R v Nuttal & Guthrie
[2004] VSC 455
•5 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT SHEPPARTON
CRIMINAL DIVISION
No. 1513 of 2003
| THE QUEEN |
| v |
| DANIEL NUTTAL AND JASON GUTHRIE |
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JUDGE: | OSBORN J | |
WHERE HELD: | SHEPPARTON | |
DATE OF HEARING: | 4 AND 5 NOVEMBER 2004 | |
DATE OF RULING: | 5 NOVEMBER 2004 | |
CASE MAY BE CITED AS: | R v NUTTAL AND GUTHRIE | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 455 | |
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Application for separate trial – Murder – Two accused – Suggestion of coercion - Application denied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie SC | Kay Robertson, Solicitor for the Office of Public Prosecutions |
| For the Firstnamed Accused | Mr I. McIvor | Legal Aid |
| For the Secondnamed Accused | Mr P. Chadwick | Mr Kerry Clancy |
HIS HONOUR:
In this matter the accused Daniel Nuttal and Jason Guthrie are charged with the murders of John Gordon MacKay and Allen Raymond Thomas at Shepparton on 9 February 2003. Application has been made on behalf of Nuttal for a separate trial from Guthrie.
The Crown case rests on a combination of circumstantial evidence and evidence of admission by each of the accused as to conduct prior to, at the time of, and after the killings.
It appears that there is no dispute Nuttal was involved in a sequence of events involving both accused and both victims which resulted in the death of both the deceased. Nuttal's initial account of what occurred in his record of interview is as follows:
"Saturday night, I was sitting at home and I had - had a visitor, Jason Guthrie, who had come to - come to have a drink with me. So, I - I drove him to a bottle shop where he purchased a box of bourbon and we had a fair few drinks and then some time during the night, he said he wanted to go for a drive and see someone. Didn't specify where or who or what for. So, I took him for a drive and he told me where to go and that was Ashenden Street, the home of Gordon and Allen. He's kicked in the door, the front door of the house. There were no lights on at the time and a short - short time later, came outside with Gordon and placed him in the back seat of the car and then he's gone back in to the house and retrieved Allen and dragged him out the front of the house and placed him in the boot of the car and then he's requested that I drive him to the river, which I've done at Raftery Road and after we arrived at the river, Jason has dragged Gordon from the back seat of the car and started laying in to him on the ground beside the river. At which time I was still seated in the driver's seat of the car and I - I got out of the car and walked around the vehicle to see him laying in to Gordon. And Jason has requested that I give him a hand to push Gordon in to the water, which I have done and Jason has pushed him underneath the surface of the water and held him there for some time until he was satisfied that he was dead. And then he's opened up the boot of the vehicle. He requested that I give him a hand to lift Allen out of the boot. So, I took hold of Allen's legs and helped Jason pull him out of the boot and placed him on the ground behind the vehicle. At which time he was still alive and still moving and Jason has continued to drag Allen in to the river and push him beneath the surface until he had stopped moving. After which we both got back in to the car and drove away."
This account is subsequently elaborated, varied and qualified in the course of the record of interview. Nevertheless, there is no dispute throughout the record of interview that Nuttal was present and involved in the taking of the deceased men to the river and was present at the time they were killed.
The Crown case is that Nuttal was complicit in the murder of MacKay and Thomas and was involved in the following matters: driving to the house, seeing the door kicked in, helping at the house, maybe going inside the house depending on the view the jury take of the evidence of neighbours, reversing the car into the driveway, assisting in putting Thomas in the boot, helping contain both MacKay and Thomas in the car, helping put MacKay in the water while Thomas was in the boot, watching MacKay being murdered, remaining at the scene despite what he saw in relation to the killing of MacKay, making no effort to drive away with Thomas in the boot or otherwise save him, helping to get Thomas out of the boot, and watching while Thomas was murdered. Such a summary is of course necessarily provisional prior to the evidence in the trial but it can be seen that in essence the Crown case against Nuttal is one of an extended course of joint conduct with Guthrie.
The essential basis of Mr Chadwick's application is that both in statements made to civilian witnesses and to the police Guthrie ascribes to Nuttal a significantly greater role in the killings of MacKay and Thomas than that which Nuttal himself admits.
Mr Chadwick further submits that the potential prejudicial effect of such statements by Guthrie has been enhanced as a result of the plea of guilty which Guthrie has entered to the count of murder of MacKay. It is said that this plea may enhance the credibility of statements made by Guthrie adverse to Nuttal.
The principles to be applied in such cases are clear.
In R v Demirok[1] the Full Court stated, by reference to English authority, the usual approach adopted in cases where the essence of the Crown case is that the accused were engaged in a joint enterprise. In R v Grondkowski[2] Lord Goddard CJ said at p.371:
"… Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be."
[1][1976] VR 244
[2][1946] KB 369
The Full Court went on to summarise the considerations of public interest which may be regarded as supporting joint trials[3]:
"The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials."
[3][1976] VR 244 at 254
The principle that ordinarily a joint trial should be held where one accused is running a defence of coercion was affirmed by the Full Court in R v Gibb and McKenzie[4].
[4][1983] 2 VR 155 at 163
In Webb and Hay[5] the accused were charged with murder. Hay sought a separate trial on the basis that in three records of interview Webb asserted Hay had engaged in a violent and sadistic attack on the deceased. It was argued that although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice which would inevitably be caused to Hay. Toohey J (with whom Mason CJ and McHugh J agreed) stated the relevant principles[6] as follows:
"King CJ dealt with this ground by pointing out that there are “strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other”. What King CJ referred to as “strong reasons of principle and policy” were discussed by his Honour in R v Collie. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (R v Demirok at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused." (Citations omitted).
[5](1994) 181 CLR 41
[6]at 292-3
Toohey J stated further:
"It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: ‘That is a common feature of a joint trial and does not of itself render separate trials necessary.’
Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred." (Citations omitted).
It follows from the above statements of principle that in a case such as the present prima facie there should be a joint trial. It is necessary for the accused to show that in this particular case the circumstances are such that the prejudice which may result from a joint trial is not amenable to judicial direction.
In R v Iaria & Panozzo[7] Nettle J summarised the relevant principles as follows:
[7][2004] VSC 110
" …
· first, that where two or more persons are charged with murder at which all were present at the time of the killing, the interests of justice ordinarily require that they be tried together;
· secondly, the fact that one accused alleges that he was coerced or otherwise influenced by the other will generally be a reason for adhering to a joint trial;
· thirdly, while the Crown may be inhibited to some extent in the evidence that it may adduce at a joint trial, an accused should be allowed to lead in his defence, whether by calling witnesses or cross-examination, any evidence which is relevant to his defence;
· fourthly, while the court retains an exercise to exclude such evidence, the occasions for exercise of the discretion will be rare and it is not to be exercised simply because one accused wishes to elicit evidence of bad character of another accused;
· fifthly, care must be taken to explain to the jury that the case against each accused must be considered separately; and
· sixthly, there are some cases in which such a direction will be ineffective and they may occur where one or at least perhaps more than one of the following considerations apply: where out-of-court statements of co-accused contain grave allegations of bad character of the accused; where there is evidence irrelevant to any issue between the Crown and the accused and which could not have been led at a separate trial of the accused but is admissible as to an issue between the Crown and the co-accused and is highly prejudicial to the accused; where evidence irrelevant to any issue between the Crown and the accused is admissible against a co-accused, and as against the co-accused serves to corroborate or reinforce the evidence of an eyewitness against the co-accused, and as a result the jury would be likely to believe the eyewitness, not only in what he or she may say against the co-accused, but also in what he or she may say as against the accused, at least where the Crown places heavy reliance upon that witness to implicate the accused and the evidence is open to serious challenge."
In the present case there is in my view nothing which Mr Chadwick has pointed to on behalf of Nuttal which taken in itself or together with other matters is sufficient to justify a separate trial.
Firstly, the fact of inconsistencies between the accounts given by the two accused is not of itself sufficient reason for a separate trial. This is so despite the extent of the inconsistencies and the general tendency of Guthrie's statements to attribute a significant role to Nuttal.
The general character of Guthrie's statements can be seen from the initial summary answer given in his record of interview:
"Saturday afternoon I gave Danny a ring - ring on the phone to see what he was doing. He said, "Not much." And he said, "I'll come and pick you up and get some beers." Went and bought a slab of bourbon Woodstock, drank them. Pretty pissed, off me head as a matter of fact. I dunno, something just come into me head and I said, "Let's go and get Gordon round at Ashenden Street." And Danny said, "Yeah, no worries, let's go. Both drove around there, Danny kicked in the front door, I ran in, he went into Allen's room, attacked him. I grabbed Gordon, put him in the back seat of the car. Then Danny come out with Allen dragging him along the floor and out the front. We opened the boot, we put him in the boot. Took 'em down the river, give 'em a beltin'. I grabbed Gordon out and killed him. Danny grabbed Allen and killed him. And everything that we had, like, our clothes, we burnt them down at the river, had a fire. …"
Guthrie further described Nuttal kicking down the door of the house (182-3, 224-7)[8]. He ultimately states Nuttal said "I'll get Allen" when he had kicked down the door (516). He says Nuttal went into the bedroom of Thomas when Guthrie went into MacKay's room (217-218). Nuttal reversed the car up the driveway (249, 254-256). Nuttal put Thomas in the boot (259) having caused Thomas an injury to his throat which resulted in serious difficulties in breathing (262). Nuttal jammed Thomas into the boot (266, 276, 278). Nuttal drove Guthrie to the river (281) and on the way Guthrie states:
"I said to Danny – I said, 'What are we gonna do with them now?' He said, 'There's only 1 way to fix it, take ‘em to the river'.
Q: And do what?
A: And kill ‘em." (297)
[8]All references are to answers in the record of interview.
Guthrie says it was Nuttal who knew and found the location on the river (301ff). After the killing of MacKay Guthrie says Nuttal opened the boot with his key (369) and told Guthrie to get Thomas out of the boot (377). Nuttal then assaulted Thomas with a club lock (375-6). Guthrie and Nuttal jointly dragged Thomas to the river (387) and jointly drowned him (389ff) with Nuttal holding Thomas' upper body and head under the water. Guthrie denies throwing the car lock into the river (436). He denies making any threats to Nuttal (472ff) and says Nuttal was "all for it" (477, 509).
Mr Chadwick identified six matters which he submitted created special prejudice in the present case.
(a) the allegation Nuttal caused damage to the throat of Thomas;
(b)the possibility that Guthrie's record of interview may be regarded as corroborating evidence of neighbours tending to suggest Nuttal went into the house;
(c)the attribution by Guthrie of positive willingness to Nuttal;
(d)statements by Guthrie to the witness Gribble which both in themselves and together with the record of interview are particularly prejudicial to Nuttal;
(e)Guthrie's plea of guilty to the first count of murder;
(f)the fact the Informant engaged in comparison of the two men’s records of interview.
Mr Chadwick further submitted that the present case has characteristics similar to those which were held to justify a separate trial in R v Evans[9].
[9](unreported ruling of Hampel J, VSC 1 September 1997)
Before dealing with each of these matters I should record that it was accepted both by Mr Chadwick for Nuttal and Mr Leckie for the Crown that the allegedly prejudicial statements relating to the killing of MacKay contained in Guthrie's record of interview could not be severed from it despite Guthrie's plea of guilty to the murder of MacKay. This is because the account of the killing of both MacKay and Thomas is inextricably intertwined in the record of interview.
I turn then to the specific matters relied on by Mr Chadwick:
(a)In his autopsy report Professor Ranson describes compression injuries to the neck of Thomas. Mr Chadwick submits such injuries might be regarded by the jury as consistent with Guthrie's description of Thomas having serious breathing difficulties at the time Thomas was placed in the car by Nuttal. It is to be noted, however, that Nuttal in turn in his own record of interview says that Guthrie may have had Thomas "by the throat" when Thomas was drowned. In my view this aspect of the matter is not such a circumstance as to create an unusual or unacceptable risk that the jury will use Guthrie's record of interview against Nuttal.
(b)The Crown proposes to lead evidence from neighbours with respect to observations of the car used by the accused men at the time the deceased men were removed from their home. Such evidence may ultimately support the view that Nuttal did leave the car and enter the house, and/or move the car into the driveway for the purpose of loading Thomas into the boot of the car. Even taken at his highest, however, I am not persuaded that this evidence would be sufficient to render a joint trial inappropriate. It will be direct evidence and will be evaluated as such by the jury. It relates to events antecedent to the killings and is not potentially such in my view as to create an unacceptable risk that the jury will use Guthrie's record of interview against Nuttal.
(c)Guthrie's record of interview ascribes to Nuttal expressions of willingness and of intent to kill. These are the type of attributions of blame and/or sharing of blame which are common between co-accused. There is nothing about them which would render the general principles governing cases of this type inapplicable. Conversely, the assertion of coercion by Nuttal in his own record of interview (although not made in the initial summary statement which I have quoted) is a circumstance which has been held to strongly support a joint trial.
(d)The witness Gribble states that Guthrie told him:
"They had backed the car through the gate into the driveway. He gave Daniel an iron bar and told him to get one and he would get the other. Jas told me that one of them was dead before they left the house; so they put him in the boot of the car …"
This statement is, and will be understood by the jury to be, hearsay as against Nuttal. It is not in fact entirely consistent with Guthrie's record of interview and I do not accept that simply because it will be described by a lay person it is likely to have greater effect on the jury than the videotape interview. Indeed the probability is that its impact will depend very much on the impression the jury form of the witness. Conversely, the videotape will enable them to see precisely what the accused said to the police and how it was said. In any event I do not accept that this additional statement by Guthrie can be said to materially prejudice Nuttal in the relevant sense and in particular I am not satisfied there is an unacceptable risk the jury will use it against Nuttal.
(e)Guthrie's plea of guilty to the murder of MacKay does not, in my view, create an unacceptable risk that his record of interview will be used by the jury against Nuttal. There remains a dispute after all as to whether such record of interview is a truthful and reliable account of the killing of Thomas. Further, the plea of guilty must emphasise Guthrie's primacy in the killing of MacKay and this cannot be to Nuttal's disadvantage. In the circumstances I am not persuaded the plea justifies a separate trial. It does not, in my view, give rise to a situation where there is an unacceptable risk that the jury will use Guthrie's record of interview impermissibly.
(f)It was not improper for the investigating police officers to compare and cross check the fit of the two records of interview with each other and the circumstantial evidence. That they did so does not demonstrate the jury will act improperly when directed to decide the case on the evidence admissible only against each man.
(g)The cumulative effect of the above matters does not change my view of their impact.
As I have said, Mr Chadwick put his submissions in part by reference to the ruling of Hampel J in R v Evans. In that case two men were charged with the murder of a third who was killed by a blow to the head with a tomahawk. In my view it is clearly distinguishable from the present case.
(a)One of the accused in that case had a prior conviction for causing serious injury by striking a person with a hammer. The dramatic similarity to the cause of death in issue in the trial created a serious risk of prejudice to the accused if that prior conviction were brought out before the jury. It was apparent that it would be brought out if a joint trial occurred.
(b)The case was said to be one:
"… where every feature of the case from the early movements, to placing of the weapons, to what occurred on the way, to what occurred thereafter up to a certain point, really emerges only from the records of interview."
In my view the circumstantial evidence in the present case is such that this cannot be said of it. This evidence includes the autopsy evidence, the circumstantial evidence discovered and videotaped at the scene of the killings and of the burning of the accused men's clothes, and the evidence of their movements on the evening in question.
(c)Hampel J expressed the view that it would be impossible not to construct a composite narrative from the two records of interview in the case with which he was concerned. In my view this is not so in the current case. Each record of interview taken together with the circumstantial evidence provides a coherent basis for the Crown case respectively against each accused.
For the above reasons I am not satisfied that the present case is one where in the words of Crockett J in Jones & Waghorn[10] not only will substantial prejudice arise from a joint trial "but that prejudice is of a kind not really amenable to nullification by jury directions."
[10](1991) 55 A Crim R 159 at 164
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