R v Morton

[2001] VSC 16

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No.1407 of 2000

THE QUEEN

v

RACHAEL LEE MORTON

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2001
DATE OF RULING:	29 January 2001
CASE MAY BE CITED AS:	R v Rachael Lee Morton
MEDIUM NEUTRAL CITATION:	[2001] VSC 16

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Application for stay of proceedings not granted – No positive injustice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N. Parkinson	Office of Public Prosecutions
For the Defendant	F. McNiff	Victorian Legal Aid

HIS HONOUR:

1. These are my reasons for declining to grant an application for a temporary stay. The application was made on behalf of one of two accused on the presentment. The two accused were Michael Peter Jones (“Jones”), who was charged with the murder of Rosemary Gale, and Rachael Lee Morton (“the applicant”) who was charged with assisting Jones contrary to s. 325(1) of the Crimes Act 1958. When the charges were listed before me, I was told by Mr Brustman on behalf of Jones and Ms McNiff on behalf of the applicant that both wished to apply for separate trials. Mr Parkinson for the Crown told me that the Crown consented to separate trials, and was ready to proceed with the trial against the applicant. It was in those circumstances that Ms McNiff applied for a temporary stay of the trial against the applicant until after the hearing of the trial against Jones.

1. It was put by Ms McNiff that to permit the trial against the applicant to proceed before the trial against Jones would be grossly unfair and prejudicial to the applicant.  Mr Brustman indicated that Jones was content that the trial against him proceed first.  It was common ground that the Crown proposed to call the applicant to give evidence at the trial of Jones, whatever the order of the trials.  Mr Parkinson opposed the granting of a stay.

1. I will shortly set out the background facts.  On Easter Monday, 5 April 1999, the police were called to the home of the applicant at 4 Sherman Street, Forest Hills and there found the body of Rosemary Gale. The deceased had been for many years in a de facto relationship with Jones.   The deceased and the applicant had become friends through working together at a legal brothel. Jones, the deceased and the applicant spent most of the Easter weekend together at 4 Sherman Street.  During that time, there was some drug taking and some sexual activity involving the three.  During the Sunday, there had been a period of arguing involving the three, and the acquisition of heroin.  The deceased died on the Sunday evening.  The accounts given by the applicant and Jones to the police on the Monday as to how the deceased met her death differed.  The applicant gave an account of Jones threatening the deceased and the applicant, then assaulting and strangling the deceased, then making the applicant assist him in various ways.

1. One element of the charge of “assisting an offender” is that the principal offender must be shown to have committed a serious indictable offence.  The charge against the applicant spelt out that Jones had committed murder.  The Prosecution was accordingly required to show, as against the applicant that Jones had committed murder.  Ms McNiff put to me that the applicant desired to controvert that allegation.  Clearly the applicant is entitled to do so.  Further, the evidence which can be led on the trial of the applicant, as distinct from evidence which might be led in a trial against Jones, including as to the issue of whether the principal offender committed the offence alleged, must be limited to evidence which is admissible only against the applicant.  See R v Welsh (1998) 105 A Crim R 448.

1. Ms McNiff argued that the applicant was not effectively able to controvert the allegation that Jones had murdered the deceased, if her trial preceded that of Jones.  She put to me that there might be a basis for controverting guilt of murder on the basis of insanity (mental impairment) or automatism or provocation or absence of the requisite intent.  It was put that assessment of the strength of any basis was difficult for an accused in the position of the applicant to make, when the trial of the principal offender was to be held after the applicant.  Such an assessment might not have to be made, but could be made more satisfactorily, if the trial of Jones was held first. It was put that, forensically, the applicant would be in a difficult position in more than one respect if her trial proceeded first.  She could not effectively lead evidence supportive of any position in a way comparable to the principal offender.  Further, arguments put as to duress on behalf of the applicant would potentially be undermined by any serious effort to contend that Jones was not guilty of murder.

1. It was also argued that there was a significant potential for inconsistency of outcomes.  It was said that it would be inappropriate for the applicant to be found guilty of assisting an offender who was guilty of murder, and then for the offender to be found not guilty of murder.  Ms McNiff referred me to R v Rowley (1948) 32 Cr. App. R. 147. Rowley was charged as assisting offenders who had committed receiving offences. He pleaded guilty and was sentenced. The persons named as offenders were tried later. They were acquitted. It was accepted by the Crown that the procedure was “quite irregular”. The Court of Appeal quashed the conviction, and indicated it was always improper to accept a plea of guilty in such circumstances.

1. Rowley was the subject of adverse comment and not followed in Deane (1996) 88 A Crim R 36 and Lowrie (1997)100 A Crim R 1. In Deane, Cox CJ said at 39: “It does not follow that the acquittal of the principal offender at a subsequent trial renders the accomplice’s conviction on his own plea or at an earlier trial unsustainable…”.

1. Rowley was not, and indeed no other case was, referred to in Donald (1986) 83 Cr. App. R. 49.

1. The Donalds were convicted of assisting a man named Wilson, a principal offender in a robbery.  Wilson had not been tried when they were convicted.  He was tried and convicted later.  The Court of Appeal noted the possible perils including of injustice in permitting a trial on a charge of assisting an offender before a trial of the offender. It also said that there is no authority for the proposition that the prosecution should not proceed as it did.  It also noted the cogent evidence led against the Donalds as to the commission of the principal offence by Wilson.

1. Section 325(3) of the Crimes Act provides:

(3) A person charged witn an offence against sub-section (1) may be indicted or presented and convicted together with or before or after theprincipal offender and whether or not the principal offender is amenable to justice.

1. No authority was cited to me to support the proposition that I have the power to order a stay of the trial of the applicant until after the trial of Jones, or as to the criteria I should apply in exercising any such power.  I am nonetheless satisfied that I do have the power, and that I should exercise it if I was satisfied that positive injustice would be caused by a trial of the applicant before a trial of Jones.  I have adopted that approach based on what was said by Hunt J, in the context of directing separate trials, in Farrell & Cotton (1990) 48 A Crim R 311, accepting what was said by Priestley JA in Oliver (1984) 57 ALR 543 at 547.

1. I am not satisfied that positive injustice would be caused by a trial of the applicant before a trial of Jones.  I have reached that conclusion after reviewing the evidence which the Prosecution is likely to be in a position to lead in trials of the applicant and Jones.  I have noted, put shortly, that: there appears to be cogent evidence admissible against the applicant that Jones murdered the deceased; there appears to be no obviously strong position to be taken, whether on behalf of the applicant or on behalf of Jones, to point to a reasonable possibility otherwise; and there appears to be a strong case as to duress going to the element of “reasonable excuse” arguable on behalf of the applicant. Further, it appears to me that, if the applicant when being questioned in the trial of Jones, had not herself already been tried, there would be a significant potential for her position being compromised as to questions posed which carried a risk of self-incrimination.

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