon said that Matthews spoke about the messages and showed them to people at the barbecue but she herself did not read them. She said he stated that the messages were from a woman and the effect of them was that she was intent on cutting her wrists and needed him. He did not identify the woman but there was other evidence which suggested that Burgess was sending text messages to Matthews at the time of the barbecue.
Mr Cuthbertson QC, for the appellant Burgess, acknowledged that this evidence was admissible against Matthews, but he complained of its use against Burgess. He argued that there was an element of hearsay in the evidence. He acknowledged that the statements were not being used to establish the truth of what was being said in the text messages, but he pointed out that Mrs Kenyon did not read the messages and her knowledge of what they contained came from Matthews.
The prosecution relied on the evidence as indicating that Burgess was dominating and manipulative and that this was relevant to her relationship with Matthews. In her summing-up the judge reminded the jury of the prosecutor’s submissions.
In my view, there is an element of hearsay in the evidence in so far as it relates to the case against Burgess. Mrs Kenyon was giving evidence of what Matthews said as to the content of the text messages. The truth of the content of the messages was not an issue; but the fact that such messages were sent and that they were sent by Burgess had to be proved by evidence admissible against her. The evidence from telephone records did no more than establish that telephone calls were made from the mobile telephone belonging to Burgess to Matthews’ mobile telephone at the relevant time. However, the evidence as to the content of the calls or text messages derived from what Matthews said to those who were present at the barbecue.
In my view the trial judge should have directed the jury that the evidence was admissible against Matthews only. However, there was a considerable body of evidence which threw light on the relationship between the appellants and some of it went towards establishing that Burgess was placing pressure on Matthews. Ms Hutchison gave evidence that in late 2000 Burgess told her that she had given Matthews an ultimatum to leave his wife or she would stop having sex with him. The evidence of the text messages which suggest Burgess might commit suicide if Matthews did not come to see her is far less cogent than other evidence of the intensity of the relationship between Mathews and Burgess and, in my view, it is not evidence which would have contributed in any way to a miscarriage of justice.
Grounds 5 and 6
Ground 5 asserts that the trial judge erred in inviting the jury to draw an inference adverse to the appellant Burgess by reason of the failure of the defence to call an acquaintance Jason Colenso to give evidence.
Ground 6 is expressed as an alternative to ground 5 and complains that the trial judge erred in inviting the jury to consider whether there was some significance in the defence not calling Jason Colenso as he was a close friend of Burgess.
As has been mentioned, the prosecution alleged that Key accompanied Ms Burgess to Beaurepaires on the day of the murder and, after the discussion which took place there, Burgess and Key went to the Matthews’ house. However, Burgess told the police in an interview that the man who was with her at Beaurepaires was Jason Colenso. She also filed an alibi notice pursuant to s 285C(1) of the Criminal Law Consolidation Act 1935 (“the Act”) in which she gave notice of her movements between 5.00 pm and 6.00 pm on the day of the alleged murder. She said that at about 5.00 pm she was travelling from her parents’ house at Holden Hill to the Beaurepaires outlet at Port Adelaide. According to the notice, she was a passenger in a car being driven by Jason Colenso and they arrived at Beaurepaires between 5.15 pm and 5.20 pm. She said she and Colenso left Beaurepaires between 5.25 pm and 5.30 pm and returned to her parents’ home at Holden Hill. She said they arrived there at around 6.15 pm. She denied going to the Matthews’ home at any stage during the day. She said she did not know the whereabouts of Jason Colenso and had asked her legal representatives to try and locate him. The prosecution tendered the notice at the trial.
On 25 September 2003 Jason Colenso came into the court during the trial and sat in the public gallery. He was later charged with contempt of court for signalling to the appellant Burgess. The jury were present in the court at the time.
The trial judge warned the jury that Colenso’s behaviour should not be taken as reflecting adversely on Burgess. It was recorded as an agreed fact during the trial that, between the filing of the alibi notice and 25 September 2003, Burgess’ solicitors had been attempting to interview Colenso but he had indicated an unwillingness to give evidence.
When directing the jury on the possibility of Ms Burgess having an alibi for the time of the alleged offence her Honour said:
Of course, we have not heard from Jason Colenso about these matters which, as Mr Millsteed suggested, was rather surprising, given that he does appear to be a close friend of Michelle Burgess.
Mr Barrett suggested to you, however, that you might well think, from what you have heard about him in this trial, that he is just as erratic and as unreliable as David Key and his absence might, therefore, be quite understandable.
Ladies and gentlemen, whatever may be the explanation for Colenso’s absence, I need to make it clear to you that he has not given evidence and, therefore, you must not speculate about what he might have said, if he, in fact, had given evidence.
In his final address the prosecutor said:
It was further agreed that between the filing of the alibi notice in which Mr Colenso was specified as being an alibi witness, and the other day when the agreed facts were read out, that the lawyers for Ms Burgess had attempted to interview Mr Colenso but he indicated an unwillingness to give evidence. My final observation is this: why would he be unwilling to give evidence on behalf of a woman who he was telling, in 2001, that he loved? Why would he be unwilling to give evidence, knowing that she was standing trial for a grave charge of murder and he could provide her with an alibi for her movements? I say no more about Mr Colenso’s absence than that.
The remarks made by the prosecutor are somewhat cryptic, but Mr Cuthbertson submitted that they would have been perceived by the jury as an invitation to speculate on what evidence Colenso might have given and why he might have been unwilling to give it.
If that is so, then the matter was remedied by the trial judge’s direction to the jury that they were not to speculate about what Colenso might have said if he had given evidence. Read in context, the two paragraphs immediately preceding this direction in the passage set out above are no more than summaries of the submissions of both counsel.
Counsel for Burgess referred us to Dyers v The Queen (2002) 210 CLR 285. In that case Gaudron and Hayne JJ at [5] pointed out that, as a general rule, a trial judge should not direct the jury that an accused would be expected to give or call evidence; nor is it appropriate, generally speaking, to suggest to the jury that evidence would not assist the accused. However, the risks attached to such directions were not present in this case by reason of the trial judge’s clear direction that the jury were not to speculate on what Colenso might have said if he had been called to give evidence.
In my view the jury would not have reasoned in an impermissible manner following upon the directions on this issue.
Ground 12
Leave to appeal on this ground was refused by a single judge, but the appellant Burgess has requested that the application for the grant of leave be referred to this court.
Reference has been made to Ms Cowled’s evidence that Burgess approached her and asked if she knew anyone who could get rid of Ms Matthews and that she spoke to Key, her brother, about this request. Key said that, after agreeing to become involved he was given a document which contained personal details relating to Ms Matthews, including a photograph. Key said he destroyed the document some time after the killing of Ms Matthews.
He said that he was also given to understand that Burgess wanted her husband Darren Burgess killed as well. He gave evidence that, shortly after being given the document relating to Ms Matthews, he was given another document containing personal details and a photograph of Darren Burgess. A copy of that document was tendered in evidence.
Key said that when he first met Burgess they spoke about the documents he had been given and a discussion ensued as to how much it was going to cost to carry out both killings. According to Key, he told Burgess that it would cost $50,000 for both murders and Burgess said “Money’s not a problem”. Key said Burgess told him in a later conversation why she wanted her husband dead. Ms Cowled said that Burgess also gave her an envelope to give to Key. The envelope had printed on it “Look like accidents (both) – alone, one done this week (by Friday’s) one next week”.
The trial judge reminded the jury that Burgess had not been charged with any offence in relation to her husband but that the evidence relating to him was a relevant piece of circumstantial evidence.
In ground 12 the appellant complains that the trial judge erred in failing to warn the jury that they could not use the fact that the appellant wished to have Darren Burgess killed as evidence that the appellant was of bad character and, therefore, more likely to be a party to the killing of Ms Matthews.
The evidence that Burgess had raised the question of her husband being killed in the course of the discussions about killing Ms Matthews was clearly relevant to proving the charge of murdering Ms Matthews. The reference in the writing on the envelope to making both killings look like accidents a week apart along with the agreement that both would be killed for $50,000 are circumstances which demonstrate that the arrangements for the killings as alleged by the prosecution were inextricably linked. The reason why the jury heard of the references to the killing of Mr Burgess would have been readily apparent to the jurors and the trial judge correctly instructed the jury that they were to consider the evidence relating to Mr Burgess as a relevant piece of circumstantial evidence.
As the references to both killings were intertwined, it is difficult to imagine the jury using the references to the killing of Mr Burgess as propensity reasoning applicable to the case in relation to Ms Matthews. The real issue was whether or not plans had been made which incorporated attempts to kill both people. However, the trial judge addressed what danger there might have been of propensity reasoning by giving the following direction:
If, however, you were to conclude that Michelle Burgess had some degree of hostility towards her husband and some intention with respect to him, it does not follow as a matter of course that she had the same degree of ill will or intention with respect to Ms Matthews.
In my view there was no risk that the evidence relating to Mr Burgess could have been misused by the jury.
I would refuse leave to appeal on this ground.
Ground 13
According to the complaint in ground 13 the trial judge failed to direct the jury as to the circumstances in which Kathleen Cowled could be regarded by them as an accomplice.
The trial judge gave accomplice directions to the jury in relation to the witnesses Key and Cowled. In the course of those directions she said:
And that brings me to a very important matter. As I said earlier, Key on his own evidence is an accomplice with the accused in the commission of the crime committed by him. An accomplice is a person who was a participant either alone or with others in the crime that was committed. I must, therefore, give you a warning about the evidence given by Key and also the evidence of Kathleen Cowled if you consider as a reasonable possibility that she too was an accomplice, as being a person who deliberately or knowingly assisted with the plan before the crime was committed.
If, however, you reach the conclusion that Kathleen Cowled was not an accomplice, that is, that she had nothing to do with Carolyn Matthews’ murder in any way, you can put this matter to one side with respect to her. That is a conclusion you must reach beyond reasonable doubt. If you conclude that there is a reasonable possibility that she is an accomplice you must heed the warning I now give you with respect to the evidence of accomplices.

Her Honour then went on to explain the purpose for the warning in relation to accomplices and continued:
Furthermore, even if you do find that there is corroboration, it will still be necessary for you to examine the evidence of both Kathleen Cowled and David Key with great care, bearing in mind the warning that I have just given you, and not convict unless you are satisfied beyond reasonable doubt as to the guilt of the accused.
After reminding the jury that Ms Cowled had been given immunity from prosecution the trial judge said:
It might have occurred to you that in order to get an immunity, a person might create a story which is acceptable to the authorities. I do not suggest that is what has happened in this case, but that is a matter which you have to consider when you look at the total effect of an immunity.
It is for you to say what is the significance of the immunity. Does it cause you to doubt the evidence of Kathleen Cowled? Has she given false evidence to improve her position with the police or so that she would not be charged with any offence arising out of her own activities? Is that a reasonable possibility? If that is so, you must not act on her evidence adversely to the accused.
. . .
It is appropriate, nonetheless, that you be aware of the circumstances in which Kathleen Cowled gave her evidence and you should also bear in mind the warning that I have given you about the dangers of acting upon her evidence in the absence of corroboration. You will remember the terms of the immunity and the relationship of that to her.
It was argued on appeal that the directions concerning Ms Cowled did not adequately convey to the jury what was required in order to support a finding that she was an accomplice. Ms Cowled’s role in the matter has been referred to earlier in these reasons. She and the appellant Burgess met at the school which their children attended. They became friends. Ms Cowled said that Burgess told her she was having an affair with a man named Kevin. She also said that Kevin’s wife Carolyn had found out about the affair and that things had “got ugly”. According to Ms Cowled’s evidence, Burgess said she wanted Carolyn to leave her alone and that she “wanted her six foot underground”.
Ms Cowled said in evidence that Burgess asked her if she knew anybody who could get rid of Ms Matthews. It was then that Ms Cowled contacted her brother David Key. Ms Cowled arranged a meeting between Burgess and Key. According to the prosecution case, the meeting took place two days after Ms Cowled contacted her brother. At the meeting which was attended by Ms Cowled, Key and Burgess, Key said he was willing to be involved. He said it would cost $25,000 for each person. On a later occasion Ms Cowled gave Key’s telephone number to Burgess. Ms Cowled said she also delivered the documents containing the personal details of Mr Burgess and Ms Matthews to her brother.
Section 267 of the Act provides:
A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.
It was held in Giorgianni v The Queen (1985) 156 CLR 473 at 505 that aiding, abetting, counselling or procuring an offence “requires the intentional assistance or encouragement of the doing of those things which go to make up the offence”. In the same case Mason J at 492 pointed out that the terms “counsel” or “procure” generally refer to conduct prior to the offence by one who is absent at the time the offence was committed.
The directions on Ms Cowled’s role were given against the background of the evidence of the dealings between her, Burgess and Key which I have summarised. The evidence was of particular importance in the case against Burgess and was the subject of extensive comment in the addresses of counsel and the summing-up of the trial judge, albeit not in the context of Cowled being an accomplice. There could not have been any doubt in the minds of the jury as to the factual basis which might lead to a finding that Ms Cowled was an accomplice.
In her directions the trial judge explained that Ms Cowled would be an accomplice if she “deliberately or knowingly assisted with the plan before the crime was committed”. More might have been said, but this direction conveyed the essential elements of knowledge and assistance. In my view the direction was sufficient, given the jury’s familiarity with the evidence upon which the decision as to whether Ms Cowled was an accomplice had to be made.
Ground 14
Ground 14 states that the trial judge erred in directing the jury that the copy of the document containing personal details of Darren Burgess (“the Darren Burgess document”) was capable of amounting to corroboration.
Reference has been made to this document and the document which set out in a similar format the personal details of Ms Matthews (“the Carolyn Matthews document”). According to Ms Cowled’s evidence, she was given the documents by Ms Burgess two or three days apart. She said she gave each of them to Key.
Again it is relevant to note that these events were closely linked. The discussions with Burgess had been about two killings and the quoted amount of $50,000 was in respect of both. There was evidence that the Darren Burgess document was in the handwriting of Burgess. In the light of the evidence of the meetings at which both killings were discussed and the evidence that the eventual plan involved the two killings, the proved existence of one of the documents was independent evidence tending to establish that Burgess took part in the murder of Ms Matthews. In my view the trial judge was correct in directing the jury that the evidence was capable of amounting to corroboration.
Ground 16
This ground raises a challenge to a further item of evidence left to the jury as being capable of amounting to corroboration in the case against Burgess.
Key said he was the man with Burgess when she went to see Matthews at Beaurepaires. In an interview with the police, Burgess said she went there with Colenso and this claim was repeated in her alibi notice. She said they arrived at Beaurepaires between 5.15 pm and 5.20 pm and left between 5.25 pm and 5.30 pm.
Optus records disclose that there was a call to Mr Colenso’s mobile telephone at 4.38 pm and another at 5.49 pm. The first call lasted one minute and five seconds. The second call lasted for 14 minutes and 56 seconds.
According to the evidence, the calls were transmitted through radio base stations in the Elizabeth South and Elizabeth West sectors of the network respectively. This enabled the telephone to be placed in certain areas in the Elizabeth area at the times the calls were made. These locations were quite inconsistent with Colenso being at the locations identified by Burgess in her statements.
The second call was made from a telephone landline installed in a house in a Brisbane suburb. The house is occupied by Colenso’s cousin, Mr McMahon, and his partner.
Mr McMahon gave evidence that he had Colenso’s mobile telephone number and the witness said he would speak to Colenso on the telephone from time to time. He could not remember this particular telephone call but he said if he did make the call he would not have spoken to anyone except Colenso.
The trial judge directed the jury that the evidence of the telephone calls was capable of amounting to corroboration.
The appellant’s argument to the contrary was that the only way in which the evidence could have amounted to corroboration was if it established a lie which demonstrated consciousness of guilt. However, the corroborative aspect left to the jury by the trial judge was that the evidence tended to establish that it was Key who was at Beaurepaires and not Colenso. The appellant Burgess stated in her interview that she was driving around for most of the day with Key. She told the police that Key was her boyfriend and that he had been staying at her home for three or four weeks before the day of the alleged offence. She said she parted company with Key during the afternoon and went with Colenso to Beaurepaires to enquire about the purchase of tyres.
If other evidence tended to establish that Colenso was not with Burgess at the time of the visit to Beaurepaires, it also tended to establish that Key was the man who was with her during the visit. She did not suggest she had gone there with anyone else.
The relevance of the telephone calls was not that they helped establish a lie told out of a consciousness of guilt. Rather, they provided some corroboration for Key’s evidence that it was he and not Colenso who went to Beaurepaires with Burgess.
In my view the evidence was capable of amounting to corroboration.
Grounds 7, 8, 9 and 17
On 3 August 2001 the police intercepted a telephone conversation between Burgess and her father Mr Goldup. I have referred to the fact that Burgess said she went to her parents’ home at Holden Hill on 12 July. In her alibi notice she said she arrived there at around 6.15 pm.
During the telephone conversation with her father it is alleged that the following was said:
MR GOLDUP:             I, I tell you what puzzles me.
MS BURGESS:            (Coughing)
MR GOLDUP:             And I keep going back to it. That night you flew back to our place at about seven o’clock while we were waiting for you, you wouldn’t let me see who was in the car and you took off like rocket with the kids, that concerned me. Cause I know how long it takes to get from A to B and that concerned me. Alright.
MS BURGESS:            Yeah.
MR GOLDUP:             So that I’m letting you know what I think so, all you’ve got to do is get your name out of this.
Mr Goldup was called by the appellant Burgess to give evidence. He said that his daughter had arrived at the house at 6.30 pm and not 7.00 pm. He was cross-examined about his statement over the telephone that she arrived at about 7.00 o’clock. He said that this time was in his mind because that was the time he arrived at Tea Tree Gully to do some shopping after he had spoken to his daughter at his house.
The time at which Burgess arrived at her parents’ house was of some significance. As Her Honour pointed out to the jury, if she arrived there by about 6.30 pm, she could not have been at the scene of the killing as there would not have been enough time to get to where her parents lived.
In her summing-up, the trial judge listed the items of evidence capable of amounting to corroboration of Key’s evidence. She identified one of the items as “the telephone intercept conversation which is No. 25, between Burgess and her father, Mr Goldup, which (sic) Mr Goldup refers to the fact that Burgess did not come home until 7.00 pm”.
Mr Cuthbertson complains that the trial judge erred in leaving this part of the conversation to the jury as corroboration and in failing to direct the jury that the reference by Mr Goldup in the conversation to the time of his daughter’s arrival was hearsay and could not be used as evidence of the fact unless adopted by Burgess.
Although Burgess replied “Yeah” to her father’s statement, it contained a number of assertions. Furthermore, although Mr Goldup’s assertion in the conversation as to his daughter’s time of arrival was relevant in proving a previous inconsistent statement by him it could not be used to establish the truth of the statement.
In the earlier part of this telephone conversation Burgess was being responsive to her father’s statements. However, the trial judge’s direction should have included instruction as to the basis upon which the evidence could be used to prove the relevant time. The evidence could not have been used as corroboration unless Mr Goldup’s assertion as to the time was adopted in some way by his daughter. It should have been pointed out to the jury that there was more than one proposition in the statement made by Mr Goldup and it was important to have regard to equivocality which might have been inherent in the appellant’s response. The evidence was capable of amounting to corroboration, but the jury were not instructed that this could only be so if they were satisfied that Burgess assented to that part of the conversation which referred to the time of her arrival.
I have considered the possible effect of leaving this incident to the jury as evidence against the appellant Burgess and further, as capable of amounting to corroboration, without further direction on the circumstances in which the evidence could be used against the appellant.
There was ample evidence capable of amounting to corroboration in the case against Burgess. Furthermore, the case against her was quite strong. I have reached the view that the failure to provide more complete directions could not reasonably be supposed to have influenced the result: Stokes v The Queen (1960) 105 CLR 279 at 284; Conway v The Queen (2002) 209 CLR 203 at [32].
It is convenient at this point to deal with ground 17 which complains of the failure of the trial judge to direct the jury as to the proper use of an intercepted telephone conversation between Burgess and her father which took place on 2 August 2001.
In the conversation Mr Goldup criticised Burgess for driving around with Key and Colenso on the day of the stabbing. The conversation continued:
MS BURGESS:            What? We weren’t doing anything wrong.
MR GOLDUP:             No but you dump the, dump the kids on mum and when you come and I ask you a simple question and the other night about it and you said oh just a friend but it’s the way you took off that Thursday night that I, I have these horrible bloody thoughts in my mind.
MS BURGESS:            Yeah well I hey, we didn’t do anything wrong we were nowhere near there.
In his final address the prosecutor said in relation to this passage in the conversation:
Ask yourselves why did Mr Goldup say ‘No, you dump the kids on Mum’? as Mrs Goldup claims if there had been an arrangement to look after the children that afternoon, if she just hadn’t bowled up as Mr Key suggests, why would Mr Goldup have the impression that the children had been dumped with his wife that day?
Again it was argued that the statement of Mr Goldup was being used to establish the truth of what he said in the conversation without any instruction to the jury as to how it could be so used.
The trial judge referred to this part of the conversation in her summing-up but only in the context of discussing Mr Goldup’s evidence. She referred to his explanation as to why he used the phrase “dump the kids”. She did not suggest any impermissible use of the evidence to the jury and in my view there is no risk that the prosecutor’s brief comment caused the jury to use the evidence in an inappropriate way.
Ground 10
I have said that police surveillance of Matthews and Burgess took place after the killings. On 24 July 2001 the appellants were observed by two police officers in a hotel bar. Burgess was crying and the police officers overheard Matthews say:
You know you’re going to go down for it; too many people know about it.
There was no evidence which established that Burgess adopted this statement by silence or otherwise and Mr Cuthbertson argued that the statement was inadmissible against his client. Defence counsel at the trial argued that Matthews may have been referring to other circumstances and not those relating to the killing. However that may be, I am of the view that the evidence of this remark was not admissible against Burgess.
We were referred to the prosecutor’s comments on this incident in his final address, but I do not think they could be interpreted as suggesting that the evidence was admissible against Burgess. The trial judge did not suggest to the jury that the evidence could be used in the case against Burgess unless they were satisfied that she adopted it in some way. However, as no suggestion had been made that the comment or her reaction implicated her, such a direction was not essential. In my view there is no risk that the jury misused the evidence by applying it to the case against Burgess.
Grounds 4 and 18
Ground 4 complains that the trial judge erred in not leaving to the jury the alternative verdict of impeding the investigation of an offence or assisting a principal offender to escape apprehension or prosecution.
Section 241(1) of the Act provides as follows:
(1)Subject to subsection (2), a person (‘the accessory’) who, knowing or believing that another person (‘the principal offender’) has committed an offence, does an act with the intention of –
(a)impeding investigation of the offence; or
(b)assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence,
is guilty of an offence.
Section 241(5) provides:
Where –
(a)a person charged with an offence as a principal offender is found not guilty of the offence charged; but
(b)the court is satisfied that another person was guilty of the offence charged (or some other offence of which the accused might on the charge be found guilty),
the court may, if satisfied that the accused is guilty of an offence against subsection (1) as an accessory in relation to the offence charged (or that other offence), find the accused guilty of an offence against subsection (1).
The factual basis suggested for the alternative verdict was that, in telephone calls monitored by the police after the killing, Burgess stated that Key was nowhere near the scene at the time of the offence. She mentioned this in telephone conversations with Matthews and Key himself. There was a suggestion by the prosecution that the appellants were aware that the police were monitoring their telephone conversations and that these comments may have been intended to divert interest away from Key. The alternative explanation put forward by Mr Cuthbertson was that it may have been an attempt to assist Key by suggesting a story which he might adopt.
Mr Cuthbertson relied upon Gilbert v The Queen (2000) 201 CLR 414, a case in which the appellant was found guilty of murder but the High Court held that a verdict of guilty of manslaughter should have been left to the jury as an alternative. Whether or not such a verdict is to be left to the jury depends very much on the facts of each case. In the case of murder it is necessary to enquire whether there is a viable case of manslaughter available for consideration by the jury. If there is, and manslaughter is not left as an alternative verdict, it cannot be reasoned that there was no miscarriage of justice simply because the jury found the elements of the offence of murder proved beyond reasonable doubt. If the alternative verdict should have been left to the jury, the proviso will not apply unless the jury, properly instructed, would necessarily have convicted the appellant of the offence of murder: Gillard v The Queen (2003) 78 ALJR 64.
The cases to which reference has been made were concerned with an alternative verdict of guilty of a lesser offence arising out of the same conduct. In Gilbert’s case Gleeson CJ and Gummow J referred to statements by the majority of the court in Mraz v The Queen (1955) 93 CLR 493 which were “inconsistent with the notion that an appellate court must assume, on the part of the jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences”: 201 CLR at 421.
In my view s 241 of the Act does not provide for an alternative verdict of the type discussed in the cases of Gilbert and Gillard. Although the offending for which s 241 provides has an historical connection with the facts of the offence alleged, it is based on circumstances which, of necessity, occur after the principal offence has been committed. I do not think that it can be said that an accused person has “lost a chance which was fairly open to him” of being found not guilty of murder by reason of the fact that a verdict of assisting a principal offender to that offence of murder was not left to the jury. Furthermore, the conduct upon which it is said the alternative verdict was available is so tenuous that I do not think it can be said to be a viable alternative in any event.

Mr Cuthbertson also complained that the trial judge did not leave manslaughter as an alternative verdict for the consideration of the jury (ground 18). Counsel for Burgess at the trial did not request that such a verdict be left for the jury’s consideration.
The case for the prosecution was that Ms Burgess wanted Ms Matthews killed and that she told Cowled and Key that this was what she desired. There was no suggestion in any of the conversations deposed to by these witnesses that Burgess contemplated something less than the killing of Ms Matthews.
According to Key’s evidence, Burgess accompanied him to the house. He said that after Burgess punched Ms Matthews in the face he took Ms Matthews to the lounge room. He said Burgess went to the kitchen and started to look through the drawers. Eventually she asked him to bring Ms Matthews into the kitchen where Burgess was holding a knife. Burgess handed Key the knife. According to Key, there was a brief exchange during which he told Burgess that he did not want to stab Ms Matthews. Key’s evidence was that Burgess then said to him:
Be a man, kill her, show me that you love me.
It was then that he commenced stabbing Ms Matthews. He said that after he stopped stabbing the victim, Burgess laughed. This evidence leaves no room for a verdict of guilty of manslaughter.
The only other version before the court was that given by Burgess to the police and what she said in her alibi statement. These statements amounted to a denial that she went to the Matthews house on the occasion of the killing.
There was no basis for a verdict of guilty of manslaughter on either of these versions. There was no other evidence in the case which could support such a verdict. No encouragement was given in Gilbert’s case for a verdict of manslaughter based on nothing more than speculation. There must be some viable basis for such a verdict for it to be left to the jury as an alternative.
I would dismiss the appeal by the appellant Burgess.
The appeal by Matthews
The case against Burgess is readily apparent from what has been said thus far. As for Matthews, it was alleged that his role had to be considered against the background of an intense affair between the appellants which could be proved on evidence admissible against him. According to the prosecution evidence, the appellants were in constant contact with one another in the months leading up to the offence and on the day of the alleged offence there were 18 telephone calls between the two.
It was also alleged that there was constant contact between the appellants after the killing of Ms Matthews. Evidence was led of expressions of deep affection shown by Matthews to Burgess after the date of the alleged offence. The intensity of Matthews’ feelings is demonstrated by his conduct in court when Burgess made her first appearance after her arrest and in a lengthy letter written by Matthews to her while they were in custody awaiting trial (P 91).
There was also evidence that both Darren Burgess and Ms Matthews were, at the very least, suspicious that their spouses were engaged in an affair.
Then there was the evidence of the events which are alleged to have taken place on the day of the killing. Key gave evidence that, when he and Burgess were in each other’s company during the afternoon of that day, Burgess was receiving calls on her mobile telephone. He said there were a large number of calls and during one call he heard her say “Calm down. I’ll get it sorted. Just calm down”. They then drove to the home of Burgess’ parents and she left her children there. After that, they drove to Beaurepaires where Burgess had a discussion with Matthews.
It was open to the jury to find on the evidence that Key accompanied Burgess to Beaurepaires and waited outside before being called in to the premises. The evidence also supported the inference that Matthews and Burgess had been discussing the killing of Matthews’ wife. Key said that when he came inside she told him “It’s got to be done tonight” and, when he enquired about the children, she said in Matthews’ presence, “Kevin’s going to take them to the video store”. The telephone call by Matthews to his home which followed shortly thereafter provides further support for the prosecution case, as do his actions in picking up the children from the home a short time later.
Key gave evidence that after the commission of the offence he and Burgess drove to the foreshore at Grange. While they were there, Burgess rang Matthews on his mobile telephone from a public telephone box. The call was made at 5.59 pm. Matthews did not answer the call but it is not in dispute that he drove to the house shortly afterwards and that when the children went inside they found their mother’s body in the kitchen.
Finally, the prosecution relied on statements made by Matthews in intercepted telephone conversations and other conduct as items of circumstantial evidence in the case against him.
The refusal of the application for separate trials
Prior to the commencement of the trial there were applications by both appellants for separate trials. The applications were refused. According to the first ground of appeal the refusal to order separate trials resulted in undue prejudice to Matthews. It is said that this prejudice arose from the fact that a large body of evidence admissible against Burgess, but not admissible against Matthews, was led in the course of the trial. It is further alleged that the trial judge failed to identify and delineate the evidence which was admissible against Matthews in relation to the existence and scope of any common purpose to which Matthews was a party.
As to the first point, I am of the view that this was not a case in which the evidence against one accused was significantly different from the evidence presented against the other accused to the extent that separate trials were required in the interests of fairness: cf. R v Darby (1982) 148 CLR 668 at 678.
However, that is not an end to the matter because, as King CJ pointed out in R v Collie (1991) 56 SASR 302 at 311:
Nevertheless, the critical question in the end is whether an injustice has been caused by the joint trial. It sometimes happens that a joint trial held in consequence of an entirely justified refusal of the trial judge to accede to an application for separate trials, may be seen, when all the evidence is in, to have resulted in injustice. R v Gibb and McKenzie [1983] 2 VR 155 and R v Demirok (supra) were such cases. The critical issue on an appeal is not whether the exercise of the discretion of the trial judge miscarried on the material before him at the time when he made his decision, but whether the joint trial has produced a miscarriage of justice in the sense of depriving the appellant of a fair trial.
It is the case that a number of items of evidence were admissible against one appellant and not against the other. This called for appropriate directions to be given in relation to the separate cases presented against them.
The summing-up is criticised in this respect. The grounds of appeal complain of a failure to give adequate directions on the restrictions which existed in applying to the case against Matthews the evidence of various transactions admissible only against Burgess. These transactions include the evidence of the discussions between Burgess, Cowled and Key about the killing of Ms Matthews and the payment of $1500 to Key.
The trial judge gave several directions to the jury as to the proper use of evidence in the light of the fact that the appellants were being tried jointly. The directions were both general and specific. These directions were combined with instructions to consider the cases of each accused separately.
At the outset of her summing-up the trial judge said:
I also need to explain to you that in a case like this where there is more than one person charged with a crime it is necessary for you to consider the evidence against each of the accused separately. It is, as if for convenience, two separate trial shave been heard together and you must, therefore, give separate verdicts with respect to each of them.
She continued:
I should also explain that not all of the evidence in the trial relates to both accused. There is some evidence which relates only to one accused and not to the other. Statements made out of court by one accused in the absence of the other is an example. You might remember that I told you quite early in the trial that the statements made by Michelle Burgess to Cassandra Hutchinson about her relationship with Kevin Matthews could not be used by you when you consider the case against Matthews.
Similarly, what Burgess said to the police in her interview on 4 August 2001 cannot be used against Matthews, nor can the statements made by Kevin Matthews in his four interviews with the police be used when you consider the case against Michelle Burgess. I will return to this topic a little later, ladies and gentlemen, but at this stage all I am doing is making the point that not all of the evidence in the case may be used against both accused, although I think it is fair to say that much of it is common to both.
Later in her summing-up the trial judge said:
A great deal of the evidence which you have heard in this case is relevant to the case against both accused, but I remind you once again that it is necessary for you to consider the case against each accused separately because, as I have told you, they do not necessarily stand or fall together.
As I go through the evidence, I will draw your attention to those matters which relate to only one of the accused and not to the other.
Then there were more specific directions. When discussing the evidence as to the relationship between the appellants the judge said:
Ladies and gentlemen, there is further relationship evidence which is relevant only to the case against Michelle Burgess and it must be ignored by you when you consider the case against Kevin Matthews. That is evidence of Cassandra Hutchison as to statements made to her by Michelle Burgess about her relationship with Kevin Matthews. These are out of court statements made by Michelle Burgess in the absence of Kevin Matthews and, therefore, as I told you at the time the evidence was led, these conversations are not admissible against Kevin Matthews, nor can they be used as proof that what was said by Michelle Burgess was, in fact true. Those statements do, however, enable you to draw an inference as to Michelle Burgess’s state of mind at the relevant time which may assist you in determining the state of the relationship between the two accused.
I should add that when the issue as to whether the appellants were having an affair is considered on the evidence admissible against Matthews alone, that evidence is particularly strong. I acknowledge that the evidence is overwhelming in the case against Burgess.
The jury were warned on more than one occasion not to use evidence of what was said during any interview with one appellant in the case against the other appellant. The trial judge also warned the jury not to use evidence of telephone interceptions against an accused who was not a party to the conversation.
There were several warnings against the improper use in the case against Matthews of the evidence of planning involving discussions between Burgess, Cowled and Key. Before discussing this evidence in detail Her Honour said:
I will start off by discussing the evidence of Kathleen Cowled. I should make it clear to you, however, that none of the evidence of Kathleen Cowled as to conversations with Michelle Burgess is admissible against Mr Matthews for the reasons I discussed when I was talking about the evidence of Cassandra Hutchison. These are out of court statements made by one accused in the absence of the other. Mr Matthews was not a party to them, or any of them, and was not in a position to agree or disagree with the truth of what was being said by Michelle Burgess. This evidence is, therefore, only relevant to the case against Michelle Burgess, and must be ignored by you when you consider the case against Mr Matthews.
The first ground of appeal draws particular attention to the evidence of the discussions between Burgess and Cowled and the subsequent discussions with Key. However, the importance of restricting this evidence to the case against Burgess was the subject of the following directions:
Cowled said also she was present when the conversation took place outside the school between Burgess and Key in which Key said it would cost $50,000 for the pair, that is, $25,000 each. Cowled said that Burgess told her she would speak to Kevin but as I told you earlier, none of these conversations can be considered by you in considering the case against Matthews. Accordingly, this comment as well as the other conversations between Cowled and Burgess must be ignored when you consider the case against him. That statement, if it was made, does not provide any proof at all of Matthews’ involvement in these particular events.
When discussing Key’s evidence the trial judge gave a similar direction:
In the course of discussing the evidence of Key, I will refer to conversations he had with Michelle Burgess and other people in the period leading up to the murder. With the exception of the Beaurepaires meeting, however, there is no evidence that Mr Matthews was present at any of those conversations. As was the case with the Kathleen Cowled conversations these, too, are out of court statements made in Matthews’ absence and, therefore, not admissible against him and must be ignored by you when you consider the case against him.
Another matter raised in the first ground of appeal was dealt with in the following passage of the summing-up:
Key said that he subsequently attempted to purchase a handgun from John Boxer to shoot Carolyn Matthews with. He said he asked Boxer to get a price on it and was told by Boxer that the gun would cost about $25,000. [Later corrected to $2,500]
Key said that he then told Michelle Burgess that he needed $1,500 to kick things off. Key said he was not sure when he received the $1,500 from Burgess, but said that it was before he moved in with her. Key was asked where she gave him the money and he replied ‘She told me Kevin Matthews gave it to her but - ‘. He was then cut off by Mr Millsteed and did not finish the sentence. Ladies and gentlemen, that was because that evidence is not admissible evidence against Mr Matthews. Even if that statement was made by Michelle Burgess, it does not mean that she was telling the truth. That statement must be completely ignored by you when you consider the case against Matthews. It does not prove that Michelle Burgess was telling the truth when she said that Matthews provided the money.
The jury were reminded of the importance of dealing with each case separately. As the trial judge moved from one topic to another in the course of her summing up she explained what evidence was admissible in respect of each appellant. In my view the summing-up adequately differentiated between the case against each accused and the evidence admissible to support that case.
The visit to Beaurepaires
Ms Shaw QC, for the appellant Matthews, singled out the visit to Beaurepaires in order to demonstrate what she submitted was a fundamental flaw in the summing-up by reason of a failure to direct the jury on evidence which could not be used against her client.
According to the argument, the statement by Burgess as alleged by Key, “It’s got to be done tonight” could not be used against Matthews unless it fell into one of two categories of evidence. The first category is that relating to a statement made in furtherance of a joint enterprise (Tripodi v The Queen (1961) 104 CLR 1).
The second category put forward in argument concerns the relevance which may arise from an acknowledgment of the truth of the statement made by another by express adoption or other conduct: (R v Christie [1914] AC 545; Barca v The Queen (1975) 133 CLR 82 at 107.
The latter category was not applicable in the present case and no argument was put forward to the court that the evidence was made admissible against Matthews by reason of it coming within the first category.
However, the relevance of the statement in the present case was not dependent on the truth of the fact asserted in it. The relevance of the statement lay in the fact that it was said and in circumstances from which it could be inferred that Matthews was able to hear it and that he did hear it.
In the light of the other circumstances in the case and particularly what followed within a short time of the statement being made, it was clearly open to the jury to infer that the statement related to the killing of Ms Matthews. The jury were also entitled to attach significance to the fact that it was said after Ms Burgess had been having a discussion with Matthews. It might be considered unlikely that such a statement would be made in his presence if he had no knowledge of what was contemplated by the words “It’s got to be done tonight”.
Furthermore the statement cannot be divorced from what then took place in the office. According to Key, he asked “What about the kids?” and Burgess said “Kevin’s going to take them to the video store”. Again it was open to the jury to find that this statement was made within Matthews’ hearing and that he subsequently made a telephone call to arrange for the children to be picked up.
Key was cross-examined by counsel for Matthews as to the precise order of events on this occasion. In examination-in-chief Key said he waited outside while Burgess went into the office and spoke to Matthews. He said he entered the office after she beckoned to him. He said he asked her “What’s going on?” and she said “It’s got to be done tonight”. He said she spoke quite clearly.
According to Key, he said “What about the kids?” and Burgess said “Kevin’s going to take them to the video store”. Key said that he was standing on one side of a customer counter during this conversation as Matthews was standing on the other side of the counter near a display of tyre rims. Burgess was standing near Key and at the counter. It is apparent that Matthews would have been within ear shot of the conversation if the words were spoken in a normal voice.
Key said he asked Matthews if he could use the telephone and Matthews permitted him to make a telephone call from a telephone which was on the counter. In his examination-in-chief Key said that he rang a man named Rose in order to elicit his aid in the killing of Ms Matthews. He said that he spoke to Rose for about 3 minutes. He and Burgess then left.
In cross-examination he said that he did not notice Matthews making a telephone call while he was speaking to Rose. It was put to him that the words spoken to him by Burgess were after he (Key) made the telephone call. He said they could have been, but immediately after said he was “pretty sure” that Matthews was on the other side of the counter near the wheel rims when the conversation took place.
After further cross-examination, he repeated his evidence that he was standing at the counter when the remark about it being done tonight was made and repeated his evidence that he was “pretty sure” that Matthews was standing on the other side of the counter.
The trial judge read out to the jury a lengthy passage of this cross-examination in the course of her summing-up. It was open to the jury to find that the relevant comments were made in Matthews’ hearing. It does not seem to have been in dispute that Matthews made arrangements to pick up the children while Key and Burgess were still in the office.
The making of the statements while the appellants and Key were in close proximity to each other (if so found by the jury), the sequence of events, the fact that what was said was reflected in the movements and actions of the parties leading up to and including the killing provides circumstantial evidence that Matthews was a party to a joint enterprise to murder his wife.

As I understand it, this is the way in which the evidence was left to the jury. After summarising the events in the Beaurepaires office, Her Honour said:
On the prosecution case, this is circumstantial evidence which links Matthews to his wife’s murder. Mr Millsteed put to you, if you are satisfied beyond reasonable doubt that events unfolded in the way he described when he went inside the office, it would be evident from that that both accused had decided to kill Ms Matthews before Key went into the office.
In order to use the evidence in this way the jury would have to conclude that Matthews was aware of the discussion deposed to by Key. But that was an issue of which the jury were well aware. Matthews said in an interview with the police that Burgess came to the office to enquire about tyres. However, Key gave evidence that Matthews was “standing on the other side of the counter” when the statement “It’s got to be done tonight” was made.
Key was tested in cross-examination on this assertion and the cross-examination was read to the jury in the course of the summing-up.
In my view it was open to the jury to accept Key’s evidence so as to find that Matthews was aware of the conversation.
It was argued that the trial judge did not adequately direct the jury on the circumstances in which the conversation deposed to by Key could be used against Matthews. I have expressed the view that the conversation was relevant in the case against Matthews if it took place within his hearing.
In the course of the summing-up the trial judge said:
The prosecution case against Matthews is that he played his part in the plan by removing the children from the house so that the murder could take place. If you were to find as a reasonable possibility that there was no discussion at Beaurepaires involving Mr Matthews and that Burgess and Key simply took advantage of Mr Matthews’ absence to go to the house in the course of which the murder occurred, then in that situation Mr Matthews would be entitled to a verdict of not guilty.
The reference to “involving Mr Matthews” could only refer to the discussion being in his presence and within his hearing. It was not suggested that he contributed to the discussions on these matters. In addition, Her Honour commented on the submission of the prosecutor that the conversation must have been heard by Matthews if Key’s evidence was accepted. When summarising the submissions made by Matthews’ counsel, she reminded the jury of the significance which he placed on where Matthews was at the time the statements were made. She said:
Mr McEwen suggested that the sequence of events when Key entered the office may well have been different from that he described in evidence-in-chief. You will remember that when I was discussing his evidence yesterday, Mr Key said that the reference to getting it done tonight and Kevin taking the kids to the video store occurred more or less as soon as he entered the office and before the call to Scott Rose. Mr McEwen suggested, however, that the comments could have been made after the call to Rose, just as they were leaving, and at a time when Key did not know where Matthews was. If those statements were made as they were leaving, on the defence case there is a plausible explanation as to what occurred which is consistent with Mr Matthews’ innocence.
In my view the jury were made well aware of the necessity of Matthews being involved in the conversation in the sense discussed before evidence of the statements made during the conversation could be used in the case against him.
Lies told about the relationship between the appellants
As part of the argument that the cases concerning the appellants were not dealt with separately, objection was also taken to the following direction:
Mr Millsteed, of course, put to you that each of the accused lied to the police about the nature of their relationship, and if you are satisfied that is so, then that is a matter that you are entitled to take into account when you assess the credibility of each of the accused. You will, however, appreciate that there are many reasons why people tell lies and regrettably it is a fact of life that lies are often told by people engaged in illicit relationships. In this case, if the accused were having a sexual relationship prior to 12 July you might not be surprised at their subsequent reluctance to admit that that was the case once Ms Matthews had met her end in such a violent manner. It would be understandable that they might feel embarrassed or even guilty about the state of their relationship and therefore be reluctant to admit the truth of the matter without being implicated in any way in the crime committed by Key.
The basis of the objection was that the jury were being invited to attach significance to the allegation that both appellants lied as opposed to the assertion that each lied about this topic. Ms Shaw argued that the direction invited the jury to take into account lies told by Burgess in the case against Matthews.
In my view, this was not what was conveyed to the jury. The trial judge was simply applying the direction to both cases. There was no suggestion of cross-admissibility. I have pointed out that on more than one occasion the trial judge warned the jury that what one accused said in the absence of another was not admissible against the accused who was not present.
Collusion
The topic under discussion when the above direction was given was the relationship between the two appellants. However, Ms Shaw pointed out that a similar argument was used to support an allegation that the appellants colluded in putting forward the claim that Burgess was with Colenso at the time of the visit by Burgess to Beaurepaires and immediately thereafter.
It is clear that the prosecution put forward an argument on collusion in relation to the Colenso alibi. However, it is apparent from the nature of collusion that it can be established from statements made by two or more persons. The very fact that individually they relate the same explanation may, in certain circumstances, establish the fact of collusion.
The prosecution based its argument that Matthews had assisted in the “Colenso alibi” on a series of telephone conversations between Matthews and Colenso. At the conclusion of that analysis Mr Millsteed QC, who prosecuted at the trial, referred to two telephone conversations between Burgess and Colenso which had taken place after the telephone conversations between Matthews and Colenso.
In the first of these conversations the prosecution relied on statements by Colenso from which the prosecution argued he was suggesting details of the alibi to Burgess. In the second conversation he intimated that he was going to provide the alibi. It appears that these two conversations were relied upon simply to establish that he was prepared to provide an alibi. The prosecution also relied on a number of conversations between Matthews and Burgess and the jury were asked to infer from these conversations that Matthews and Burgess were colluding to fabricate an alibi involving Colenso.
In my view the prosecution did not rely on any evidence which was inadmissible against Matthews in arguing that he was involved in the steps which led to the alibi being presented and the trial judge’s directions did not leave open any impermissible use of the evidence.
Ms Shaw raised further complaints about the summing-up on this topic. It was argued that the trial judge should have given the jury a direction of the type discussed in Edwards v The Queen (1993) 178 CLR 193. It was not suggested to the jury by the trial judge or the prosecutor that the statements by Matthews which were relied upon as part of the assertion of collusion revealed a consciousness of guilt. In my view they could not be used for this purpose in any event.
The evidence of alleged collusion was led by the prosecution as an item of circumstantial evidence arising from post-offence conduct. On the prosecution case the conduct involved planning which resulted in a false alibi. However, the words spoken in the course of the planning did not involve lies revealing a consciousness of guilt in the sense discussed in Edwards v The Queen.
Ms Shaw also complained that the trial judge did not identify for the jury which telephone intercepts were relevant against Matthews in support of the argument that there had been collusion. I have pointed out that the relevant telephone intercepts were summarised by Mr Millsteed QC in his address. There was no need for the trial judge to repeat them. It is also relevant to note that the jury had copies of the telephone intercepts which were numbered and the trial judge drew the jury’s attention to those intercepts which were not admissible against Matthews. These included the two conversations between Colenso and Burgess referred to above which took place on 13 and 18 August.
The payment of $1500 to Key
The next argument put forward on the appellant’s behalf concerns the payment of the sum of $1500 by Burgess to Key at some time in the weeks leading up to the commission of the offence. Key gave evidence that he received the money from Burgess. He could not remember the precise date. There was evidence that Matthews withdrew the sum of $1500 from his bank account on 3 July 2001.
Ms Shaw argued that the evidence did not establish that the amount given to Key had been supplied in the first place by Matthews. Alternatively, she argued that the evidence did not establish that, if the money was given by Matthews to Burgess, it was part of a plan to murder Matthews’ wife. According to the argument these deficiencies rendered the evidence inadmissible. Furthermore, it was contended that the evidence was not adequately dealt with in the summing-up and that the trial judge should not have left the evidence to the jury as being capable of amounting to corroboration.
The trial judge commented on this evidence in the following passage in her summing-up:
He [Key] said that he commenced a sexual relationship with Ms Burgess about a month before the murder and about two weeks before he actually moved in with her.
Key said that he subsequently attempted to purchase a handgun from John Boxer to shoot Carolyn Matthews with. He said he asked Boxer to get a price on it and was told by Boxer that the gun would cost about $25,000. [Later corrected by a further direction to $2,500].
Key said that he then told Michelle Burgess that he needed $1,500 to kick things off. Key said he was not sure when he received the $1,500 from Burgess, but said that it was before he moved in with her. Key was asked where she gave him the money and he replied ‘She told me Kevin Matthews gave it to her but - ‘. He was then cut off by Mr Millsteed and did not finish the sentence. Ladies and gentlemen, that was because that evidence is not admissible evidence against Mr Matthews. Even if that statement was made by Michelle Burgess, it does not mean that she was telling the truth. That statement must be completely ignored by you when you consider the case against Matthews. It does not prove that Michelle Burgess was telling the truth when she said that Matthews provided the money.
Mr Millsteed did, however, suggest that there was a link between the $1,500 cash withdrawn from the Matthews Property Power account (Exhibit P86) on 3 July 2001 and the $1,500 paid to Key by Burgess. You will remember that the account shows a cash withdrawal of $1,500 in $100 notes on 3 July, and Key initially said that the money he received from Michelle was in $100 notes.
In cross-examination, however, he said he could not remember the exact denominations of all the notes, but said that at least the top note was a $100 note.
Mr McEwen, however, referred you to other cash withdrawals from that account and queried the significance of this particular one.
Mr McEwen suggested in any event that by reference to some of Boxer’s evidence, that the time frame was wrong. We know that Key eventually told Boxer that he had squandered the money that he had got from Michelle and if the dates of conversations given by Boxer are reasonably correct, Mr McEwen suggested that the money would have been spent by Key well before the withdrawal of money by Matthews on 3 July. Mr McEwen also referred you to the cash deposits into the account a couple of weeks later and suggested that at the end of the day, this particular withdrawal was totally innocuous and did not incriminate Mr Matthews in any way. In any event, when asked what he did with the money Key said he ran amok. He spent it on drugs, food, petrol and a couple of items of clothing, as a result of which he did not have the money to pay Boxer.
The evidence was clearly admissible as an item of circumstantial evidence. There is an obvious fallacy in the argument that the evidence was inadmissible because it did not prove the further aspects referred to by Ms Shaw. Admittedly the evidence was of limited weight, but in the context of the other evidence in the case the jury were entitled to attach some significance to the bank withdrawal by Matthews including the amount and the timing. Of course they could have put the evidence aside for the reasons advanced by defence counsel Mr McEwen and summarised in the summing-up.
I do not think the trial judge was obliged to give further directions to the jury on the topic. The basis upon which the jury were invited to attach significance to the evidence would have been apparent to them and the arguments against attaching such significance were also readily apparent.
The telephone call from Grange
It was contended on the appellant Matthews’ behalf that the evidence of the telephone call made by Burgess at Grange immediately after the killing did not implicate Matthews and should not have been left by the trial judge as an item of evidence which had the potential to corroborate the case against him. Alternatively, it was argued that the trial judge did not give adequate directions to the jury as to how the evidence could be used in the case against Matthews.
The trial judge’s directions on the topic were as follows:
They then drove to Grange beach as Key said he wanted to go and wash his face. He said they ended up where the hotel and the jetty is. Key thought it was after 6 o’clock when they arrived. He said he parked the car in one of the car parks in front of the hotel. Burgess said to him that she had to ring Kevin to let him know the job was done. Key said he told her to use the phone box outside the pub and not her mobile. He said he then went down to the beach and washed his face and hands and he said he did not see what happened thereafter. We know, however, that the telephone records produced to the court by Megan Foster of Telstra disclose that a phone call was made from the public telephone box at Grange to Matthews’ mobile at 5.59 p.m.
On the prosecution case, this is a telling piece of evidence which further supports the truth of the evidence of David Key. The police only checked the records for the phone box at Grange as a result of the information obtained from Key, and there is no dispute that Key was the only source of that information. Key could not, therefore, have known about the call unless he was there when it was made. On the prosecution case this call was made to Matthews at the video store to let him know that the job was done.
Mr McEwen, however, in his address, referred to another reasonably possible explanation for it, and I’ll discuss that shortly when I discuss the case against Mr Matthews.
We do know, however, from Mr Sims of Telstra, that the call only lasted five seconds and was diverted to message bank. Mr Sims explained there were four possible scenarios for that to occur: first, the call might not have been answered within a pre-set time; secondly, that Mr Matthews was on another call at the time; thirdly, that Mr Matthews had used the red button on the phone to divert the message because he did not want to speak to the caller; or lastly, that the phone was out of range, although this last possibility does not apply.
Whatever the reason for the call being diverted, Mr Millsteed put to you that the fact of this phone call being made to Mr Matthews’ mobile shortly after the murder from a public phone box, and at a time when Mr Key must have been present, directly links Mr Matthews to the murder of his wife.
Mr Millsteed described Mr Matthews’ movements that night as synchronised, and he said that he thereby provided Key and Burgess with the narrow window of opportunity in which to murder Ms Matthews. I will, however, return to some of the timing of relevant matters later when I elaborate on the case against Mr Matthews.
If Matthews was aware that his wife was to be killed and he removed the children from the house to facilitate the commission of the offence, it is not surprising that Burgess would decide to ring him after Ms Matthews had been killed so as to clear the way for his return to the home with the children. The evidence is not to be considered in isolation from the sequence of events which commenced with the visit of Burgess to Matthews at Beaurepaires. Furthermore, it provides support for Key’s evidence as to the making of the call.
In my view the evidence was properly considered as an item of circumstantial evidence in the case against Matthews. The trial judge’s directions against the background of the prosecutor’s submissions adequately explained the significance of the evidence to the jury. The aspect of corroboration is discussed later in these reasons.
Key as an accomplice
The trial judge told the jury that there was no doubt on the evidence of Key that he was an accomplice of Burgess and Matthews in the planning and execution of the crime committed by him. The criticism made of this direction is that it was unfair in that it suggested that the evidence given by Key implicated Matthews when it did not.
The first comment to be made about the submission is that it takes an unduly narrow view of Key’s evidence. Key deposed to the conversation at Beaurepaires in circumstances from which it could be inferred that the conversation was heard by Matthews. The incriminating nature of that evidence in the context of other evidence in the case has been discussed earlier in these reasons.
The well-known formulation of the accomplice rule in Davies v DPP [1954] AC 378 at 399 states in its first proposition that the prima facie application of the rule arises if an accomplice gives evidence for the prosecution. Generally speaking, that evidence will incriminate the accused. However, I cannot accept the argument in this case that the evidence given by Key did not have the potential to incriminate Matthews. I have already discussed the significance of this evidence. Key’s description of the events and conversation which he said took place at Beaurepaires were at the core of the prosecution case against Matthews.
Furthermore, the determination of the issue as to whether the witness is an accomplice does not require a decision by the jury as to the criminality of the accused. That, of course, is the ultimate issue to be decided in the case. The proper enquiry is whether witnesses called by the prosecution are “participes criminis in respect of the actual crime charged” (Davies v DPP at 400). In the present case it is clear that Key was an accomplice on his own admission (cf. Davies v DPP at 402).
The final point on this issue raised by the appellant Matthews is that unfairness arose from a comment made by the trial judge that “there can be no doubt on his [Key’s] evidence that he was an accomplice with Burgess and Matthews in the planning and execution of the crime committed by him”.
In the light of the previous discussion it would have been more accurate and appropriate for the trial judge to have referred to Key as being an accomplice on his own admission in the crime charged.
However, I am confident that the jury would not have been misled by these words. Reliance was placed on R v Winters (1995) 184 LSJS 266 where the trial judge made repeated references to a witness as being an accomplice “of the accused” to such a degree that the court considered some jurors may have concluded that the trial judge was implying that if the accomplice was guilty the appellant must have been guilty.

When the remark in this case is read in the context of the summing-up as a whole no such danger existed.
Corroboration
In the joint judgment of the court in Doney v The Queen (1990) 171 CLR 207 at 211 their Honours set out a series of propositions on corroboration all of which are relevant in the present case. They said:
The essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’: Reg. v Kilbourne [1973] AC 729 at p 758, per Lord Simon of Glaisdale. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’: R v Baskerville [1916] 2 KB 658, at p 667.
It is well settled that corroboration may be in the form of circumstantial evidence: Baskerville [1916] 2 KB 658 at p 667: see also Reg. v Tripodi [1961] VR 186, at pp 190-191; Reg. v May [1962] Qd R 456, at p 459, per Gibbs J.; Reg. v. Lindsay (1977) 18 SASR 103, at p 117, per Zelling and Wells JJ.; Medcraft v The Queen [1982] WAR 33, at p 40. Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded: see Hodge's Case (1838) 2 Lewin 227 [168 ER 1136]; Peacock v The King (1911) 13 CLR 619 at pp 634, 651-652, 661; Martin v Osborne (1936) 55 CLR 367, at pp 375, 381; Thomas v The Queen (1960) 102 CLR 584 at pp 605-606; Plomp v The Queen (1963) 110 CLR 234 at p 252; Barca v The Queen (1975) 133 CLR 82, at pp 104, 109. But, if some lesser standard will suffice, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved: see Peacock (1911) 13 CLR at p 638, where Griffith C.J. noted the different considerations applicable to circumstantial evidence in civil and criminal cases.
It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: see Baskerville; Reg v Hester [1973] AC 296 at p 325.
I also respectfully adopt the comment in the joint judgment of the court in R v Tadic & Gibb (Supreme Court of Victoria, Appeal Division Court of Criminal Appeal, BC 9300826) at [22] that the independent evidence capable of corroborating the accomplice must itself tend to prove that the accused committed the crime.
After indicating that the evidence concerning the payment of $1500 to Key was capable of amounting to corroboration in the case against Matthews, the trial judge identified additional items of evidence which could be used for the same purpose:
The link between the 5.21 p.m. phone call from Beaurepaires to Scott Rose and the 5.24 p.m. phone call to Matthews’ house and the removal of the children from 5 Nambucca Avenue shortly thereafter is capable of corroborating Key’s evidence as to the sequence of events.
The evidence of the phone call made from the Grange telephone box to Matthews’ mobile.
The Optus evidence as to Colenso’s phone being in the Elizabeth area and not Port Adelaide in conjunction with the evidence of Peter McMahon is capable of corroborating Key’s evidence that he was the man at Beaurepaires.
The last item to which I am going to refer only relates to Mr Matthews, and that is the telephone intercepted conversation No.40 between Matthews and Colenso on 4 August when Matthews refers to Key making sure he was not in the car with her (ie Michelle).
Ms Shaw has submitted that there was no corroboration in the case of Matthews. Contrary to Ms Shaw’s earlier submission, I have expressed the view that the evidence relating to the payment of $1500 was admissible as part of the circumstantial case against Matthews in so far as it established, if accepted, that Matthews withdrew that amount from his bank account at about the time of the alleged payment by Burgess to Key. The evidence of the withdrawal and its timing is independent of Key and provides support for his claim that he received the money. The evidence is to be considered against the background of the relationship between Matthews and Burgess and the existence of a possible motive for the killing of Ms Matthews. In my view the evidence satisfies the requirements of corroborative evidence.
I have also expressed the view that the evidence of the telephone call from Grange is admissible against Matthews in that it provides support for the prosecution assertion that the events at the Beaurepaires office disclosed a plan by which Matthews removed his children from the home knowing that the murder was about to take place. The making of the telephone call by Burgess shortly after the offence and before Matthews returned to the home provides support for Key’s evidence and the case against Matthews generally.
The trial judge was correct in leaving the evidence in relation to the calls to Colenso as corroboration for Key’s evidence that Colenso did not accompany Burgess to Beaurepaires, but that it was Key. I am also of the view that the sequence of events deposed to by Key is supported by evidence of the timing of the telephone calls made at Beaurepaires and the removal of the children shortly thereafter. Again, these items of evidence were capable of amounting to corroboration.
The final item of corroboration left to the jury was an intercepted telephone call between Matthews and Colenso which took place on 4 August 2001. Colenso said during the call that he had just told Key that Burgess had been charged. Referring to Key, Colenso said “He’s going off his brain” and, after further discussion about Key, Matthews said “Yeah, well he’s gunna make sure he wasn’t in the car with her”. In my opinion this evidence supports the argument that Burgess and Matthews colluded after the murder to foster the false story that Colenso and not Key was in the car during the visit to Matthews at Beaurepaires. I think it can also be properly regarded as corroboration by reason of its tendency to implicate Matthews in the offence.
In the conclusion which I have reached the trial judge was correct in leaving these items of evidence to the jury as capable of amounting to corroboration. Furthermore, the instructions in relation to corroboration generally were adequate.
Alternative verdict of manslaughter
According to the argument put forward on behalf of Matthews, the trial judge should have left manslaughter as an alternative verdict to the jury. She was not asked to do so by counsel for Matthews, but that is not an answer to the point raised.
The cases of Gilbert v The Queen and Gillard v The Queen have been discussed earlier when it was pointed out that, if manslaughter is a viable alternative, it should be left for the consideration of the jury.
The case against Matthews was that by reason of his relationship with Burgess he had a motive for killing his wife. It is unnecessary to repeat the details of the Beaurepaires visit but it was open on the evidence for the jury to infer that Matthews had been discussing the killing of his wife before Burgess asked Key to come inside. Further, it was open to the jury to infer that the comment “It’s got to be done tonight” was made in Matthews’ presence and that he was aware of the reason why it was said. The further comment about the children and Matthews’ actions which followed were capable of supporting the conclusion that he was a party to a plan to murder his wife.
Matthews denied involvement in the murder of his wife and there was no reason on his version for the jury to find that he was guilty of the lesser offence of manslaughter. On his version he was entitled to a complete acquittal.
On the other hand, it could not be said that there was any room for a verdict of manslaughter as opposed to murder on the evidence led by the prosecution. There was no evidence to support the suggestion that he agreed to take part in an offence of violence with an intention falling short of that required for murder. In my view the verdict of the lesser offence would have to be based upon speculation. However, the evidence of motive, what was said and done at Beaurepaires and the actions of the appellant Matthews shortly before and after the offence support a finding that the appellant had agreed to take part in the murder of Ms Matthews.
In support of this ground Ms Shaw said that it was part of Matthews’ case that the decision to kill Ms Matthews was made on the spur of the moment by Burgess and Key. It was argued that the purpose of the visit to the house was to warn the deceased off from making complaints to the welfare authorities about Burgess and to prevent Ms Matthews from interfering in a custody dispute between Burgess and her husband. It was argued that things may have then got out of hand when Burgess and Key went to the house on the night of the killing.
Ms Shaw also made the point that, when Burgess spoke to Ms Cowled about getting someone to deal with Ms Matthews, Ms Cowled said she did not know that there was going to be a killing, or even that someone would be hurt.
I have already referred to the directions which the trial judge gave to the jury to the effect that this was not evidence which could be used against Matthews. However, as Ms Shaw argued on appeal that the evidence should be used in support of this argument, it requires closer examination.
Ms Cowled said in evidence-in-chief that, when Burgess spoke to her, she referred to Ms Matthews and said “she wanted her six foot underground”. She then gave the following evidence:
Q    And this conversation about wanting to get rid of Carolyn occurred outside the school?
A    Yes.
Q    At that time did she say how she wanted to get rid of Carolyn?
A    Yes.
Q    What did she say?
A    She said that she would pay anybody that would do it, put her away, car accident, just make sure the kids wasn’t with them.
Q    Did she tell you what she wanted to happen to Carolyn?
A    Six foot underground.
Q    When Michelle said these things to you outside the school, what did you say?
A    I was surprised.
Q    What did you say to her?
A    I said ‘I’ll see what I can do’, I made a phone call.”
The witness said she rang her brother Mr Key. The examination-in-chief continued:
Q    What did you say the problem was when you spoke to David [Key]?
A    Told him that I had a friend, that she was getting harassed by phone calls and stuff, so told him about it and he said he would see what he could do.
Q    Did you tell him that Michelle wanted to get rid of Mrs Matthews?
A    Yes.
Q    What words did you use?
A    I told him that she didn’t want any more trouble from Mrs Matthews, she wanted her six foot underground.
Q    What did Mr Key say?
A    He said he knew somebody that would help her out.”
Ms Cowled adhered to this evidence in cross-examination. When asked about what Burgess said to her, the witness replied:
She just said that she had had enough of Carolyn’s rubbish and she just wanted her put out the way, six foot underground.
It is true that Ms Cowled said she did not know there was going to be a killing or that Ms Matthews would be hurt. However, these answers were based upon what she said was her expectation as opposed to what she was actually told.
The evidence referred to by Ms Shaw does not advance the argument that, if the appellant Matthews was party to an agreement with Burgess, it contemplated no more than causing Ms Matthews some harm falling short of killing her.
I would reject the argument that an alternative verdict of guilty of manslaughter should have been left to the jury in the case of the appellant Matthews.
Unsafe and unsatisfactory verdict
The argument that Matthews’ conviction was unsafe and unsatisfactory is based primarily on the assertion that the evidence was incapable of supporting the verdict.
I have considered the evidence in accordance with the approach required of an appellate court when considering whether a verdict is unsafe or unsatisfactory: M v The Queen (1994) 181 CLR 487. The relevant evidence has been discussed in relation to other grounds of appeal. For the reasons given previously I am of the view that the evidence led by the prosecution was capable of supporting the verdict and I have already rejected the further submission that the verdict was made unsafe because of a risk that the jury were unable to adequately isolate the evidence admissible against Matthews alone.
I would dismiss the appeal by the appellant Matthews.
In summary, therefore, I would refuse leave to appeal on grounds 12 and 18 of the appeal by Burgess and I would dismiss the appeal by her.
I would dismiss the appeal by Matthews.
DEBELLE J: I have had the advantage of reading the reasons of Duggan J. I agree with the substance of those reasons. I add the following remarks in respect of the contention on behalf of Matthews that manslaughter should have been left to the jury as an alternative verdict.
A viable case of manslaughter can only exist if there is a legal or evidentiary basis upon which the judge can properly direct the jury. Similarly, it can only be clear that a jury, properly instructed, would not necessarily have returned a verdict of murder if there is a legal or evidentiary basis for that conclusion. If the position were otherwise, judges would be formulating directions upon hypotheses lacking any legal or evidentiary foundation. In Gillard v The Queen (2003) 78 ALJR 64 there was a legal basis for the alternative basis of manslaughter.
When contending that a verdict of manslaughter should have been left to the jury in respect of Matthews, Ms Shaw QC submitted that there was no evidence of any preparation or plan to kill Ms Matthews; that Burgess and Key had made a spur of the moment decision to go to the Matthews’ house for the purpose of confronting Ms Matthews and warning her to stop making reports to welfare authorities that Burgess was not caring for her children and to get her to stop interfering in the affairs of Burgess; and that after Burgess and Key had arrived at the Matthews’ house events got out of hand and went beyond the scope of any criminal purpose to which Matthews was a party. The submission was grounded on evidence of Key and of Ms Cowled, who was the person who had put Burgess in touch with Key. Ms Cowled gave evidence of complaints to her by Burgess that Ms Matthews had harassed Burgess and had reported her to welfare authorities. The effect of that evidence was that Ms Cowled believed that the purpose of Burgess in wanting to contact Key was to stop Ms Matthews from harassing her. The evidence of Key relied on was to the effect that, when he and Burgess were driving to the Matthews’ house, he did not wish to hurt Ms Matthews but simply wished “to scare the shit out of her”.
The evidence of Ms Cowled does not justify leaving manslaughter to the jury. She was speaking of her knowledge at the time she put Burgess in touch with Key. The evidence of Key that he was retained to kill Ms Matthews took the matter a good deal further. In addition, Ms Cowled’s evidence relates to the intentions of Ms Burgess, not to the intentions of Matthews. As will shortly be noted, the jury could readily conclude from the evidence of Key that, when he and Burgess left Beaurepaires, Burgess had the intention of killing Ms Matthews.
The evidence of Key that he went to the Matthews’ house only intending to “scare the shit” out of Ms Matthews must be placed in context. He had earlier given evidence that he had been retained to kill Ms Matthews. In cross‑examination, he said that he went to the Matthews’ house only because Burgess was with him, that he was arguing with Burgess and that Burgess used his anger against him to incite him to kill Ms Matthews. The jury could readily infer from the whole of his evidence that Burgess went to the house intending to kill Ms Matthews. He said that, while he and Burgess were driving to the Matthews’ house, Burgess took control of everything and pushed him into directions he did not wish to go. In cross-examination he said that he understood that the words, “It’s got to be done tonight” meant that it was the murder of Ms Matthews that had to be done. Later in cross-examination he said that Burgess “kept on biting me to stir me up to do this murder”. That evidence was admissible against Burgess for the purpose of establishing that the only purpose in Burgess and Key going to the Matthews’ house was to kill Ms Matthews. However, that evidence does not provide a basis for concluding that Burgess went there for any purpose other than to kill Ms Matthews. There was nothing in the words or conduct of Burgess on that night which was consistent with any purpose other than killing Ms Matthews.
For all of these reasons the evidence of Cowled and Key which was used to ground the submission of an alternative verdict of manslaughter does not establish that Burgess and Key went to the Matthews’ house for the purpose of causing Ms Matthews some harm falling short of killing her.
The prosecution case was that Matthews and Burgess had the common criminal purpose of killing Ms Matthews. The case against Matthews was circumstantial. The prosecution asked the jury to infer that Matthews was aware of and had agreed to arrangements made by Burgess to kill Ms Matthews. The evidence relied on by the prosecution for this inference included the intense and passionate affair between Matthews and Burgess over a period of almost one year before Ms Matthews was killed; the evidence as to Matthews and Burgess staying on a number of occasions at motels; the evidence of an expensive gift from Matthews to Burgess; and the evidence of the very large number of telephone calls made between them. For ten months during that affair there were times when Matthews and Burgess were speaking on the telephone on an average of ten times each day. The prosecution also relied on the evidence of Key that Burgess had retained him to kill Ms Matthews; on the evidence of Key that in response to a number of telephone calls from Matthews to Burgess on the afternoon of 12 July Burgess went to see Matthews at Beaurepaires, taking Key with her; that on the evidence of Key and a witness Bland there had been an animated conversation between Burgess and Matthews at Beaurepaires when they were seen talking and pacing about in Matthews’ office; on the evidence of Key that after that conversation Burgess called Key into the office and said loudly in the hearing of Matthews, “It’s got to be done tonight” and that, shortly after, in response to Key’s question about Matthews’ sons, Burgess said that Matthews was taking his sons to the video store. The prosecution asked the jury to infer that Matthews was aware that Key had been retained to kill Ms Matthews and to conclude that, during the animated conversation at Beaurepaires, Matthews and Burgess had agreed that Ms Matthews would be killed that night. The prosecution asked the jury to infer that, when Burgess said to Key in the hearing of Matthews, “It’s got to be done tonight”, Matthews knew and understood that Burgess and Key were going to kill Ms Matthews that night and that is why he made the arrangements to take his sons to the video store.
Standing alone and without the benefit of the evidence, the remark, “It’s got to be done tonight” is equivocal. It does not indicate what it was that had to be done. Standing alone, it could refer to some enterprise which did not include any intent to kill. However, it must be understood in the context of the evidence led in this case. The evidence showed that the only purpose Burgess had when she went with Key to the Matthews’ house was to kill Ms Matthews. She had no other intention. She certainly did not have an intention merely to engage in some kind of violence with an intention which fell short of that required for murder.

On the basis of this evidence, there were really only two verdicts available for the jury in respect of Matthews. The jury would be satisfied beyond reasonable doubt that Matthews was party to the common enterprise to kill Ms Matthews or it would not be so satisfied. There was no evidence of any kind of agreement between Burgess and Matthews which fell short of killing Ms Matthews which would justify leaving manslaughter to the jury as an alternative verdict. Matthews denied involvement in the murder of his wife and there was no basis for the jury to find that he was guilty of the lesser offence of manslaughter. There was no evidence to support the suggestion that Matthews had agreed to take part in a kind of violence with an intention falling short of that required for murder. There was no evidence from either Burgess or Matthews which showed an intention on the part of Matthews which was less than a common enterprise to kill Ms Matthews. On the evidence, the only verdicts available in respect of Matthews were either a verdict of guilty of murder or not guilty. This was not a case where manslaughter should have been left to the jury.
I too would refuse the applications for leave to appeal by Burgess and would dismiss both appeals.
LAYTON J: I agree that the appeals by Burgess and Matthews should be dismissed for the reasons given by Duggan J.
I further consider that in relation to the circumstances and events which occurred at Beaurepaires, there are some further factors which reinforce the conclusion that these were circumstances which the jury was appropriately entitled to consider when deciding whether Matthews was a party to a joint enterprise to murder his wife. These matters are particularly relevant to the argument addressed by Counsel for the appellant and dealt with by Duggan J under the heading of “The Visit to Beaurepaires” and later in the consideration by His Honour as to whether manslaughter should have been left as an alternative verdict.
I will set out the relevant chronology and circumstances even though in many instances they are already addressed by Duggan J, as their importance and relevance lies in the sequence and the detail.
The evidence of Key was that he parked the car in front of the glass doors of Beaurepaires and Burgess got out and walked inside. He saw her and a person whom he later identified as Matthews, talking and pacing from one end of the shop to the other and that they appeared to be upset or disturbed. He estimated that this could have been between five or ten minutes.
Burgess then waved for him to come inside and he also went through the glass doors into the Beaurepaires office. He described Burgess as standing in front of a counter on the customer side, Matthews was behind the counter on the other side. The counter is identified in photograph 106. Key said that he went to the customer side of the counter where Burgess was and to the left of her. These were the positions of the three of them when according to Key the following conversation took place.
Key asked Burgess what was going on and she replied "It's got to be done tonight" and she said these words quite clearly. Key asked Burgess "What about the kids" to which Burgess responded "Kevin's going to take them to the video store". Key then asked Matthews if he could make a phone call to which Matthews said it was not a problem and turned the phone around on the counter to enable Key to use it. Key said he then telephoned a friend Scott Rose and said to him "Hey buddy, can you come down tonight, because it's on tonight, can you come down?" He said that the conversation was short, not even three minutes. Key also agreed that at the time he was speaking to Rose, he was not paying attention to what Matthews and Burgess were doing.
Key was cross-examined by counsel for Burgess and re-affirmed this evidence. He also said that “it stood out like a sore thumb” that the words "It's got to be done tonight" were referring to the murder of Matthews wife.
He was further cross-examined by counsel for Matthews and a number of questions were put to him as to the timing of his conversation with Rose and whether or not the statements of Burgess “could” have occurred after that telephone call. He agreed, but said that he was not sure. Key also agreed that whilst he was making the phone call to Rose, Matthews could have made a phone call from a different phone and he did not notice it. However, he later emphatically reaffirmed that Matthews was standing in front of him at the time when Burgess made the statements.
In addition to Key's evidence, there were telephone records which showed that a call was made to the mobile phone of Rose from Beaurepaires at 5:21 p.m. and lasted 5.14 minutes, which was consistent with the evidence of Key as to his conversation with Rose. The telephone records also showed a further phone call made from the Beaurepaires office to the Matthews home at 5:24 p.m. and lasted 42 seconds, being a phone call made by Matthews to his home. The content of the conversation was given by Mathew’s son which was that Matthews told him to get his two brothers and to all meet him outside the front of the house and he would take them to get some videos.
Counsel for Matthews argued on appeal, that the evidence of the meeting at Beaurepaires was incapable of establishing Matthews’ involvement in a plan to murder Mrs Matthews.
However, the above evidence clearly amounts to circumstances from which it could be inferred by the jury that Matthews was able to hear the conversations between Burgess and Key and potentially the beginning of the telephone conversation between Rose and Key. Photograph 106 depicting the counter, shows that it is quite narrow and that the parties were in close proximity when these conversations took place.
In the circumstances of the evidence of Key about the agitated actions of Matthews and Burgess before he came into the office followed by the immediate statement of Burgess to Key that “It’s got to be done tonight”, it was clearly was open for the jury to infer that the Burgess statement said within the hearing of Matthews, arose out of a discussion which had occurred between Burgess and Matthews and concerned the killing of Mrs Matthews. All events thereafter were consistent with that meaning and no other meaning.
Further the conduct of Matthews telephoning his home after the statements of Burgess and part way through the time of the Rose conversation to make arrangements for the children to take them to the video shop, tends to confirm the evidence of Key and the facilitation by Matthews of the murder of his wife.
Later Matthews took his children to the video shop as planned and the murder took place during this period of absence.
Collectively these are all matters to which the jury was entitled to attach significance in deciding whether Matthews did hear the conversations and whether they tended to confirm that he was a party to a joint enterprise to murder his wife.
Therefore in my opinion, there is no fundamental flaw in the summing up and they were matters which were admissible against Matthews and properly left to the jury.