R v McLachlan
[2000] VSC 522
•27 November 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1470 of 1997
| THE QUEEN |
| v. |
| JOHN McLACHLAN |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 27 NOVEMBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 522 | |
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CATCHWORDS: Self-defence and Provocation – Whether issues should be left for jury consideration - Self-defence – Zecevic v. DPP (Victoria) (1987) 162 CLR 645; R. v. Roba (No. 2) (2000) A.Crim.R. 253 – Provocation – Masciantonio v. R. (1995) 183 CLR 58; R. v. Tuncay (1998) 2 VR 19 – Neither issue to be left to the jury – Corroboration – Principles to be applied – Matters capable f constituting.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. N. Parkinson | Office of Public Prosecutions |
| For the Accused | Ms. J. Morrish QC | Gerard Bryant & Associates |
HIS HONOUR:
At the conclusion of the Crown case, the questions of whether self-defence and provocation should be left for the consideration of this jury have arisen for determination. These matters were argued upon the understanding that the accused would not be called to give evidence.
Turning first to the question of self-defence, it was argued by the Crown that no evidential basis existed for the matter to be left to the jury. It is necessary therefore to examine the evidence upon which the defence rely in urging the contrary view. Before doing so, I should refer briefly to the relevant principles. I endeavour to set these out in a ruling reported as R v. Roba (No. 2) 2000 110 A.Crim.R. 253. After referring to the leading case of Zecevic v. DPP(Victoria) (1987) 162C.L.R. 645 and, in particular, the joint judgment of Wilson, Dawson and Toohey, JJ. I remarked (at p.254):
"It is perhaps worth noting as a starting point two statements in that judgment. First:
'Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with respect to self-defence must not rest on the accused. Since Woolmington v. DPP [1935] A.C. 462 it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused: [case cited]'."
In this case, of course, the plea is squarely raised by the accused by way of submission from his counsel.
"Secondly, in a passage at 665 their Honours, before considering the facts in that case, remarked:
'Moreover the appellant had only to raise a reasonable doubt in the minds of the jury to entitle him to succeed in his defence. As Gibbs, J. observed in Muratovic [1967] Qd. R. 15: "... the plea of self-defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge, to decide upon a plea of this kind, as upon any other question of fact, provided that there is evidence on which a reasonable jury could decide the issue favourably to the accused."'
There are a number of statements of legal principle enunciated in the joint judgment in which the majority of the judges in Zecevic's case agreed. They provide a conceptual framework against which the facts in any individual case must be considered. At 661 there is the observation:
'It is apparent, we think, from the difficulties which appear to have been experienced in the application of Viro (1978) 141 C.L.R. 88, that there was wisdom in the observation of the Privy Council in Palmer [1971] A.C. 814 that an explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.'"
Elaborating on the statements of principle, I referred (at pp.255-6) to the statement of Vincent, J. in R v Williams 2000 VSC 61.
"The instruction given by a trial judge to the jury must be directed to the issues of fact and law that can be identified as having been raised by the evidence adduced in the trial. They are neither meaningful or useful in the absence of an appropriate evidentiary framework which justifies the putting of the issues before the jury in the first place and gives rise to a duty to instruct them (inter alia) as to the principles of law relevant to the jury consideration of those issues and an obligation to relate the principles to the evidence. Where no appropriate evidentiary framework exists to which the instructions can be attached, the provision of broad statements, and the intrusion of what are in terms of the evidence irrelevant principles of law are, at best, time wasting and unnecessary and, at worst, a virtual invitation to the jury to engage in illegitimate speculation."
The setting of the events relating to this offence was the Bayswater unit of Tracy Marshall. She had arrived home on the evening of 21 June 1996 with the deceased, (Derek Jones), and Emma Stevens. Later that evening the accused John McLachlan and then Miss Kristen Ogilvie arrived.
The evidence relied upon by Mrs Morrish was, firstly, assertions by Derek Jones that he had a gun about which the CIB wanted to interview him; that someone else had used the gun to kill someone; that he was a hitman; and that he would like to kill a man named Andy (apparently an Andy Jones, a person known to Miss Marshall and the accused). This was the evidence of Emma Stevens.
The reference to being a hitman was also made by the deceased on another occasion to a Miss Carpani and the witness Elissa Aston, who had separated from the deceased in late 1992. She gave evidence that he could become violent after having a lot to drink, and that he was prone to boasting about his physical capacity and the violence that he had inflicted. He had also threatened to kill people, including her.
Some of this material was never known to the accused, but was admitted into evidence in accordance with the authority of R. v. Gibb & McKenzie (1983) 2 V.R. 155 as being capable of demonstrating a capacity for violence on the part of the deceased.
I should add that it was common ground that the accused, though stocky, was shorter and less bulky than the deceased.
In the course of her cross-examination, the witness Stevens agreed that during the course of the evening the deceased was using "smart-arse" language towards the accused (albeit she said they were both big-noting). The deceased was tipsy, but not drunk.
Although the sequence of events is not at all clear, the witness conceded that the deceased was repeating the name of the person allegedly killed with his gun (albeit not by him). He asserted he was a contract killer and had a contract to kill someone in New South Wales. The deceased was also asking the accused if he knew particular people and the accused was dismissive of them. Towards the end of that conversation, the accused referred to the deceased as "a maggot" and "a child tamperer". This, according to Miss Stevens, made the deceased a bit angry and he said twice that he had killed people before. On Miss Stevens' version, the deceased then said, "I'll fix you up" and "Now we'll see who's who". This was in the context of his going to use the telephone. On Miss Stevens' account, he returned to say the telephone was not working and sat down. (I interpolate that there was no evidence about this incident from Kristen Ogilvie.) All this had occurred in front of the accused's friend Tracy Marshall (the occupier of the unit), the witness Stevens and another friend of Tracy Marshall, to whom I referred earlier, Kristen Ogilvie, all of whom were seated in the loungeroom of the unit.
According to Emma Stevens, Tracy Marshall had at an earlier stage of the evening "mouthed" to the accused "that's the Derek that wants to kill Andy".
After the deceased had resumed his seat, the accused asked Tracy Marshall: "Can I ask him now? I can't wait for Andy." He then walked to the deceased's chair and asked if Derek knew Andy. On receiving the response "no" he said, "Wrong answer, cunt" and punched the deceased who fell to the floor. The question was repeated with the same negative response. A kick to the head followed which rendered the deceased senseless. He was subsequently dragged from the loungeroom on to the front porch and, as the evening progressed, while helpless on the ground, he was subjected to further assaults.
Mrs Morrish did not rely on the latter conversation or event, but rather sought to graft onto them the evidence of Kristen Ogilvie in cross-examination. Miss Ogilvie was the last of the persons present at the unit to arrive. On this evening she sat on the floor near the coffee table and next to Emma Stevens. Miss Ogilvie did not suffer from the disabilities which beset Miss Stevens as a potential accomplice who had mixed prescription drugs with her alcohol on this evening in an effort to "get off her face". It was unchallenged that Miss Ogilvie was sober. She described the deceased as under the influence, having slurred speech and being a bit unsteady on his feet. This is consistent with his blood alcohol reading of .180. She agreed in cross-examination that whatever the deceased was saying or doing appeared to provoke a response in the accused: that he seemed to be saying things that annoyed the accused. Both men were using rough language towards each other.
The witness also said that the accused seemed to have lost control and things escalated to the stage where it became physical. The relevant questions and answers are as follows:
"You agreed with me that whatever it was that Derek was doing, it seemed to upset John?---Yes. And Derek also appeared to be upset??---Yes. And the position is that it was a verbal confrontation first started by Derek?---Most probably, yes."
I then intervened to say:
"You say 'most probably'; do you know or don't you know?---I don't know exactly what started it, but it seemed to be whatever Derek was saying was upsetting John.
MRS MORRISH: Then there was a physical confrontation and you didn't see who threw the first punch?---No.
You told us that it looked like a fight was inevitable, a physical confrontation was inevitable and in fact a physical confrontation between the two of them occurred?---Yes.
You agreed with the proposition that whatever it was that Derek did, it appeared to provoke a response in John?---Yes. True?---Yes.
And you agreed with the proposition that things seemed out of control?---It got very hectic. What do you mean by that?---Well, they both - John definitely seemed to have lost control by then. It had escalated to the point where it became physical.
And Derek also; correct?--- He was upset too, yes."
These answers must be seen in the context of Miss Ogilvie's evidence generally and the phrase "loss of control" only has meaning in relation to what Miss Ogilvie saw and heard. The sequence of events as she described them commenced with words being exchanged between the two men. The accused was calling the deceased, quite aggressively, "a maggot" and "a dog" and grabbing him on the arm and hitting him. The deceased's response to this was: "I thought we were mates, I thought we got along."
At a time when the two other women had temporarily left the room and the witness's attention was on Emma Stevens' baby, who was in a bassinette on the loungeroom floor, she heard the accused say to the deceased: "If you are not careful, you will end up dead on the front lawn."
The next thing that occurred was the upturning of the coffee table. The witness did not see the cause of this. Interestingly, the other women then returned to the loungeroom armed with tea towels to clean up the mess. At this point Miss Ogilvie observed the deceased on his back in the hallway. The accused was over him and had hold of him. He was saying: "Do you know Andy, do you know Andy?" The deceased was replying: "I don't know him."
The three women then went into the kitchen and Tracy Marshall apparently attempted, unsuccessfully, to make telephone contact with Andy Jones. While in the kitchen Miss Ogilvie heard the voices of both men and muffled thuds.
On re-entering the lounge area, Miss Ogilvie observed the deceased on his feet struggling to extricate himself from a headlock which the accused had applied to him at about hip level.
The accused succeeded in getting the deceased out the front door and apparently pushed him onto the ground where the lawn intersects with the driveway.
The immediate order of events thereafter is not clear. Initially, Miss Ogilvie seemed to be saying that the accused was punching the deceased in the ribs and kicking him in the ribs and head, and then, while the deceased was lying on his back, grabbed him by the hair of his head with both hands and smashed his head forcefully into the concrete several times (that is, on more than two occasions). At the time of the kicking and punching he was urging the deceased to fight back, with the words: "come on, fight back, you bastard." The witness said that the kicking and punching went on for a few minutes. Time is notoriously difficult to estimate in this situation, but the evidence of the pathologist Dr Shelley Robertson was of a large number of injuries. Miss Ogilvie said it was obvious the deceased could not fight back and the accused stopped and returned inside. At no time could she recall the deceased actually punch the accused. There was some injuries to the deceased's hands which could be consistent with punches, according to Dr Shelley Robertson. The same could be said of the accused's hands which were examined by Dr Clive Sher.
In cross-examination, the witness appeared to agree that the smashing of the head on the concrete may have been first in the sequence, but nothing ultimately turns on this. She also said that it all occurred very quickly.
Subsequently, when asked by Miss Ogilvie what he would do if the neighbours sought help, the accused said: "I will just tell them that Derek took a fall. He was pissed and he took a fall off the porch". Later again, in response to a query as to what he would do if Derek Jones died, the accused said he would take care of him. According to Miss Ogilvie, he added: "I only met you tonight and you seem okay. Even if you were my best friend, if you said anything I would kill you."
The only other evidence bearing on the issue is the record of interview recorded between the accused and investigating police. The accused described himself as pretty drunk on arrival at the unit. He later agreed with the expression "half whacked". He described himself as drinking with the deceased and having an argument with him over a friend of the accused, Andy Jones, who had driven him to the unit. The record of interview continued at p.6:
"McLACHLAN: I just started drinking with him, and, and I had an argument with him.
LANYON: And what did he, what?
McLACHLAN: Another bloke it was over, a friend of mine, that had taken me there.
LANYON: Who was that?
McLACHLAN: Andy Jones.
LANYON: Andy Jones?
McLACHLAN: Yeah. And then this bloke didn't like him, or hated him or wanted to get him, or one thing or another. And I said he was one of my mates, and we got in an argument and done.
LANYON: Yes, what happened?
McLACHLAN: And we ended up out, out the front. And though he wasn't even knocked out cold or anything, he's just like a dope with his arms ..."
Later LANYON asked: "So you've had a blue with him, you reckon he what, he's unconscious out the front?
McLACHLAN: Oh, semi, yes.
LANYON: Yeah, go left here.
McLACHLAN: Like, he's like mumbling and carrying on occasionally."
At p.15 of the transcript of that interview Lanyon is recorded as saying: "When you've had this blue, right, on Friday night, did, did he have a weapon at all? Would you have a weapon?
McLACHLAN: No. No, nothing.
LANYON: Right. So what, we're just talking about throwing punches here?
McLACHLAN: Yes, just punching.
LANYON: With fists, or was it?
McLACHLAN: Nothing, no sort of weapon at all.
LANYON: No, no weapons, not lump of wood or anything like that?
McLACHLAN: No."
And later, LANYON: "Well, how, what sort of a blue was it? How many times you hit him?
McLACHLAN: I hit him a few times, but I mean, you know, like he wasn't out cold or unconscious or anything. I mean, sort of what I've done to him couldn't have - well, you know, like no one would think it would do that to him."
Later, LANYON: "And you reckon he'd been drinking and that beforehand, is that what you're saying?
McLACHLAN: Yes.
LANYON: Have you got any injuries at all? Did he land any punches on you?
McLACHLAN: No, not that, not one that really made me, not to do something like that.
LANYON: Right, but did he actually hit you?
McLACHLAN: Yeah, he threw some punches and that. But I mean, he was drunk and, you know, like most of them missed anyway, so.
LANYON: So you haven't got any marks or anything?
McLACHLAN: No.
LANYON: Give us a look at your hands. Have you got any damage to your hands at all? What's, a couple of little cuts and that?
McLACHLAN: Yeah, that's all.
LANYON: Yeah, is that from blueing or?
McLACHLAN: Yeah.
LANYON: Yeah, is that from this?
McLACHLAN: Yeah."
The informant, Detective Acting Senior Sergeant Ian Lanyon confirmed that the accused was cooperative in giving his account of events.
It is clear from the passages that I have quoted that the accused himself never claimed that he believed what he did was necessary in self-defence. The tenor of the interview, scant though the material may be, is to the contrary. The man with whom he is engaged in a fight is "a dope with his arms" and was drunk. Nor in his statement to Miss Ogilvie later was there any such suggestion; rather, the accused would tell any inquiring authorities that the deceased was "pissed and fell off the porch".
In so far as the deceased was bragging about his role as a hitman, the exchange between the two men had the accused far from intimidated. Indeed he called the deceased a "maggot" and "a child tamperer". According to Miss Ogilvie, he also said at one stage: "If you're not careful you will end up dead on the front lawn."
Even if the evidence of Miss Aston and Miss Carpani, and the evidence of the conversations before the arrival of the accused could be regarded as showing a capacity for violence by the accused, the ultimate consideration must be the actual events of this evening.
The evidence of Miss Stevens was of threats by the deceased, followed by an unsuccessful telephone call, followed by the deceased sitting in a chair. On her account, the threats had gone nowhere and the deceased was attacked by the accused and rendered helpless virtually immediately.
The evidence of Miss Ogilvie is of the accused initially punching the deceased and then the uttering of a threat towards him. She did not see the struggle commence, but she saw it conclude when the deceased was attacked while lying helpless on the ground.
The words said to be used by the deceased cannot be extracted from their context and viewed in isolation in the course of constructing some form of defence pastiche of the evidence. The law has not yet reached that level of artificiality. To adopt the words of Vincent, J., there is no appropriate evidentiary framework which justifies the placing of the issue of self-defence before this jury.
I now turn to the issue of provocation. The applicable principles were discussed, for example, in Masciantonio v. R (1995) 183 C.L.R. 58. At pp. 66 and 67 of that judgment the majority of the Court, Brennan, C.J., Deane, Dawson and Gaudron, J.J. said this:
"Homicide which would otherwise be murder is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self control. The provocation must actually cause the accused to lose self control, and the accused must act whilst deprived of self control before he has had the opportunity to regain his composure.
It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death.
The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.
However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self control and act in the manner which would encompass the accused's actions."
Later in that judgment the majority stated the test to be applied in determining whether provocation should be left to the jury. They did so in these terms:
"It is whether on the version of events most favourable to the accused, which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense".
The issue of provocation has most recently been revisited by the High Court in Green v. The Queen (1999) 161 A.L.R. 648, which involved an examination of provocation in terms of s.23 of the Crimes Act 1900 New South Wales. That decision, when examined, in effect reaffirms the Masciantonio principles. Other recent decisions to which I was referred is R v. Tuncay (1998) 2 V.R. 19 (see in particular the judgment of Hedigan, A.J.A. at pp.30-31, and R v Abebe 2000 VSCA 148.
The evidence bearing on the issue of provocation in this case is the same as that which is relied upon by the defence in relation to self-defence.
It was the Crown's submission that the evidence fell far short of demonstrating that the accused was provoked and lost his self control. The accused himself spoke merely of an argument about a friend, namely Andy Jones, which ended up in a fight.
The version of Miss Stevens was of an inquiry by the accused whether the deceased knew Andy Jones and, upon receipt of a negative response, the unleashing of a violent attack upon the deceased.
The witness Ogilvie did not hear anything other than the threat of the accused to the deceased before the upturning of the coffee table, although she did see some violence emanating from the accused towards the deceased before that time.
The Crown submission is that not only is there no evidence of provocative words or conduct, there is no evidence of loss of control. Further, in all the circumstances, no jury might fail to be satisfied beyond reasonable doubt that an ordinary person would not lose self control and form an intention to kill or to cause really serious bodily injury.
The defence relied on what it termed "the mood" in the flat, (and I take this to include the claims of the deceased to possess what might be termed a propensity for violence); the evidence of Emma Stevens, that she was frightened by what was being said; as well as her evidence of the assertion by the deceased "I'll fix you up. We will see who is who" in the context of making a phone call, (albeit her evidence is that it was not successfully made and the deceased resumed his seat in the loungeroom). These words and the attempted telephone call were said to be the actual provocative conduct causing loss of self control by the accused. It was put that those words had to be seen, not in isolation, but in the context of what had transpired up to that point. Even the threat "If you are not careful you will end up dead on the front lawn" was invoked by the defence as representing an effort by the accused by way of verbal threat to stop the deceased doing what he did, (whatever that may be), before violence ensued.
I was referred to a number of authorities by Mrs Morrish on the issue of provocation. Some I have already mentioned. They also included R v. Moffa (1977) 138 C.L.R. 601; Van Den Hoek v. The Queen (1986) 161 C.L.R. 158; and R v. Roche (1988) W.A.R. 278.
In essence, all of the cases cited involved the application of the principles of provocation to individual fact situations.
It is significant, although not conclusive, that the accused never asserted any loss of control from any provocative act, verbal or otherwise, of the deceased towards him.
In his police interview he speaks of having an argument with the deceased because of the deceased's antipathy towards his friend Andy Jones. The evidence of any threat toward the accused, by the deceased which the accused did not claim in the interview and which, in any event, petered out, is the evidence pointed to by the defence as constituting the provocative conduct based upon the foundation of the previous assertions by the deceased of his capacity for violence.
I ignore for the purposes of this submission the evidence of the accused's aggressive and fearless reaction to the deceased's earlier bragging and the fact that, on Miss Stevens' version, the banging of the deceased's head on the concrete occurred after a considerable interval of time from the initial events.
Even assuming that the deceased's words, taken in context, might ever constitute provocation (a proposition I reject), and even if it could be said that the accused might have lost self control as distinct from being annoyed or angry, I have no doubt that a jury would be satisfied beyond reasonable doubt that the words attributed to the deceased, even when linked with the preceding events to which I have referred, would not have provoked an ordinary person to intentionally kill or inflict really serious bodily injury on Derek Jones. In applying the test enunciated in the Masciantonio case I have therefore concluded that the issue of provocation should not be left to this jury.
Corroboration. On the issue of the corroboration of the evidence of Emma Stevens, the principles are well-known. It is the application of them that occasions difficulty. In R v. Pisano (1997) 2 V.R. 342 Phillips, C.J. referred to them at p.347 of his judgment. He said:
"It is appropriate, I think, to now refer to the basic principles of the law touching corroboration as they appear from the leading authorities.
The first of these is R v. Baskerville [1916] 2 K.B. 658 which involved a special court of five judges. Part of the judgment in that case reads at 667:
'We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.'"
As to the evidence of an accomplice, the court had earlier observed at 665 that it was unnecessary that the allegedly corroborative evidence confirm all the circumstances of the crime.
'... as we have already stated, that is unnecessary. It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime.'
In Doney v. R (1990) 171 C.L.R. 207 the High Court, citing Baskerville, observed at 211:
'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... '
Of this passage, it was said by the Court of Criminal Appeal in R v. Tadic and Gibb (unreported, 31 August 1993) at 22-3:
'... there is little doubt that the law provides that the independent evidence capable of corroborating the accomplice must itself connect or tend to connect the accused with the crime as well as that the crime was committed."
In the instant case, seeking perhaps a conservative approach, I have come to the following conclusions. The fact that the accused struggled with and struck the deceased is not in issue. Accordingly, the admissions of the accused in his interview as to a fight do not in my view corroborate the details of that altercation as related by Miss Stevens. Nor, in my view, does the blood on the rug, which is partially in the hallway, provide independent corroboration of Miss Stevens' account given the evidence of Miss Ogilvie that the deceased was on his back in the hallway while grappling with the accused and at that stage already had blood coming from his head.
The evidence of Dr Robertson of the injuries observed at post-mortem is capable in my view of corroborating the evidence of what the witness observed outside the unit, particularly in relation to the hitting of the head on the concrete. The evidence of Kristen Ogilvie is capable of corroborating Miss Stevens in relation to the incident with the wallet and PIN number and in relation to the slamming of the deceased's head into the concrete. The evidence of Ms Ogilvie is not, of course, capable of corroborating Ms Stevens' version of the sequence of events - quite the contrary.
The evidence of Ms Ogilvie is capable of corroborating the evidence of Ms Stevens that the accused had blood on his tracksuit pants and shoes, although not the time that this was observed.
The material in the accused's interview and the evidence of Miss Ogilvie are both capable of corroborating Emma Stevens in relation to later checking on the well being of the deceased and moving him into the garage. Those are the matters that in my view constitute corroboration.
In relation to the final matter, which is intoxication, I propose to charge the jury on that issue out of an excess of caution, although I will discuss with them the evidence, or lack of it, in relation to that state.
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