R v McKinnon
[1999] VSCA 56
•5 May 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 222 of 1998
| THE QUEEN |
| v |
| MICHAEL JOSEPH MCKINNON |
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JUDGES: | WINNEKE, P., BROOKING and PHILLIPS, JJ.A. | |
WHERE HELD: | SALE | |
DATE OF HEARING: | 5 May 1999 | |
DATE OF JUDGMENT: | 5 May 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 56 | |
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Conspiracy to commit arson - Evidence - Admissibility of record of interview - Whether evidence amounted to corroboration - Witness reliability - Whether verdict of guilty inconsistent with verdict that co-accused not guilty - Application dismissed.
Sentence - Property offences - Conspiracy to commit arson - Prior convictions - Sentence not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J. D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. W. B. Lindner | O’Halloran Davis, on assignment from VLA |
WINNEKE, P.:
I will invite Brooking, J.A. to deliver the first judgment.
BROOKING, J.A.:
In December 1996 the applicant and his wife, Mariann McKinnon, were committed for trial in the County Court on charges of burglary, theft, obtaining property by deception and conspiracy to commit arson, all charges relating to their dealings with their next-door neighbour's property. In August 1997, their co-accused, John Duncan Bowman, pleaded guilty in the County Court at Morwell to four counts of burglary, four of theft, three of obtaining property by deception and one of arson. During his plea in mitigation, Bowman indicated his willingness to give evidence against his two co-accused, the applicant and Mariann McKinnon. He admitted 21 prior convictions from ten previous court appearances and was sentenced to a total effective term of three years' imprisonment with a non-parole period of 20 months.
In September 1998, the applicant and Mariann McKinnon were presented in the County Court at Morwell. The applicant pleaded guilty to three counts of burglary, three of theft and two of obtaining property by deception, and not guilty to one count of conspiracy to commit arson. Mariann McKinnon pleaded guilty to three counts of burglary, three of theft and three of obtaining property by deception, and not guilty to the count of conspiracy to commit arson. They were tried on the conspiracy count, and the applicant was found guilty and his wife not guilty. The applicant admitted 84 prior convictions from ten previous appearances, including numerous convictions for theft, wilful or criminal damage and obtaining property by deception, and one conviction for conspiracy. His wife's prior convictions and the sentence passed on her need not be mentioned, since no question of disparity has been raised. On 10 September 1998 the judge sentenced the applicant to be imprisoned for a total effective term of two years and ten months and fixed a non-parole period of 20 months. The individual sentences were of two years six months for conspiracy and six months for each of the other eight offences. The maximum penalty was 12½ years for conspiracy and 10 years for each of the remaining offences. Now he seeks leave to appeal against conviction on five grounds:
"1.The trial judge erred in admitting evidence of answers to questions in an interview which depended upon a legal standard.
2.The verdict in the trial was inconsistent with the verdict in the trial of the co-accused, Mariann McKinnon.
3.The trial judge erred in ruling that there was evidence that was capable of amounting to corroboration.
4.That (sic) in the circumstances the verdict was unsafe and unsatisfactory.
5.That (sic) the trial judge erred in failing to warn the jury as to the dangers of acting upon the evidence of Ian Barry Foley in the absence of supporting evidence."
He also seeks leave to appeal against sentence, saying that it is manifestly excessive, the argument being confined to the sentence for conspiracy.
The Crown case was that in 1996 Bowman was living with the two accused at 154 Narracan Drive, Moe, and that the house next door, No.152, was unoccupied as a result of the illness and ultimate death of the old lady who owned it. Unfortunately the contents were allowed to remain in the house while the old lady was in hospital and after her death, and in June 1996 Bowman broke into a shed at the back of No.152 and stole a motor vehicle which a friend of hers had been allowed to store there. Then, in July 1996, the three accused entered the house next door on three separate occasions, stealing various items of property, some of which they disposed of to second-hand dealers. Then, it was said, they felt concern that the three of them had left their fingerprints inside the house they had burgled. The Crown alleged a conspiracy on the part of all three that Bowman would burn the house down shortly after 17 August 1996, after the applicant and Mariann had gone to Shepparton on their honeymoon. The Crown alleged that on 16 August 1996 Bowman decided to burn the adjoining property down that night instead of waiting until after the McKinnons had gone to Shepparton on their honeymoon. He broke in and did so. He was called as the principal witness on the trial of the husband and wife, who were charged with conspiracy in respect of the arson, and who both stood mute.
The first ground of appeal complains of the reception at the trial of "answers to questions in an interview which depended on a legal standard". This is a reference to the following passage near the end of the applicant's record of interview:
"297 Do you know what conspiracy is?
No.
298If you conspire with someone, it means that you make - you enter into an agreement to commit a certain act. Right. Where - where you and John have been discussing - - -?
Talking to us, yeah.
299 Yeah.
Yeah.
300And you've - you've reached an agreement to do or partake in a certain course of action. Do you understand that?
Sort of, yeah. I know what you mean. We were talking about it and he came to some agreement, sort of thing. Is that right?
301 Yeah.
Yeah.
302Yeah. And the agreement was to burn down the house next door on this weekend - - -?
Yeah.
303 This coming weekend.
Yeah.
304 Is that correct?
Yes, but he got a week too early.
305Yeah. And you had no problems with him doing it while you were away?
No, because we weren't there. We wouldn't have ........... .
306So ............, as I said earlier, an alibi. Yeah.
307If everything had gone according to plan? Yeah. That we had proof where we was. Is that right?
308 Yeah."
Before the jury was empanelled, counsel for the applicant submitted that most of this passage should be excluded from evidence on the ground that the interrogator had inaccurately defined conspiracy in question 298 as an agreement to commit a certain act, not a criminal act. The judge, understandably, was not persuaded that he should exclude the passage. I have no doubt that his ruling was correct and that the challenge made to it now by his counsel, Mr Lindner, should not be upheld. The lengthy written submissions prepared by Mr Lindner do not complain of the refusal to exclude the passage so much as - and this is a point not covered by the ground of appeal - the fact that the judge, as it is said, should have given the jury a direction about the proper use of the passage in the record of interview. Not only is this point not covered by the ground of appeal, but no submission was made at the trial on behalf of the applicant at the time when the application for exclusion of the evidence was made, or at any later time before the charge, or after the charge, for a direction of the kind which it is now said should have been given. The suggestion now made is that the jury might have used what appears in the record of interview, that is, the particular question, question 298, as bearing on the definition of conspiracy, and so have been misled into thinking that all that was necessary was an agreement to commit "a certain act". I regard this as a fanciful suggestion. Mr Lindner submits that the fact that after they had retired at the conclusion of the charge the jury asked for a dictionary supports the view that what was said by the interrogator in question 298 may have misled them. At the suggestion of counsel the judge asked the jury why they wanted a dictionary and, having received the answer that they were concerned about the word "conspiracy", instructed them emphatically that they were not concerned with the dictionary definition of conspiracy but with the legal definition. His Honour then proceeded to define the crime of conspiracy for the jury again, having, of course, already defined it in the course of his charge. No presently relevant exception was taken to what was said by the judge about what constituted the crime of conspiracy, either in his charge or by way of redirection. I do not think that there was the most remote danger that the jury were led, as a result of the question in the interview that has been singled out, into the belief that all that was necessary to constitute the crime of conspiracy was an agreement that a certain act be committed.
Mr Lindner also submits that the jury should have been directed that the passage I have cited from the interview could not be construed as containing an admission of the offence. In my opinion, the passage concerned was probative. Of course it is to be considered not in isolation but in the context of what is said elsewhere in the record of interview, and members of the Court have in the course of argument directed the attention of counsel to other significant passages. I think it would have been quite wrong for the judge to instruct the jury to disregard the passage in question.
I do not think that there is any substance in the point sought to be raised under ground 1. It is significant that no attempt was made at the trial to obtain the direction which it is now said should have been given.
The second ground is that the verdict of guilty was inconsistent with the verdict that the wife was not guilty of conspiracy. The argument in support of this ground extends over seven pages in the written submission of the applicant's counsel. In view of this, and having regard to the course of the oral argument, which did not, I think, significantly add to the written submission, I need not provide any further record of the submissions that were made to us. The argument was in a nutshell that, neither of the accused having given evidence or called any witness at the trial, an examination of the Crown case showed that there were no significant differences between the evidence to be used on the trial of the applicant and the evidence to be used on the trial of his wife, and that the different outcomes showed inconsistency on the part of the jury. I do not think it necessary to discuss the analysis of the evidence made by Mr Lindner and set out in his written submission. I think it is enough to refer to differences between the accounts given to the police by the applicant and his wife respectively. It was open to the jury to take the view that the Crown case as regards confessional material was sufficiently stronger as against the applicant. The relevant parts of the applicant's record of interview are lengthy: there are something like 140 questions and answers. I shall give some examples to show the differentiation made by the applicant between his wife and himself. In answer to question 183, the applicant said that, after discussion of the problem of fingerprints in the old lady's house as a result of the burglaries there, someone said, "Oh, well, we'll have to get rid of it, we'll have to burn it down." While in the course of the interview the applicant did on a number of occasions give answers implicating his wife by suggesting that she was a party to the discussions about the burning of the house, and was encouraging Bowman to set fire to it, there are a number of passages which suggest that she was not present during part of the discussion, and that she did not encourage Bowman. So, the applicant said that his wife was present only for part of the time (question 206); and that she could not really be called a part of the conversation (question 209). He said that it was he who was making suggestions to Bowman about how the house could be burnt down (question 205); and that she did not have much input into the suggestions (question 208). Asked about her reaction to the discussion between the two men about the contemplated conflagration, he said, "She didn't really want to know" (question 210). A little later the applicant said that all she was saying was, "I don't want to know, I'm going to be in Shepparton, so keep me out of it". He added that she did not actually have any part in it and that she didn't really want to know about it (questions 224-8). A remark volunteered by the applicant near the end of his interview (question 319), "It wasn't all Mariann's fault, it was most - mostly us talking", could be viewed by the jury as exculpatory of the wife. The passage I have cited earlier in these reasons (questions 297 to 308), in which conspiracy is mentioned, tended to incriminate the applicant himself. The wife's record of interview made on the evening of 21 August 1996 is a good deal less damaging to her than the applicant's own record is to him. It certainly does contain some admissions, but on the whole it, like the applicant's own record as regards his wife, suggests a reluctance on her part to have anything to do with the burning down of the house. So she told the police that she had not wanted to have anything to do with the idea of burning down the house or to know anything about it, and had told the men that, and that she had said to them to stop being stupid (questions 361-3, 375-7 and 386), and that she had not wanted to be involved at all in the burning of the house (question 392).
In addition the evidence of Bowman - and I am passing now from the records of interview - incriminated the applicant more than it did his wife. In particular Bowman swore that the only time he discussed the burning of the house with the wife, she said to him, "If you're going to do something like that, don't tell me, just do it while I'm not there" (transcript 74).
The verdicts are not inconsistent. Indeed the different outcomes are not at all surprising.
The third ground is that the judge was wrong in ruling that there was evidence that could amount to corroboration. The judge told the jury that it was open to them to treat the evidence of the accomplice Bowman as corroborated by the answers of the applicant in the record of interview and by the evidence of the witness Foley of what the applicant had said to him. No exception was taken to this direction, nor was it suggested at any other stage of the trial that there was no evidence that could be treated as corroboration, and the "ruling" challenged in this ground was neither given nor sought. The only exception taken, and one which resulted in a redirection, was that the judge had told the jury that in his interview the applicant admitted that his fingerprints were in the neighbour's house, when in fact the presence of the applicant's fingerprints was only an inference from his admission that he had been in the house. The seeking of this redirection probably conceded by implication that the interview could afford corroboration. Be that as it may, I have no doubt that the judge was right in directing the jury as he did.
As regards the evidence of Foley, whom the judge allowed the Crown Prosecutor to lead after hearing what he had to say about a statement he had made to the police, in my view it was open to the jury to treat what Foley said about what both accused had said to him on about 2 August 1996 concerning the intention to burn the next-door neighbour's house down (pp.79 and 91-2 of the transcript) as corroboration. It was evidently so regarded by the applicant's counsel at the trial, and I think that the evidence could be regarded by the jury as corroborative, notwithstanding what the reluctant Crown witness, Foley, said in re-examination. It was for the jury to assess Foley's evidence.
There is indeed a separate ground of appeal - a surprising one - ground 5, which asserts that the jury should have been warned that Foley's testimony was potentially unreliable in view of his evidence that he was a schizophrenic and that he had had surgery and that he had difficulty remembering things. There are a number of things that should be said about this ground. The first is that no submission was ever made to the judge on the applicant's behalf that any such warning should be given. The second is that it would have been remarkable if any such submission had been made, in view of the fact that counsel for the applicant did not challenge in cross-examination any of the evidence given by Foley in chief. The cross-examination implicitly accepted the evidence given by Foley in chief. The next difficulty is that the essential material now said to show that Foley should have been the subject of an "unreliable witness" warning was given only on the voir dire, it not having been elicited anew during the trial. It is unthinkable that the judge should have charged the jury by reference to evidence given in their absence. If the warning now said to have been necessary had been sought, the judge, I think, would have rightly refused to give it, and in the circumstances of this trial I would have thought it surprising if he had seen fit to give it even if the evidence given on the voir dire had been repeated for the benefit of the jury. The argument before us showed that the decision not to challenge but to embrace the evidence of Foley taken by the applicant's counsel, and the decision not to seek any "unreliable witness" warning, were tactical decisions. We were told by Mr Lindner that he took the view at trial that Foley was a witness who assisted his client's case. Grounds 3 and 5 cannot succeed.
Ground 4 is that the verdict is unsafe and unsatisfactory. This argument rests upon a submission that Bowman's evidence displays inadequacies and lacks probative force, and a submission that the applicant's record of interview contains no admission of conspiracy. I have already said that in my view the judge was right in concluding that the applicant's answers to the police were capable of amounting to corroboration of the evidence of Bowman. I refer again to what appears in the record of interview with regard to the remark about its being necessary to get rid of the neighbour's house and to burn it down, in view of the fingerprints, and to Bowman's remark, according to the record of interview, "I'll do it when youse are away so no one gets the blame". The applicant admitted also that he made suggestions to Bowman about how the house should be burnt down (questions 205-208), and that he gave him ideas about starting the fire, and that Bowman said, "Leave it to me" (questions 281-3). Then there is the passage set out much earlier in these reasons in which the meaning of conspiracy is mentioned. This passage itself can be viewed as containing an admission that the applicant agreed with Bowman that Bowman should burn the house down while he himself was in Shepparton.
So far as Bowman's evidence is concerned, he swore that he and the two accused were worried about fingerprints and that they suggested to him that he burn the house down while they were in Shepparton. He also said, "We kind of agreed we kind of do it while they were up in Shepparton". He said he made an agreement with both accused that he would light the fire while they were in Shepparton. He added that he lit the fire before his companions went to Shepparton by acting on an impulse, thinking that if they were going to do it he might as well do it while they were all in there, that if one was caught they would all be caught. In cross-examination he repeated that the applicant had come to some agreement with him to burn the house down.
I am very far from persuaded that a reasonable jury ought to have entertained a reasonable doubt about the applicant's guilt. The application with regard to the conviction should fail.
That made with regard to the sentence cannot succeed. The sentence of two years six months for conspiracy is said to be manifestly excessive. The maximum penalty was 12½ years. The applicant was 24 at the date of sentence. He had accumulated 84 prior convictions as a result of coming before the court, as I think I have mentioned, on ten previous occasions, and I have already described the general nature of those convictions. His most recent conviction had been sustained only four months before the present one. He had been given much leniency in the past - almost, if not literally, the full gamut: a bond; probation; community-based orders; fines; intensive correction orders and suspended sentences. It is impossible to say that the present sentence is manifestly excessive, and I speak there of all these sentences and of the total effective sentence and the non-parole period. On the contrary, the sentence was very lenient. The application should be dismissed.
WINNEKE, P.:
I agree.
PHILLIPS, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the applications for leave to appeal against conviction and sentence are dismissed.
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