R v Murch; R v Logan

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MURCH; R v LOGAN
[2014] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Parker)
11 June 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL
Appeals against convictions for attempted murder - where the two appellants were jointly tried - where key evidence at trial was that of an accomplice.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - OBJECTIONS
The appellant, Murch, advanced a ground of appeal asserting he was wrongly prevented from cross-examining co-accused, Logan, about suggested collusion between Logan and accomplice - whether the trial judge erred in refusing to allow cross-examination of the co-accused.
Held: Judge erred in refusing to allow cross-examination of co-accused - proposed questioning was relevant and admissible.

CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - GENERALLY
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES - GENERALLY
The appellants each advanced a ground of appeal concerning the directions on corroboration of the accomplice's evidence - whether directions in relation to corroboration were in error - whether trial judge incorrectly classified items of evidence as capable of being corroborative when they were not - whether directions were confusing - whether trial judge failed to identify what evidence was available as corroboration in the case against each accused.
Held: trial judge described items of evidence as being corroborative where they were not - trial judge failed to deal separately with corroborative evidence as it related to each appellant - the directions had the potential to leave the jury with the misleading impression that the accomplice's evidence so far as it implicated both accused was amply corroborated - defects and errors in the corroboration directions robbed the warning of its force.

EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - WAIVER OF PRIVILEGE
The appellant, Murch, advanced a ground of appeal raising an issue of disclosure - whether trial judge erred in upholding co-accused's claim of privilege over file notes in the possession of the Director of Public Prosecutions which recorded two conversations with the co-accused's representative.
Held: ground not made out - the circumstances in which the conversations occurred established that the documents were privileged - the prosecution's duty of disclosure does not extend to documents which are the subject of claim of legal professional privilege - no implied waiver by co-accused in giving evidence which implicated Murch.
Further grounds of appeal were advanced - whether trial judge erred in failing to leave self-defence to the jury - whether trial judge erred in his directions on onus of proof.
Held: grounds of appeal not made out - there was no evidence on the basis of which a defence of self-defence could be left to the jury - at two points the directions on onus were technically incorrect, but these would not have diverted the jury from the correct approach which was clearly outlined and reiterated by the trial judge.
Held (the Court): grounds relating to corroboration directions and Murch's ground relating to admissibility made out - no room for application of the proviso - appeals allowed.
Evidence Act 1929 (SA) s 18; Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
Carter v Managing Partner, Northmore Hald Davy & Leake (1995) 183 CLR 121; Doney v The Queen (1990) 171 CLR 207; Jenkins v The Queen (2004) 79 ALJR 252; MWJ v The Queen [2005] HCA 74, (2005) 80 ALJR 329; R v Baskerville [1916] 2 KB 658; R v Reci (1997) 70 SASR 78, applied.
R v Webb & Hay (1992) 59 SASR 563, discussed.
Browne v Dunn (1893) 6 R 67; Khan v The Queen [1967] 1 AC 454; Lobban v The Queen [1995] 1 WLR 877; Lowery v The Queen [1974] AC 85; Makin v Attorney-General for New South Wales [1984] AC 57; Mann v Carnell (1999) 201 CLR 1; Mawaz Khan v The Queen [1967] 1 AC 454; Murdoch v Taylor [1965] AC 574; Osland v Secretary, Department of Justice (2008) 234 CLR 275; R v Darrington & McGauley [1980] VR 353; R v Hartley [2007] 3 NZLR 299; R v Lindsay (1977) 18 SASR 103; R v Miller & Ors (1952) 36 Cr App R 169; Subramaniam v Public Prosecutor [1956] 1 WLR 965, considered.

R v MURCH; R v LOGAN
[2014] SASCFC 61
Court of Criminal Appeal: Vanstone, David and Parker JJ

THE COURT: Brett Matthew Murch (Murch) and Russell James Logan (Logan) were charged for that they, on 12 March 2010 at Mount Barker, attempted to murder Leonard Gjeka (the target). After a trial in the Supreme Court with a judge and jury both were found guilty.
Each has appealed against his conviction. The appeal of Murch was heard first and that of Logan subsequently, but by the same bench. There is much common ground in the appeals and so it is convenient to dispose of them together.
Murch takes two main grounds. He argues that he was wrongly restricted in his cross-examination of the co-accused, Logan. He further argues, as does Logan, that the corroboration warning delivered by the judge in relation to the principal prosecution witness, Leslie Graham Richards (Richards) was flawed in a number of respects. Both appellants take one or more subsidiary grounds. Several of the grounds were not the subject of an application for permission to appeal prior to the hearing of the appeal itself. Since the grounds were few in number and seemed to be reasonably arguable it was convenient to hear full argument on them all. In the event we determined to grant permission on all grounds to the extent necessary.
For the reasons which follow we are satisfied that both appeals should be allowed, both convictions quashed and that in each case we should direct a retrial. Whether there will be another trial remains for the Director of Public Prosecutions to determine.
Background
The prosecution case against the appellants was one of joint enterprise. It relied heavily on Richards’ evidence. Richards gave evidence that he himself had been approached by two men asking him to kill the target for a price. Richards said that he was indebted to the two men as they had supplied him with drugs. Their offer was both to pay him and forgive his debt. He was prepared to do as asked. He said he made various preparations to perform the contract, which included going to the target’s house dressed as a Salvation Army officer and knocking on the door, both to familiarise himself with the layout and to confirm the target’s identity. Days later, on 7 February 2010, Richards embarked on the journey back to the house planning to lure the target from within by turning off the power to the house, and to kill him. The plan failed when the target emerged, armed, to confront Richards and fired shots at him. Richards fled. Richards was helped in some of the preparations made for this enterprise by one Powell, whose evidence supported that of Richards in some respects. Powell went with him to Mount Barker on 7 February. Richards said that after this fiasco he abandoned his plan to fulfil the contract, but that he had told his associate, Murch, about it and that Murch expressed ongoing interest in taking it on. Richards gave to Murch a firearm which had been provided by the two men. There was evidence that Richards’ Holden Commodore motor vehicle was used for the journey to Mount Barker on 12 March. It seems that this vehicle was customarily started by use of a screwdriver in the ignition.
In February 2012 Richards was found guilty by verdict of a jury of conspiring to murder the target. By that time Richards had already given statements to police concerning his own involvement and that of the appellants in plans to kill the target. Richards was sentenced to nine years imprisonment. The sentencing judge indicated that, but for Richards’ undertaking to give evidence against Murch and Logan, the sentence would have been 16 years. The dates encompassed by that conspiracy charge and the facts found by the sentencing judge indicate that the conspiracy continued until 11 March 2010, that is, the day before the conduct giving rise to the convictions now under appeal. In his summing up the judge directed the jury that Richards was an accomplice.
It is convenient to deal first with Murch’s complaint which concerns a ruling made during the trial upon an objection by Logan’s counsel to questions put to Logan by Murch’s counsel.
Ground taken by Murch – refusal to allow certain cross-examination of the co-accused, Logan
This ground asserts that counsel for Murch at trial, Mr Vadasz, was wrongly prevented from cross-examining the co-accused, Logan, on certain matters and that the judge erred in refusing Mr Vadasz’s application to recall Richards for further cross-examination.
In essence, Mr Vadasz wished to try to demonstrate recent collusion between Richards and Logan to exculpate Logan and implicate Murch. He sought to do so by pointing to a marked change in the extent to which Richards implicated Logan and a complementary alteration to Logan’s account of his own involvement.
Although these two complaints tended to merge, both in the argument at trial and upon the appeal, we consider them to be two separate matters and propose to deal with them in that way. In order to explain the potential relevance of the cross-examination proposed by Mr Vadasz it is necessary to traverse a good deal of factual material, some of which was not before the jury.
Richards’ position prior to trial
In July 2010 Richards gave a detailed statement to police which was taken over two days. It ran to more than 50 pages. In that statement he explained the genesis of the plan to murder the target, how he himself had made extensive preparations to do so and had embarked upon an attempt on the target’s life and how Murch and his co-accused, Logan, had subsequently prepared to make their own attack on the target and had apparently carried it out. In his account it was primarily Murch whom he painted as the driving force behind the later plan to fulfil the contract on the target’s life.
Richards described an afternoon not long before 12 March when Murch and Logan had spent time on Logan’s computer producing what Logan later told him were Telstra pamphlets. He said he overheard Murch and Logan discussing how, in advance, they would put Telstra pamphlets in letterboxes in the area of the target’s home and that, on the day, they would dress as Telstra workers so as not to arouse the target’s suspicions. Richards further described both men asking to borrow Richards’ car on the morning of 12 March and returning at about 1 o’clock on that day when Murch claimed to have shot and killed the target. He related that Logan had reported that he had heard three shots from his position in the car parked down the street.
Richards asserted that, hearing this, he told the two men to leave his house. Later that day, he received a telephone call from them advising that they were at the OG Hotel. He did not specify who actually made that telephone call. His statement records that when he attended at the OG Hotel, Murch and Logan pulled out a large black bag from his, Richards’, car and that Murch asked him to get rid of it. He said that “they” then said that they were going to book into a motel, mentioning the Rydges Motel in Adelaide. Richards said that later that day he went to the Rydges Motel and there saw the men who had allegedly placed the contract on the target’s life. They said they would not be paying money on the contract since the target had not died.
There, he also saw Murch and Logan. He said he witnessed an argument between them, Logan expressing annoyance that he had been misled by Murch as to what had occurred at the target’s front door and as to the lack of success of the attempt.
Richards’ statement recorded that on 15 March Logan accompanied him to Richards’ son’s house where the black bag had been stashed. It was retrieved for the purpose of disposing of it. He said that he and Logan went to the banks of the River Torrens where Logan buried the .357 Magnum firearm, used in the 12 March attempt. Later Logan told him that he had burned the bag. Richards recounted that some days later Logan had taken him to Elizabeth where they had buried a shotgun and two other guns in a location close to a railway line.
On the account of events given by Richards to police there was little room for argument that Logan was not part of a joint enterprise to kill the target.
Richards’ stance at trial
At trial there was a marked variance in the extent to which Richards implicated Logan. For example, in his evidence Richards said it was Murch who expressed interest in “doing the job”. Richards did not say in evidence that Logan was involved in producing false Telstra pamphlets on the computer. Then, in evidence, Richards did not implicate Logan in the distribution of the Telstra pamphlets. In evidence Richards did not say that the two men had borrowed his car on the morning of 12 March. He related that upon the return of the two men Murch told him that the target was dead, but he described Logan’s demeanour as “pretty disturbed”. In relation to the meeting with Richards at the Rydges Motel, Richards described Murch only as being furious upon learning that no money would be paid on the contract. He did not describe Logan expressing annoyance that he had been misled by Murch. Richards said he could not recall Logan’s reaction at all. After the conclusion of Richards’ examination the case against Logan was significantly weaker than it stood on the papers.
Conduct of Murch’s defence
Counsel for Murch at trial, Mr Vadasz, chose not to cross-examine Richards on such of his statements to police implicating Logan as had not been repeated by him in the witness box. That is understandable since, although the variances might have reflected badly on Richards’ credit, in further implicating Logan, Murch’s counsel might have incidentally further implicated his own client.
Because Murch appeared first on the information he was called upon to present his case before the case of Logan. As already observed, Murch did not give evidence. Neither did he call any evidence.
Logan gave evidence in his own defence. In evidence-in-chief he said that not long before 12 March he moved into Richards’ house. At the time he was working as a long haul driver. When he wasn’t working he would sometimes run errands for Richards using Richards’ car. He had a computer at the house. He said the computer would remain at Richards’ house when Logan was absent, as collateral for drugs, which he would get from Richards on credit. It would be used by a number of other people who were either staying there or visiting. He said he did not ever use the computer to make any search with respect to Telstra or compile any “Telstra documents”.
Logan said that on the morning of 12 March he was asked by Richards to drive Murch “up the hill”. He agreed. He and Murch left mid morning. Murch directed him to a position at the end of a suburban street in Mount Barker. Logan said that Murch went to the boot, took out a hand gun and put on a vest. He walked away. Then, as he sat in the car, Logan heard three gunshots. He had not been expecting anything like that and he “freaked out”. He decided not to stay there. At that stage Murch came running back to the car and they drove away. During the journey back to the city Logan said he asked Murch what had happened but he was told nothing. They went back to Richards’ house where he heard Murch tell Richards “I’ve shot him”. Richards asked Logan “Did he?” and Logan replied “I heard three gunshots”. Richards told them not to stay at his house but to go to the OG Hotel and that he would meet them there.
Murch and Logan proceeded to the OG Hotel and later Richards and a woman joined them there. Richards gave them several hundred dollars to pay for a motel room. He also took the black bag containing the gun from his, Richards’, car. Logan said that he and Murch then proceeded to the Rydges Hotel and met again with Richards and the woman. At that point Logan said he demanded to know what was “going on”.
Logan said that on the following day he and Richards went to a house not far from the River Torrens from which Richards took a suitcase. He went with Richards to the riverbank where he buried a handgun. They also drove to a location near the Elizabeth South train station where they disposed of other firearms.
On the following day police attended at Richards’ house. Logan said he was taken to Port Adelaide Police Station and interviewed. He said he told police that he had been in the city in Hindley Street on the previous morning. He told the jury he had lied to police because he was scared and that he had told police the story that Richards had instructed him to tell.
Vadasz’s proposed questioning
In his cross-examination by Mr Vadasz, Logan admitted that he had told additional lies to police about his whereabouts. He was questioned as to why he had not been truthful with police having regard to his claimed lack of involvement in the shooting. He was questioned about his having been in the Adelaide Remand Centre for nearly 10 months in 2010 and his ability to communicate with other prisoners even in other parts of the gaol. (There was evidence that Richards too had been in custody during this period.) It was suggested to Logan by Mr Vadasz that Richards had “moved the focus” away from Logan and towards Murch. Logan agreed that he knew what Richards had said in his statements. Counsel for Logan then objected to the line of questioning. The jury left the courtroom. Mr Vadasz explained to the judge that by use of Richards’ statements and, presumably, by comparison with Richards’ evidence he wished to demonstrate that Richards had gone from directly implicating Logan to barely implicating him and that this had provided scope for Logan himself to abandon his account to police of his movements and tailor a new story to fit in with that of Richards. Mr Vadasz submitted to the judge that he wished to explore the possibility that Logan and Richards had conferred together before the trial to plan for their parallel changes of story. He wished to implicate both Logan and Richards in a plan to mislead the Court by implicating Murch and largely exculpating Logan.
Mr Mead SC, for Logan, objected on the basis that Richards had not been cross-examined by Mr Vadasz about his earlier statements and counsel should not be allowed at this point to “cross-examine that material back in”.
The judge’s decision
The judge heard quite extensive submissions in support of the line of questioning proposed by Murch, and from Logan’s counsel, resisting it. Curiously, the prosecution offered no assistance on the application of the rules of evidence to the situation. The judge took time to consider his decision and then, giving reasons, upheld the objection. In essence the judge reasoned as follows. He was not persuaded that the proposed questioning was relevant. If the evidence intended to be adduced – which he described as “out of court hearsay allegations by Richards” – had any relevance, then it was outweighed by prejudice to Logan. Even if Richards were to be recalled, the questioning was likely to result in “irretrievable prejudice” to Logan, who had made his decision to give evidence on the basis of the state of the evidence “at the close of the Crown case and at the close of Mr Murch’s case”. The judge observed that “the course was set” when Murch’s counsel chose not to cross-examine Richards on his earlier statements. The judge also refused to allow further cross-examination of Richards.

There can be no doubt that the judge faced a difficult decision at a late stage in this lengthy trial. Unfortunately we consider that the judge’s decision was in error.
In our view the questioning had the potential to elicit relevant material undermining the credit of both Logan and Richards, and weakening the case against Murch. Whether or not Richards had been cross-examined on his earlier statements was something of a side issue because, until Logan gave evidence, the possibility of collusion was not apparent. However, judging on the transcript of argument and the ruling, it seemed to assume the status of an important factor in the decision making process. On the case theory being advanced by Mr Vadasz the coincidence of parallel changes of story by Richards and Logan allowed Logan to put forward an account which accommodated those aspects of the prosecution case which placed him in Murch’s company. At the same time Logan’s new position substantially strengthened the case against Murch by supporting Richards’ evidence. Without knowledge of Richards’ earlier position Logan’s evidence might have been considered by the jury to be plausible. However, the parallel changes of story, if known, could suggest collusion prior to trial between Richards and Logan and thereby could further call into question Logan’ credibility and also that of Richards, in turn undermining the prosecution case.
There is an analogy, although imperfect, between the use Mr Vadasz sought to make of the parallel changes of story and the use made of out of court statements by joint defendants in Mawaz Khan v The Queen [1967] 1 AC 454. There the prosecution sought to use those out of court statements, which set up the same, demonstrably false, alibi, as evidence of a joint attempt to fabricate an exculpatory position. So viewed, the statements could constitute evidence against both defendants.
Both that case and the current one involve quite unusual circumstances. There, it was the correspondence of the false stories which led to the expanded use of the statements. Here, it was the parallel shifts of stories which did so. Before allowing cross-examination on Richards’ police statements there would need to be a real prospect of demonstrating collusion; otherwise the trial could become sidetracked and the jury confused. However, we consider that this was a clear case and Murch was entitled to attack the credit of both Logan and Richards by this means.
On any view Richards was intimately concerned in the genesis of this attack on the target. The reasons which usually justify the need for a corroboration warning in respect of an accomplice’s evidence were very much live issues in relation to him and his evidence. Accordingly we consider that the questioning concerned a fundamentally relevant topic.
Was there a discretion to disallow the questioning? The cross-examiner may ask any question of a witness which is relevant to the issue: Cross on Evidence (8^th Australian ed, 2010) at p.620, [17500] citing Haigh v Belcher [1836] 7 C&P 389; Tennant v Hamilton [1839] 7 Cl&Fin 122 (House of Lords). In R v Miller & Ors (1952) 36 Cr App R 169, Devlin J stated that the general discretion to exclude evidence which is more prejudicial than probative applies where the evidence is tendered by the prosecution, but not where the defence seeks to elicit it. He said (at 171):
No such limitation applies to a question asked by counsel for the defence. His duty is to adduce any evidence which is relevant to his own case and assists his client, whether or not it prejudices anyone else.
That statement was referred to with approval by the Privy Council in Lowery v The Queen [1974] AC 85. That case concerned the admissibility of expert evidence sought to be adduced by Lowery against his co-accused, King. The evidence bore on the respective personalities of the two accused men. Having found that the evidence was admissible, Lord Morris of Borth-y-Gest, who gave their Lordships’ judgment, said (at 101):
It would be unjust to prevent either of them from calling any evidence of probative value which could point to the probability that the perpetrator was the one rather than the other.
He referred to the principle recognised by Lord Herschell LC in Makin v Attorney-General for New South Wales [1894] AC 57, 65, to the effect that there was no reason of policy or fairness which would justify or require the exclusion of evidence relevant to prove the innocence of an accused person.
The same point was made in Murdoch v Taylor [1965] AC 574. There, one accused had given evidence against the other and the question arose whether there was any discretion to exclude evidence sought to be called under the equivalent of our s 18 Evidence Act 1929 impugning the other’s character. Lord Donovan, with whose judgment Lord Reid and Lord Evershed agreed, held that there was no such discretion. Lord Morris of Borth-y-Gest, in separate reasons, also agreed. His Lordship explained (at 584) that a person who was implicated in court by a co-accused “must have liberty to defend himself by such legitimate means as he thinks it wise to employ”. His Lordship said it was for the judge to rule as a matter of law whether a person had given evidence against a co-accused and upon the relevance of the evidence sought to be adduced. However, if the ruling were that the proposed questions were relevant then the judge would not be “called on either to give or withhold any permission to put them”: at 575.
This appears still to be the English position: Lobban v The Queen [1995] 1 WLR 877 (Privy Council).
However, there does appear to be controversy, at least in Australia, about the existence of a discretion to exclude otherwise admissible evidence sought to be introduced by one accused against another. The authors of Cross refer to that controversy at [21215]. A line of Victorian authorities supports the existence of such a discretion. They include R v Darrington & McGauley [1980] VR 353. There, while accepting the entitlement of an accused to use all legitimate and relevant means open to him in defending himself, the Full Court held that there was a residual discretion. Authorities in New Zealand appear to have taken the English position: R v Hartley [2007] 3 NZLR 299 at [60] to [62].
There is only one case in this jurisdiction that bears on this issue, albeit obliquely. That case, R v Webb & Hay (1992) 59 SASR 563, was concerned with the principles relating to admissibility of evidence of bad character of a co-accused, rather than the discretion to exclude otherwise admissible evidence. However, the approach taken is instructive. There, this Court considered a complaint by the accused Webb that he had been wrongly prevented from cross-examining certain prosecution witnesses and the co-accused Hay to demonstrate that Hay had a propensity to violent outbursts. King CJ, with whom Matheson and Cox JJ agreed, referred (at 573) to the exclusionary principle preventing the prosecution from adducing evidence of bad character. His Honour went on to say:
There is no principle of law which precludes the admission of evidence of propensity or disposition of an accused person where that evidence is tendered by a co-accused in disproof of the charge against that co-accused: Lowery v The Queen [1974] AC 85 esp at 90. It is of course necessary that evidence of that kind tendered by a co-accused be relevant. It is only relevant if it tends to show that the accused whose propensity or disposition is sought to be proved, committed the crime to the exclusion of the co-accused tendering the evidence.
His Honour referred to the dangers of admitting such evidence and to the assessment of the relevance of the proposed evidence in the context of the issues at trial. His Honour found that the trial judge’s ruling to the effect that the evidence was “irrelevant and inadmissible” was correct. No reference was made to the existence of a general discretion to exclude the evidence and plainly the decision on appeal did not turn on such a discretion. It appears to us that the approach taken was to interpret strictly the rules of admissibility against the knowledge that admissible evidence could not fall to be excluded as an exercise of discretion.
The preponderance of authority appears to support the entitlement of an accused to call any evidence which is adjudged to be relevant to his defence. However, even if there were a residual discretion residing in the judge – which we doubt – there was no occasion for its exercise in the present case. The evidence had the potential not only to undermine Logan’s credibility, but also to demonstrate in Richards a will to manipulate the trial process.
If, as a result of the evidence being elicited, Logan suffered prejudice that could not be cured by direction, then the judge had, as a last resort, the power to order a separate trial. In our view that would not have been justifiable in this case.
In undertaking the balancing exercise involved in exercising the discretion which the judge plainly considered he had, he referred to the “potential prejudice to Mr Logan’s case” which could result from “out of court hearsay allegations” by Richards against Logan. The reference to hearsay evidence was perhaps misplaced. Of course the evidence of what Richards had previously said was not to be led to prove its truth. Rather, as we have outlined, the purpose was to demonstrate a shift in position by Richards. The whole point was to undermine first Logan’s, and then Richards’ credibility. Moreover, Richards had given evidence. The jury had his account. What he had said outside court was not, strictly, hearsay: Subramaniam v Public Prosecutor [1956] 1 WLR 965. There was less danger of misuse than with hearsay evidence. Richards’ police statement was plainly not available for use in an assertive sense against Logan and the jury could have been directed to confine its use.
The fact that Richards had not been cross-examined by Mr Vadasz on the relevant parts of his police statement was really of limited moment in the context of the decision to be made. Had suggestions based on the critical parts of Richards’ police statement been put to Logan it is likely that he would have acknowledged that he knew of Richards’ earlier position. He had already acknowledged frankly that he had read the statements. Mr Vadasz could have gone some way in discrediting Logan by demonstrating the parallel shifts in position without further cross-examining Richards. It was not a prerequisite to use of Richards’ statements in this way that Richards had earlier been cross-examined on them; although, had Logan not admitted their contents then counsel would not have been able to prove the statements without further cross-examining Richards. However, it should not be thought that a failure to comply with the rule in Browne v Dunn (1893) 6 R 67 precludes later contradiction of a witness or indeed making a suggestion to the jury based on a submission or theory which has not been put to a witness: MWJ v The Queen [2005] HCA 74, (2005) 80 ALJR 329.
The next point which seemingly weighed with the trial judge was that Logan had made his decision to give evidence “on the court record as it stood at the time of the close of Crown case and the close of Mr Murch’s case”. No doubt that is true. As a matter of practice, counsel acting for all accused persons are required to advise the court at the conclusion of the prosecution case whether their clients will give or call evidence in their respective defences. When Logan’s counsel announced that he would give evidence it was already known that Murch would remain mute. However, if the judge was implying that Logan had some sort of vested interest in the extent to which he was implicated at the close of the prosecution case, then this must be refuted. Very often an accused person’s position will deteriorate markedly after the close of the prosecution case. That may happen for a number of reasons. But the point is that if the evidence which Mr Vadasz sought to adduce was admissible, then it should have been heard.
The next matter to be considered is the application to recall Richards. That issue assumed more importance in the course of argument over Mr Vadasz’s questions than it did in the judge’s ruling. As we foreshadowed, we consider that that question was a separate one which was logically to be considered at the close of Logan’s evidence. At that point, had it been clear that Mr Vadasz was alleging some sort of conspiracy by Logan and Richards to manipulate the trial, then prosecuting counsel may well have sought to have Richards recalled so that such allegations could be put to him. On the other hand, Mr Vadasz might have wished to further cross-examine Richards on his police statement. Without the knowledge of the way in which cross-examination of Logan might have proceeded it is difficult to be sure how any such application should have been dealt with. However, it can be said that prosecuting counsel may well have been on good ground had she sought to have Richards recalled to answer any suggestion of collusion with Logan.
The ruling that Mr Vadasz was not able to cross-examine Logan in the way foreshadowed amounted to an error of law. Depriving Murch of his entitlement to defend himself by adducing admissible evidence amounts to an error of that quality. On that basis the appeal should be allowed unless the Court considers that no substantial miscarriage of justice occurred: s 353(1) Criminal Law Consolidation Act 1935. We cannot reach that position as we do not know how the evidence would have developed. In our view this was potentially a matter of significance. There can be no question of applying the proviso.
We would allow Murch’s appeal on this ground alone.
Ground taken by both appellants – adequacy of corroboration warning
This ground, although differently framed by each appellant, raises a similar complaint. That is that, in delivering the necessary corroboration warning in respect of Richards’ evidence, the judge erred in classifying items of evidence as potentially corroborative when they were not, and gave directions which were confusing and inadequate.
At trial there was no dispute that Richards was an accomplice and that a corroboration warning was called for. In argument upon Logan’s appeal, the Solicitor-General questioned whether this was in fact so. The terms of the charge of which Richards had been found guilty and the basis upon which he was sentenced pointed to his being participis criminis in the 12 March attempt. Richards stood to gain the forgiveness of his drug debt if the crime were completed and the jury might well have disbelieved his claim that he counselled the appellants against committing the crime. His assistance in disposing of incriminating items after the attempt was itself suggestive of earlier encouragement.
We do not consider that this was a case where it was either necessary or desirable to leave the question of whether Richards was or was not an accomplice to the jury. It was appropriate to proceed on the basis that he was and that a corroboration warning was required.
The judge embarked on such a warning. It was given in respect of both Richards and Powell, but for present purposes it is sufficient to refer mainly to the warning as it related to Richards. The judge explained the policy reasons underpinning such a warning and the reasons why Richards’ evidence needed to be approached with caution. He then defined corroboration as “evidence from a source independent of Mr Richards or Mr Powell which implicates the accused under your consideration in the crime charged by tending to show both the crime was committed and that the accused under your consideration committed it.” This definition is consistent with the classic statements regarding the nature of corroboration. In Doney v The Queen (1990) 171 CLR 207 at 211 the High Court was content to refer to the older English cases as follows:
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, per Lord Simon of Glaisdale at 758. 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 667.
Here, there was clear evidence that the target was shot. The corroborative evidence in question was, then, evidence tending to prove that one or both appellants were criminally involved in the shooting.
The judge also told the jury that it was for him to identify items of evidence which were capable of amounting to corroboration and for the jury to determine whether those items should be so regarded. No complaint is now made in relation to these preliminary directions or the definition given.
We now set out a lengthy excerpt from the summing up. We have numbered the paragraphs for ease of reference.
1.As I have said a while ago now, the direct evidence available to assist you with the actual shooting and who was involved in the actual shooting is limited and that is why I earlier gave you the circumstantial evidence direction but there are other pieces of evidence that are capable in law of amounting to corroboration of aspects of Mr Richards’ and Mr Powell’s evidence.
This direction seems to imply that the body of circumstantial evidence already discussed could itself amount to corroboration; but neither appellant has taken any point about that and so it may be put to one side.
The judge went on to say:
2.As you will note when I mention it to you, much of the evidence I now refer to can serve to corroborate some aspects of Richards’ account in the sense of lending support or some support to his credibility in a general sense. However, there is virtually no evidence that might be seen as corroborating his evidence of Mr Murch’s and Mr Logan’s involvement in the activities and conversations that Richards gives evidence of. In that respect, the Crown case is almost entirely dependent on you believing Mr Richards’ uncorroborated evidence.
In this passage the judge for the first time used the verb “to corroborate” in a way which tended to undermine his earlier definition of corroboration; because, here, he referred to corroboration of Richards’ credit in the colloquial sense of general support, but under the definition already given, such general support fell short of corroboration.
The judge then gave a number of what he called “examples” of corroboration. Again, most of them did not answer the definition he had provided; and indeed the judge in most cases pointed that out.
3.Examples of corroboration evidence. Evidence capable of corroborating Richards’ account that he went to Mount Barker for surveillance and for the purpose of digging holes can be found in the evidence of Bawden and the Safe-T-Cam data dealing with trips made along the South-eastern Freeway by Richards’ Holden Commodore and Sandy St Clair’s green car, the evidence of Sandy as to who had access to her vehicle, the fact that two spades were found at a location to which the police were taken. However, none of this evidence supports the contention that Mr Murch was involved in the spade-digging exercise. It might encourage you about Richards’ credibility that there was a spade-digging exercise but none of it helps you to say whether Mr Murch was there or not. As the defence would say, this incident of the hole-digging exercise could have been Richards and Mr Powell digging the hole alone.
4.Evidence capable of corroborating Richards’ story of dressing up as a Salvation Army worker can be found in the evidence of Mr Gjeka and Mrs Hayley Gjeka but again, this says nothing in support of Mr Murch or Mr Logan having been involved at any particular time.
5.Evidence capable of corroborating Richards’ account of the incident when he turned the power off at [the target’s home] can be found in the evidence of Hayley Gjeka and Leonard Gjeka but again, there is no support here for the Crown case as to the involvement by Mr Murch or Mr Logan at any particular time.
6.Evidence capable of corroborating the account of Richards of having been told by Mr Murch of the Telstra plan can be found in the evidence of Hayley Gjeka, P1 and P3, the two letters, the Logan fingerprint on P1, the evidence of the neighbour Ferguson, the evidence of the postal worker Hall, the Safe-T-Cam evidence dealing with the trips Richards’ Commodore and Ms St Clair’s green car made on the days just before 12 March and the CCTV evidence for 11 March and 12 March.
It will be noted that the judge did not add any qualification in this last direction which dealt mainly with the Telstra plan.
7.Evidence capable of corroborating Richards’ evidence that the Commodore motor vehicle was used for the shooting on 12 March can be found in the Safe-T-Cam data, the evidence of the neighbour Janet Crawley of the description of the car she heard and saw take off immediately after she heard the three gunshots and the evidence of Police Officer Butler who searched the area around Les Richards’ house soon after the shooting but could not find the Commodore. Again, this does not corroborate the contention that Mr Murch was in the car at the time of the shooting.
8.Evidence capable of corroborating Mr Richards’ description of the magnum as being the weapon used on 12 March can be found in the Gjeka CCTV and the evidence of Mr Turner, crime scene examiner but that does not help you as to who used the weapon.
9.Evidence capable of corroborating Mr Richards’ evidence concerning phone calls between himself and the two accused at the OG Hotel and then at the Rydges Hotel can be found in the agreed facts concerning the telephone traffic between the phone numbers, the two phone numbers that the evidence says were associated with Richards and the mobile phone number which the evidence says was associated with Mr Murch and the phone number said in the evidence to be associated with Mr Logan.
Again, in paragraph 9 there was no qualification as to the reach of this evidence in terms of its corroborative potential; nor was there in relation to items 10, 11, or 12 which follow.
10.Evidence capable of corroborating Richards’ evidence that he went to the OG Hotel and took with him a suitcase, where he met both Mr Murch and Mr Logan in the car park, can be found in the evidence of Sandy St Clair.
11.Evidence capable of corroborating Richards’ evidence that the two accused went to the Rydges Hotel after leaving the OG Hotel can be found in the evidence of Wells, the Rydges Hotel employee, P23, the Rydges receipt and the agreed fact concerning the telephone traffic.
12.Evidence capable of corroborating Richards’ evidence that Murch told him that he would leave for Mount Gambier can be seen in the agreed fact concerning the Premier Stateliner bus.
The judge went on to say:
13.Given that there are parts of Mr Richards’ and perhaps Mr Powell’s evidence that are essential to any reasoning towards the guilt of either Mr Murch or Mr Logan and which have not been satisfactorily corroborated, you should keep in mind the warning that it is dangerous to convict on the uncorroborated evidence of a person such as Mr Richards or Mr Powell.

In our view there are a number of difficulties with these directions. Having correctly defined corroboration the judge undermined that definition by describing as potentially corroborative, items of evidence which were merely supportive in a general way of Richards’ evidence. Thus the directions given were internally inconsistent, and, as counsel argued, confusing. While it can be said that the judge qualified and limited the use of some of the items, it remains true that he brought within his definition items which were not potentially corroborative. Indeed, the items of evidence described in paragraphs 3, 4 and 5 concerned Richards’ own preparations to kill the target, rather than the charge against the appellants.
Then, in paragraphs 6, 9, 10, 11 and 12, the judge made no qualification about the limited use of the evidence; these items were left as corroboration.
We consider that in this trial there was no evidence which was available as corroboration in the case against Murch. The only items that were potentially corroborative in the case against Logan were the finding of Logan’s fingerprint on the Telstra document Exhibit P1, and the evidence bearing on that document, and, arguably, Logan’s own evidence that he drove Murch to and from Mount Barker on the occasion of the shooting – and was close by when it happened – and had falsely denied having done so. We shall return to the issue of the Telstra document and the evidence bearing on it.
Items 9, 10 and 11 amount to items of circumstantial evidence which generally supported Richards’ account, but did not implicate either appellant in the crime. Therefore the directions in those paragraphs are in error.
Item 12 is problematic. Formal admissions that Murch booked and undertook a road trip to Mount Gambier could not implicate him in the crime. There was no suggestion that this amounted to flight. But anyway, whether or not Murch told Richards of his intention to depart was of no particular importance. Richards could have learned of this trip from other sources. The fact of the trip could not corroborate Richards’ claim of being told of it and whether or not he was told of it was unimportant.
Next, in paragraph 13, by his reference to “parts of Richards’ evidence … which have not been satisfactorily corroborated”, the judge may have misled the jury. It was not of course individual aspects of Richards’ testimony which required corroboration; rather, it was the thrust of Richards’ evidence which implicated each appellant in the crime. The direction in paragraph 13 suggested to the jury that while parts of Richards’ evidence had not been corroborated, other parts had been. That was incorrect insofar as the definition of corroboration was concerned. A further difficulty with this paragraph is that, as far as we can see, no part of Mr Powell’s evidence was essential to any reasoning towards guilt of either appellant.
In our view there is a real danger that the jury was left with the impression that while corroboration was necessary to avert the full effect of the warning, the evidence of Richards was substantially corroborated.
We would emphasise this observation. In the argument before us there seemed at times to be a misconception of the nature of corroboration. Corroboration need not extend to every facet of a crime. What is to be identified is independent evidence, direct or circumstantial, which supports “in a material particular” the accomplice’s evidence that the accused committed the crime: Baskerville at 667. Corroborative evidence need only be sought in respect of the issue or issues in the trial which are the subject of forensic contest: Jenkins v The Queen (2004) 79 ALJR 252, [30]-[33]. Corroborative evidence need not of itself prove the prosecution case and it need not prove anything beyond reasonable doubt: Doney at 211. Further, that an item of evidence may be consistent with both prosecution and defence cases does not necessarily rob it of corroborative effect. As Zelling and Wells JJ put it in R v Lindsay (1977) 18 SASR 103 at 122 evidence may bear a different character when viewed in relation to the prosecution case than it bears in relation to the defence case and, further:
[A]n accused person cannot, by a timely admission of facts which could otherwise amount to corroboration, deprive them of that quality …
We now turn back to the Telstra evidence. There was objective evidence before the jury that the planning for the 12 March attempt included the distribution of letters purporting to be from Telstra advising occupants of the target’s street of maintenance work in that area foreshadowed to occur on 10 March and the following days. Evidence of having received such letters was given by the target’s wife and mother-in-law, as well as by another resident of the street. The letters were delivered by a man wearing work clothing including a white hard hat, who remained unidentified. There was evidence that the letters were delivered on an evening a few days before the shooting. The letters were before the jury. Even a cursory glance would indicate how poorly composed and compiled they were. They bore the Telstra logo, but gave no address. It is to be inferred that the purpose of their distribution was to provide some sort of cover for persons who might be at the target’s property on or after 10 March.
Richards gave evidence of having discussed the Telstra letters with Murch. Richards related that on an occasion prior to 12 March just after the appellants had returned together to his house he put to Murch the following:
It’s come to my attention that you’ve gone and put pamphlets in letterboxes up in the hills.
Richards said that during this conversation Logan walked away, but Murch told him that they had gone up to the hills and put pamphlets in letterboxes and indeed had handed one personally to the target’s wife. Murch told him that he planned to go there later, dressed as a Telstra worker and had distributed the letters, in effect, to pave the way. Richards claimed to have told Murch to “leave it alone, and not to have anything further to do with the contract”. The prosecution called evidence that a Telstra logo, similar to the one shown on the letters, had been downloaded on the computer of Logan, which was found at Richards’ house. In addition, a fingerprint of Logan was found on the letter, Exhibit P1, retrieved by police from the target’s neighbour.
In our view this evidence was of great importance. It was open to the jury to conclude that the Telstra letters were an integral part of the plan to kill the target. The finding of Logan’s fingerprint on Exhibit P1 was capable of being viewed by the jury as evidence which implicated Logan in the crime. Logan explained to the jury that all the persons who came and went at Richards’ house had access to his computer, and that he might have unknowingly handled the page which found its way to the target’s neighbour. However that does not rob the evidence of its potentially corroborative quality.
Returning to the direction given on this topic in paragraph 6, the judge described the two letters and the fingerprint and some associated evidence as “evidence capable of corroborating Richards’ account of a conversation with Murch”. However, what was in need of corroboration was the inference from Richards’ evidence that it was Murch and Logan who committed the attempted murder. It was not the conversation between Richards and Murch which needed corroborating. As we have explained, if the jury accepted that the Telstra plan was an integral part of the plan to kill the target, then implicating either or both appellants in the Telstra plan would provide evidence of their part in the crime. This is a different proposition from that put by the judge.
In addition, the judge made no attempt to deal separately with the evidence as it related to each appellant. The fingerprint of Logan on Exhibit P1 did not tend to implicate Murch in the crime. It tended to implicate only Logan. The way in which all the evidence bearing on this topic was rolled into the direction in paragraph 6 tended to suggest to the jury that both Murch and Logan were implicated by this evidence. In our view this was a clear misdirection.
As can be seen, we have identified a number of aspects of the directions which were confusing, or wrong, or both. These defects robbed the warning of its force. The jury may well have been left with the impression that Richards’ evidence implicating both appellants was amply corroborated. It was not. It is unfortunate that items of evidence which merely supported details of Richards’ story found their way into those directions. We respectfully suggest that, although it can sometimes be helpful to illustrate why an item falls short of being potentially corroborative, it is generally preferable to single out only those items which tend to support in a material particular the disputed parts of an accomplice’s evidence implicating a defendant in a crime.
Both appellants have made out this ground.
Ground taken by Murch – ruling on claim of privilege made by Logan
The appellant Murch argued a ground which challenged the correctness of a ruling by the judge upholding Logan’s claim of legal professional privilege over documents in the possession of the Director of Public Prosecutions (DPP).
Argument about this matter proceeded during the trial but in the absence of the jury. The judge was told that the DPP had refused Murch’s request to produce two file notes held on the DPP file. The notes had been compiled by a DPP solicitor. They referred to two conversations had by that solicitor with counsel for Logan. It appeared that Logan’s legal representative had spoken to the solicitor about the possibility of Logan pleading guilty to the offence of assisting an offender in satisfaction of the charge Logan faced. The DPP declined to produce the file notes to Murch on the basis their content was subject to legal professional privilege claimed by Logan. Murch’s counsel indicated he proposed to issue a subpoena in relation to the material, but all counsel agreed that the matter could be disposed of without need of that procedure.
Upon the appeal Murch argued that there was insufficient material before the judge to enable a conclusion that the communications impliedly attracted legal professional privilege and that, in any event, Logan giving evidence against Murch constituted an implied waiver of any such privilege. In essence Murch contended that Logan’s act of implicating Murch in his evidence was inconsistent with his maintenance of the claim for legal professional privilege over the material.
The duty of disclosure residing in the prosecuting authorities does not extend to documents in its possession which are the subject of a claim of legal professional privilege by another: R v Reci (1997) 70 SASR 78 at 102 per Doyle J; Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121. In this case there was no contemporaneous claim by Logan that the conversations and any materials generated from them should remain confidential. However, the circumstances in which the conversations occurred in our view dictate a conclusion that they were privileged.
The next question is whether there was an implied waiver of the privilege on account of Logan’s evidence before the jury implicating Murch in the charge. That question devolves to whether there was an inconsistency between Logan continuing to claim privilege over the materials, while disclosing in evidence his position with respect to Murch: Mann v Carnell (1999) 201 CLR 1 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. A judgment about that question is to be made in the context and circumstances of the case and having regard to any considerations of fairness which they raise: Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ, Hayne J agreeing.
We do not see that there was any such inconsistency. Although the appellants were jointly charged and tried, in law their trial comprised two trials conducted simultaneously. It is to be expected that charged persons will communicate with the prosecuting authorities about forensic issues and their position in relation to the evidence against them and that is essentially of no concern to any person also charged. In Reci at 104 Doyle CJ observed that there was no unfairness in one accused dealing with the DPP on a confidential basis in relation to the criminal responsibility of that accused, although the Chief Justice added the rider that the situation might be different if the DPP were provided with material that could be used adversely to the other accused. That qualification does not pertain here.
When Logan gave his evidence against Murch he did not become part of the prosecution case. No doubt the evidence he gave was of some assistance to the prosecution inasmuch as he admitted that both he and Murch were present in the vicinity of the crime; but he was primarily defending himself, rather than attempting to implicate Murch. We consider that Logan’s conduct in giving the evidence he did was in no way inconsistent with his continued claim of privilege over the relevant file notes.
This ground is not made out.
Ground taken by Murch – failure to leave self-defence to the jury
The position of the appellant Murch, as it emerged from his counsel’s cross-examination at trial, was that he was not present at Mount Barker at the time of the shooting. No statement to police by him was led and he did not give evidence. Notwithstanding that position, Murch argues upon the appeal that there was evidence upon which basis the possibility that Murch fired upon the target but acted in self-defence should have been put to the jury.
We note that no complaint to this effect was made to the trial judge at the end of the summing up.
The evidence which Murch now argues raised self-defence came from a police officer who described damage to the front doors of the target’s home, apparently caused by projectiles. He expressed the opinion that three shots were fired through one of the doors from the outside to the inside of the house and that one shot had been fired through the door in the other direction. There was also evidence that the target had possession of a firearm and indeed had used it during the earlier incident in which Richards had presented himself, armed, at the target’s front door.
There was no evidence which narrowed the date and time upon which the shot apparently fired from within caused that damage. Officer Turner was not able to say – assuming all four shots were fired on the same occasion – what was the order of firing. Moreover, the target in both his evidence and his statement to police which was tendered said nothing of having fired a shot on 12 March.
In our view there was simply no evidence on the basis of which self-defence could have been left to the jury. In particular there was no evidence of any genuine belief in the appellant Murch as to his conduct being necessary or reasonable. Murch’s counsel argued that it was possible that the target fired first and that Murch had fired his shots in response and that that response amounted to actions in self-defence. That submission is flawed. On the hypothesis that Murch attended at the target’s house on this occasion, armed and disguised, and with the intention of fulfilling the contract on the target’s life – which is the only hypothesis that could account for Murch’s presence there – then even if the target did fire first, it does not follow that any shots returned were fired in self-defence.
In any event, a trial judge is not obliged to ignore the evidence given at trial and the issues upon which the trial is fought in order to conjure theoretical situations which might account for the events which occurred. A trial is fought on the issues joined between prosecution and defence by evidence given or cross-examination or agreement.
There is no merit in this ground of appeal.
Ground taken by Logan – direction on onus of proof
The appellant Logan argues that the judge erred in directing the jury that there was an onus resting on Logan to “raise matters” that might give rise to a reasonable doubt. It is said that this direction undermined the principle that the burden of proof remained on the prosecution.
As previously noted, Logan gave evidence in his defence. The impugned direction occurred in the course of the judge’s instructions about the evaluation of Logan’s evidence. Having told the jury that in deciding to give evidence Logan did not assume any burden of proof, the judge said this:
However, in this context and generally, I remind you again that Mr Logan, like Mr Murch, is not required to prove anything. The purpose of each of the defence cases, including in Mr Logan’s case his own evidence in court, is not to prove anything but only to raise matters that might cause you to have a reasonable doubt about the Crown proofs.
A similar direction was given a few sentences later:
So whilst on the one hand [defence counsel] submits that you should accept Mr Logan, I am obliged to direct you that you do not have to accept his evidence. He does not have to prove anything before you. All he has to do is raise matters that might cause you to have a reasonable doubt about the Crown proofs in the case.
We agree that the references to Logan being obliged to raise matters were strictly incorrect. However, this was said in the context of impressing upon the jury that there was no shift of onus and that even a rejection of Logan’s evidence would not relieve the prosecution of the obligation to prove its case. We do not consider that these two slips could have deflected the jury from the correct approach to Logan’s evidence or the case in general. The correct approach was clearly outlined by the judge and reiterated at a number of points in the summing up.
There is no substance in this complaint.
Conclusion
The appellant Murch has succeeded in the ground of appeal complaining that he was stopped from pursuing a relevant line of cross-examination.
Each appellant has made out his ground of appeal concerning the corroboration directions.
In neither case is it appropriate to apply the proviso.
Therefore the orders of the Court in each case are:
1. permission to appeal is, to the extent necessary, granted.
2. the appeal is allowed;
3.the conviction for attempted murder is quashed and a new trial directed.

[2014] SASCFC 61

11 June 2014

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Privilege