R v Smit

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Smit & Ors [2004] NSWCCA 409

FILE NUMBER(S):
2004/1831
2004/1766
2004/2388

HEARING DATE(S): 13/10/04

JUDGMENT DATE: 03/12/2004

PARTIES:
Crown - Respondent
Steven Charles Smit - Appellant
Shiree Anne Smit - Appellant
Donna Clare Tarrant - Appellant

JUDGMENT OF: Grove J James J Hoeben J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70217/02
70218/02
70058/02

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL:
D Arnott - Crown
A Haesler SC - Appellant Shiree Smith
C B Craigie SC - Appellant Steven Smith
S Odgers SC - Appellant Donna Tarrant

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Crown
Ferns Aubrey Mitchell - Appellant Shiree Smith
North & Badgery - Appellant Steven Smith
C Hunter - Appellant Donna Tarrant

CATCHWORDS:
CRIMINAL LAW: murder convictions - jury question as to manslaughter - were particular accused aware of intention of person who did act to kill or cause grievous bodily harm - need for Stokes v Gifford direction - were separate trials required - incorrect submission by Crown - direction required - false alibi - consciousness of guilt.

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
In each appeal, appeal allowed, conviction and sentence quashed and a new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1831
2004/1766
2004/2388
GROVE J
JAMES J
HOEBEN J
Friday, 3 December, 2004

REGINA v STEVEN CHARLES SMIT
REGINA v SHIREE ANNE SMIT
REGINA v DONNA CLARE TARRANT

Judgment

GROVE J: Steven and Shiree Smit and Donna Tarrant were jointly indicted on a charge that on or about 29 August 2001 at Katoomba they murdered Craig Collins. Following trial before Hulme J and a jury they were convicted and sentenced. Each appeals against conviction. None of them seeks leave to appeal against sentence.
At approximately 9 am on Thursday 30 August 2001 Katoomba Police received the first of some anonymous telephone calls, as a result of which they attended at 2/80 Camp Street. They discovered the naked body of Mr Collins wrapped in two blankets. Within the blankets were also wrapped two bloodstained jumpers and a cricket bat. There were large amounts of blood and blood staining throughout the flat.
On a lounge chair were found three knives. Another knife was found under a lounge chair and still another on a bed. Some of these knives and other items within the flat were stained with blood identified as that of the deceased and his DNA was detected on a number of items. Dr Ellis, a pathologist who performed the post mortem, testified that death was principally caused by a blow to the throat which fractured the larynx, caused swelling which in turn deprived the victim of oxygen. There were twelve stab wounds, two of which could have contributed to the death, of which one, a penetrating wound to the lung, certainly did. The body also displayed numerous signs of trauma. There were located fourteen areas of bruising, fifty eight abrasions, ten lacerations and eight scratches. There were said to be in excess of one hundred injuries ranging from the minor to the very serious.
The opinion of Dr Ellis and evidence from a Mr Mallard (a neighbour of the deceased who saw him at about 2 am on the Wednesday when he asked him to turn down some loud music) establish a likelihood that the killing occurred between 2 am and the daylight hours on that Wednesday.
Forensic investigation revealed a partial left palm print of Mrs Smit on one of the knives found on the lounge chair. It was described as a bloodstained steak knife with the blade slightly bent. Ms Tarrant’s right palm print was discovered on the back of the blade of the cricket bat, which was wrapped in the blanket with the body. The various testings of blood and bloodstains within and upon items within the flat were identified as matching that of the deceased.
A search of the flat located a wallet containing Medicare and Bankcards, a birth certificate and accounts relating to Ms Tarrant.
As a result of enquiries Mr and Mrs Smit were arrested on Friday 31 August. Ms Tarrant was also in police custody on that day, apparently in connection with something else, but she was interviewed about the murder on the following day.
Steven Smit participated in a video recorded interview with police. Initially he told them that he had last seen the deceased on the previous Sunday but then admitted that he was at the flat on the Tuesday/Wednesday night when he had intervened to prevent Mr Collins from “raping” his flatmate (a reference to Ms Tarrant). His version then was that the men engaged in physical confrontation during which Mr Smit had grabbed the deceased around the throat “a little bit”. Mr Collins was said to be at the time wearing a shirt but no pants. Later it was Mr Collins who produced a cricket bat and he struck Steven Smit with it, however, the latter was able to take it from him and throw it away. It might be mentioned that the deceased was a small man of about five feet in height and six and half stone in weight, whereas Mr Smit was a large man some six feet two inches tall.
After the bat was thrown away Mr Smit claimed that Mr Collins produced a knife and stabbed Ms Tarrant in the thigh. At one point he told police that he thought he remembered Ms Tarrant climbing over the deceased and jumping out the window, as a result of which she thought she was going for help. Thereafter he sat on the lounge and eventually waited for some eight or nine hours during which he fell asleep.
When he awoke from sleep he saw the deceased’s naked body. Out of respect, he wrapped him in the blankets (including the cricket bat) and moved the body into the kitchen. He put some items on a lounge chair, one of them being a knife. He found some keys, which he used to lock the premises after which he departed and went to his home arriving at about 4.30 or 5 am.
When he arrived he found that both his wife and Ms Tarrant were already there. Mrs Smit had been at the Camp Street flat but her husband said she was only involved to the extent of trying to stop Mr Collins from hitting him with the cricket bat.
Police search of the Smit’s premises located Mr Smit’s tracksuit pants, yellow teeshirt and jogging shoes, all of which had spatter of the deceased’s blood on them. At trial this spatter was the subject of expert interpretation evidence. This showed that the spatter was not consistent with having occurred if Mr Smit had merely wrapped a bloodstained body in the blankets and moved it.
Mrs Smit exercised her right to decline to answer police questions.
Ms Tarrant was interviewed in the early hours of 1 September. She acknowledged that she was also known as Thompson. A document from Centrelink in that name had been located at the Smit’s premises. Ms Tarrant said that she had resided at the Camp Street flat with a friend called Wanda and the deceased sometime ago, but that for the previous three to four months had been residing at Darley Street with a Mr Ricky Ranse. She said she had not seen Mr Collins for over a week, the last occasion being an encounter at the Katoomba Hotel. She had not been at the deceased’s flat on the Tuesday/Wednesday and had not been the victim of any attempted rape by him there. She claimed she had no knowledge of his death until told about it by police. She said that she had been at the deceased’s flat in company with the Smits but this was around about the time of her birthday (which would have been 24 August).
Each appellant was separately represented at trial and on the appeal. Different grounds are presented but common to all is a challenge to the correctness of certain directions given by the learned trial judge regarding the basis upon which an accused might have been found guilty of murder (ground 2 in the appeal of Steven Smit; ground 5 in the appeal of Shiree Smit and ground 2 in the appeal of Donna Tarrant).
It is convenient to deal first with this common ground. It is necessary to detail the relevant directions given to the jury and a response to an enquiry made by them during their deliberations. The relevant part of his Honour’s charge to the jury was in these terms:
“Let me turn to the legal issues involved in the charge of murder. The legal concept of murder involves a number of separate ingredients to each of which you must direct attention. Precision is required and rather than have you take copious notes or test your memory unduly I am going to have given to you a document which sets these out. The document has been drafted so that as far as possible issues can be kept distinct and dealt with in a logical order and should be regarded as part of my summing up. I will give you time to read the document so that you understand its general form and then explain aspects of it to you.
MFI #10 HIS HONOUR’S WRITTEN SUBMISSIONS TO THE JURY.
(Copies of MFI 10 handed to the jury and counsel).
HIS HONOUR:   You will note there is one page headed ‘Manslaughter’. Nothing has been said in this case about manslaughter yet but I will come to it.
The charge against each accused is that he or she on or about 29 August 2001 at Katoomba in the state of New South Wales did murder Craig Patrick Collins.
I will start off with the ingredients of murder. Before you can convict an accused of murder the Crown must establish to your satisfaction beyond reasonable doubt each of the matters listed in subparagraphs 1 and 2, and one of the elements in each of the subparagraphs 3 and 4 in the section entitled ‘Murder’. That is the first page.
In the case of subparagraphs 3 and 4 you do not need to be able to choose between the alternatives or options within each paragraph. Thus, in the case of subparagraph 4, if you are satisfied that an accused’s intention fell within one or other of the alternatives there set out, you do not need to decide or be able to decide which. In the case of subparagraph 3 you do not need to decide whether it was the particular accused who killed the deceased providing you are satisfied that one of the three possibilities listed in the subparagraph existed; and, of course, existed in relation to the particular accused who you are considering at that time.
Now, in this case some of the matters, for example the death of Craig Collins, are not in dispute. Accordingly you should have no difficulty in being satisfied that that occurred. However, I emphasise that before you can convict you must be satisfied as the document indicates.
Most of the words and expressions used are ordinary English words and need no explanation, or at least I do not think they do. To the extent that the concepts may be unusual I have sought to explain them by notes at the bottom. However, as I have indicated, if you have any difficulty in understanding what is said in the written directions please feel free to ask for further explanation.
Let me go to the second page headed ‘Manslaughter’. Even though there is no reference to manslaughter in the indictment the law requires me to tell you that when a charge of murder is brought it is open to a jury that finds murder has not been proved to find an accused guilty of the offence known as manslaughter. I make it clear you will only have occasion to consider this separate topic if in the case of a particular accused you are not satisfied that the Crown has proved that accused guilty of murder.
Manslaughter has a number of ingredients and these are set out on the second page. Looking at that page you will recognise that in the description the ingredients numbered subparagraphs 1 to 3 are identical with the ingredients in the first three subparagraphs on the page headed ‘Murder’. It is the fourth ingredient which is different. It has two elements: Unlawful and dangerous. The written directions provide an explanation of both of those terms.
I need say no more on the topic of unlawful but I would emphasise in regard to the concept ‘dangerous’ that the test is an objective one. It is whether a reasonable person in the position of the particular accused would have realised that he or she was exposing the deceased to an appreciable or significant risk of serious injury. I have said in the position of the accused. You consider his or her state of knowledge as that of an adult male or female.
It is not necessary that the realisation be of injury of the precise nature or extent that occurred. In judging whether an act was dangerous you will not limit your consideration to the actual manner of death disclosed in evidence. If you find that the deceased died as a result of a hard blow to the voice box you will consider whether a reasonable person in the position of the author of the blow would have realised that an appreciable risk of serious injury was created by such a blow in that general area of the body.
Now, as I have said, manslaughter has not hitherto been mentioned in this trial and it may well be that you do not need to spend much time on it given that the issues which have occupied time have tended to be whether the particular accused actually did anything by way of participating in the death of Mr Collins. I said did anything in the precise terms that I have set out in the written directions, but if you are not satisfied of that accused’s involvement in the death then your verdict will be not guilty of both murder and manslaughter.”
17           The written direction (MFI 10) was in these terms:
“MURDER
An Accused should be found guilty of murder if, and only if, in relation to that accused, the Crown establishes beyond reasonable doubt each of ingredients (i) and (ii) and one of the elements in each of sub-paragraphs (iii) and (iv) below.
(i)           that Craig Patrick Collins has died
AND
(ii)          that his death was caused by a deliberate act;
AND
(iii)         that the deliberate act was

An act of the particular Accused, or
An act done in furtherance of, and within the scope of, a joint criminal enterprise to which that Accused was a party, or
Done, while the Accused was present, intentionally aiding or encouraging the person who did the act, to do it;
AND
(iv) that at the time the act was done, it was done with -
An intention to kill, or
An intention to inflict grievously bodily harm.
Note:   The ‘act’ referred to is not the death of Craig Patrick Collins which, in this context, is at most, a consequence. For the purposes of the charge of murder in this case the ‘act’ alleged is the striking of Mr Collins in the vicinity of his voice box.
A ‘joint criminal enterprise’ includes an understanding or arrangement amounting to an agreement to do acts which amount to a crime. The understanding or arrangement need not be express and may be inferred from the circumstances.
‘Grievous bodily harm’ means really (or very) serious physical injury.
MANSLAUGHTER
If the Crown has not satisfied you beyond reasonable doubt of the ingredients of murder but, in relation to a particular Accused, establishes beyond reasonable doubt each of ingredients (i), (ii) (iii) and (iv) below, you should find that Accused guilty of manslaughter.
(i)           that Craig Patrick Collins has died,
AND
(ii)          that his death was caused by a deliberate act;
AND
(iii)         that the deliberate act was,
An act of the particular Accused, or
An act done in furtherance of, and within the scope of, a joint criminal enterprise to which that Accused was a party, or
Done, while the Accused was present, intentionally aiding or encouraging the person who did the act, to do it;
AND
(iv) that the act was both unlawful and dangerous as explained below.
Unlawful and Dangerous Act
Included in unlawful acts is the deliberate application of force to another person without that person’s consent.
An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury.
NOTE:-
Again, the ‘act’ referred to is not the death of Craig Patrick Collins which, in this context, is at most, a consequence. For the purposes of the charge of manslaughter in this case the ‘act’ alleged is the striking of Mr Collins in the vicinity of his voicebox.
Again, a ‘joint criminal enterprise’ includes an understanding or arrangement amounting to an agreement to do acts which amount to a crime. The understanding or arrangement need not be express and may be inferred from the circumstances.”

The jury enquiry was:
“Would it be a valid finding to find one member of the criminal enterprise guilty of murder and another guilty of manslaughter”.
As was appropriate, his Honour raised the matter of response with counsel. In beginning so to do he expressed his view that the simple answer to the question was “No”. As will appear, his Honour considered that this was the precise answer although there is an available perception that there was imprecision in the formulation of the jury’s question.
It should be noted that counsel for Mrs Smit submitted that the answer should not be in the negative, however, thereafter the discussion between Bench and Bar turned its focus upon potential liability for “joint criminal enterprise” as distinct from liability pursuant to alternatives which had been postulated in MFI 10. In the event his Honour responded as follows:
“You have used the term ‘criminal enterprise’ in your note. The written directions use the expression ‘joint criminal enterprise’. The implication in the expression ‘joint criminal enterprise’ is that all the participants in it had either an intent to kill or an intent to do grievous bodily harm. If only one had that intention and one did not have the intention, it would not be a joint criminal enterprise. So if by your reference to ‘criminal enterprise’ you meant to pick up the words I have used in the written directions, the answer to your question is, no, they could not be a member of a joint criminal enterprise and not both be guilty of murder or manslaughter as the case may be, assuming they are guilty at all.
The other thing I wanted to say to you was this: That the way in which the case has been presented here is that of a joint criminal enterprise, not some other non-joint criminal enterprise.”
The prosecution case was presented asserting that there had been a joint criminal enterprise to kill or cause grievous bodily harm to Mr Collins. However, no doubt with the strictures of Pemble v The Queen 1971 124 CLR 107 in mind, his Honour in his written directions defined the three situations in which an accused might be found guilty of murder and explained the elements of the alternative verdict of manslaughter.
The first situation was pertinent if the jury found that the death was caused by a particular accused who, himself or herself, intended to kill or cause grievous bodily harm. The second was engagement in the joint criminal enterprise which was the way the Crown case was specifically presented. The third contemplated accessorial liability.
The argument on this ground was initially presented by counsel on behalf of Steven Smit which argument was adopted on behalf of the other appellants.
The submissions at that point were essentially focussed upon his Honour’s response to the jury question which it was argued “closed off” from consideration possible findings that in a violent encounter with Mr Collins, Mr Smit inflicted an injury which later proved to be fatal when he used more force than he realized and that, he having “subsided” to the lounge, others inflicted the stabbing wounds with intent on their part to kill or do grievous bodily harm. In this “scenario” the stabbings caused or contributed to the death.
When counsel were replying to the Crown oral submissions, a significance in the written directions (which were not elaborated beyond what I have above set out) to a possible finding of facts was identified. With reference to the third situation postulated in the written directions, it was necessary for the jury to be directed that, if considering the case of a particular accused, findings were made that the “act” (defined by his Honour as the striking in the vicinity of the voice box) was done whilst that accused was present intentionally aiding or encouraging another person who did the act to do it, the Crown had to prove to the requisite standard that that accused knew or was aware that the intention of the person who did the act was at that time to kill or cause grievous bodily harm: R v Stokes & Gifford 1991 51 A Crim R 25.

The matter having been raised so late in the hearing, the Crown was given an opportunity to respond. In relation to the necessity for direction just described the Crown conceded “it would appear the directions were deficient in this regard”. Clearly it was left the jury to understand that any one of the accused could be convicted of murder if that accused were present intentionally aiding and encouraging another who did the act without the particular accused having any knowledge or appreciation of the requisite intention of the actor. In the absence of that proof the crime of murder on the third alternative would not be made out.
There was nothing said in the oral directions which instructed the jury that they could not convict of murder on the third stated basis unless satisfied of the knowledge of the accessory concerning the state of mind of the principal.
This ground is made out. The omission of the requisite direction identified in Stokes & Gifford was not observed by anyone at trial. It is conceivable that this came about in the course of production of MFI 10 and overlooking the requirement occurred in the context of a trial in which the principal focus was obviously upon the participation of the accused in the act of killing rather than accessorial liability. As I have mentioned, this remained the case on hearing the appeal until the deficiency was noticed by counsel when invited to reply to Crown submissions. The Crown submits that this Court should nevertheless dismiss the appeals invoking the proviso to s 6(1) of the Criminal Appeal Act. Before deciding whether or not so to do, the other grounds of appeal should be considered, however, it is inevitable that the outcome of the appeal will, subject to the further grounds, turn upon whether this is a case in which the proviso can appropriately be applied.
Steven Smit raises one other ground (ground 1 in his notice) which asserts miscarriage of justice in the conduct of a joint trial of himself and his wife. Donna Tarrant (ground 1 in her notice) contends that she should have been tried separately from both Mr and Mrs Smit.
Although there was a pre trial refusal to order separate trials and further refusal when application was renewed in the course of it, such ground is looked at by this Court in the light of the events which have occurred at trial to determine whether there has been miscarriage: R v Black, unreported NSWCCA 17 February 1992.
On behalf of Steven Smit it is acknowledged that a prosecution which alleges a joint criminal enterprise should proceed against all alleged participants together if possible. It is contended that this is “the rare case” in which it was impossible for the appellant to have a fair trial that way.
There was evidence initially admitted against Mrs Smit only (as his Honour promptly informed the jury) that on the Wednesday she had a conversation with Ricky Ranse during which she told him that she needed a hand to clean up a “fucking dead body” and that a killing had occurred with a cricket bat done by “both of us, but mainly Steve” who had “belted the fuck out of him”.
A change occurred when it was apparently realized by counsel for Ms Tarrant that this evidence could be used to her advantage in that Mrs Smit made no mention to Mr Ranse of her presence or participation. In effect the evidence of what Mrs Smit said to Mr Ranse became evidence (although favourable rather than against) in the case of Ms Tarrant. The jury were informed of this change. The complaint on behalf of Mr Smit is that the risk of the jury misusing this evidence would have been compounded by the stance taken on behalf of Ms Tarrant by embracing it and by her counsel endorsing its accuracy.
In addition, in referring to Mr Ranse’s evidence the Crown Prosecutor invited the jury to consider “why would he lie”. That should not have been said: Palmer v The Queen 1998 193 CLR 1. His Honour recognized this and gave directions which are the subject of detailed challenge in connection with a ground advanced on behalf of Mrs Smit but of which the present significance is to attempt to fortify the proposition that the task of the jury in considering the case of Mr Smit, ignoring this evidence, was or verged upon the impossible.
The applicable principles concerning separation of trials were expressed by Hunt J in R v Middis unreported NSWSC 27 March 1991 and his statement has been approved by this Court in R v Baartman unreported NSWCCA 6 October 1994 and R v Chami and Sheikh 2002 128 A Crim R 428. His Honour said:
“Briefly the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him: and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and (3) where there is a real risk that the weaker Crown case against the applicant will be immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.”
Applying those considerations to the present cases it can readily be perceived that the case against Mr Smit is different from the case against the co-appellants. In distinction from them there is direct evidence of his admissions to engaging in altercation with the deceased and being present in the flat both when Mr Collins was alive and after his death. The interpretation of the deceased’s blood spatter on Mr Smit’s clothing and shoes was a powerful link in establishing the case. Although different, the case against Mr Smit was not significantly weaker than that against those with whom he was jointly tried.
It is contended that the evidence complained of “undoubtedly made the prosecution case immeasurably stronger” against the appellant. Obviously, if it was admissible to rely on evidence that his wife said that he executed the killing that would be so, but the application of principle requires evaluation of risk. In this case the risk postulated is that the jury would disobey clear instruction that the particular evidence may not be taken into account in considering the case against Mr Smit.
The change whereupon the jury were told that the evidence of the conversation between Mrs Smit and Mr Ranse was initially inadmissible only against her and then that they could consider it in the case against Ms Tarrant would only add emphasis to the circumstance that that evidence was quarantined against consideration in the case of Mr Smit.
There is ample authority for the proposition that, absent some indicative factor, a jury will not be presumed to have disregarded unambiguous directions. It is a common feature of joint trial that co-accused seek to implicate another or others but that does not, without more, render separate trials necessary in order to avoid miscarriage: Webb & Anor v The Queen 1993 181 CLR 41; R v Fernando & Anor [1999] NSWCCA 96; R v Skaf & Ors [2004] NSWCCA 74.
I would reject ground 1 in Mr Smit’s appeal.
It is convenient to turn to the similar ground (ground 1) advanced on behalf of Ms Tarrant. At the close of the Crown case application was made on behalf of Ms Tarrant for a directed verdict of not guilty or alternatively severance for separate trial. His Honour dealt with and refused both applications.
On behalf of Ms Tarrant submission is made referring to an asserted error of fact in his Honour’s judgment that Ms Tarrant had said that she spent the night at Mr and Mrs Smit’s residence whereas the evidence was that she said a Mr Jackson stayed there. The evidence was that in a conversation with a Ms Watts, Ms Tarrant responded to a question addressed to Mr Jackson who was in her company that he had stayed “at Steve’s place”. Mr Jackson gave evidence (disputed by the Crown) that he had spent the night with Ms Tarrant at the Smit’s house. This evidence in effect provided Ms Tarrant with an alibi which necessarily must have been rejected by the jury. In regard to the present issue the inaccuracy is of no consequence.
His Honour commented upon evidence which could demonstrate that Ms Tarrant told untruths to police. These appear on the video record of her interview. It is contended that his Honour should have ascertained whether the Crown intended to rely upon any such lies as manifesting consciousness of guilt. In due course it was ascertained that the Crown did not.
The learned trial judge accepted the statement of relevant principles in Middis (supra). In an obvious reference to the first stated matter he said:
“I am not satisfied that the evidence against Ms Tarrant is significantly weaker than that against other accused, although I would accept the proposition that it is weaker”.
It was pointed out that his Honour had apparently overlooked earlier saying in an exchange with counsel:
“I think you can take it that I agree with your proposition that the case against the other two accused is significantly stronger than the case against your client (Ms Tarrant) without taking me to it chapter and verse” (T718).
Whilst I have noted these complaints, I reiterate the nature of the task upon which this Court is engaged is to consider whether there has been miscarriage in requiring Ms Tarrant to stand joint trial with Mr and Mrs Smit rather than analysis of reasons given for refusal to separate before or in the course of trial.
The critical evidence inculpating Ms Tarrant was the identification of her palm prints on the back of the cricket bat which was an instrument capable of being used to inflict the fatal laryngeal injury and which bat was wrapped within the blankets which enveloped the naked body of the deceased. Importantly there was scientific evidence that the palm prints were in wet blood when left on the bat and were not deposited there before the blood. It was likely that the blood was on Ms Tarrant’s hand when she contacted the blood but it was possible that her hand deposited its print through wet blood which was on the bat.
This was powerful evidence of the presence of Ms Tarrant in the flat at the time of the killing. As abovementioned Ms Tarrant relied on evidence disputed by the Crown, that she was in the company of Mr Jackson during the Tuesday night and into midday Wednesday.
The essence of the appellant’s complaint is that the ERISP with Mr Smit, inadmissible against her, located her at the flat in dramatic circumstances in which, according to Mr Smit, she was the victim of an attempted rape. The submission was also sought to be supported by the change in making admissible the conversation between Mrs Smit and Mr Ranse contrary to his Honour’s initial direction that it was admissible against Mrs Smit only. The submission is that this would confuse the jury. I reject that proposition. I expect that it would be obvious to them that this evidence was being seized upon by Ms Tarrant because it was in her favour. Hearsay is not a concept exclusively understood by lawyers and a jury would be expected to readily understand, for example, that what Mr Smit told police was admissible only against him and what Ms Tarrant told police was only admissible against her. What they were being told was an exception (which again would be readily understandable) that evidence could be used if it was the accused himself or herself who sought to take advantage of something that had been said by another.
The risk in this case can be identified as undermining the alibi by using what Mr Smit said to conclude that Ms Tarrant was at the flat rather than with Mr Jackson. I see no reason to conclude that a jury should be taken to be unlikely to adhere to clear direction that what Mr Smit said could only be used when considering the case against him.
Part of Mr Smit’s account to police was that Ms Tarrant had been “stabbed” in the thigh by the deceased. If this happened she was necessarily present at the flat. A photograph showed what might be described as a small scratch on her thigh. Counsel for Mr Smit relied on the photograph as supporting his account, however the Crown Prosecutor argued that the incident was a fabrication. This provides a somewhat lesser conflict between jointly indicted accused than “a cutthroat defence”, but even in the latter case separate trial is not mandatory: see Webb & Anor v The Queen (supra).
It should be noted that there was other evidence capable of being weighed by the jury in determining whether Ms Tarrant was at the flat at the relevant time. They were entitled to attach considerable significance to the finding of her wallet at the flat which contained documents of the type usually carried on the person.
The Crown case was presented as one of joint enterprise and it is recognized that there were distinctly different prominent pieces of evidence pointing to the participation of each individual. Against Mr Smit was the interpretation of the blood spatter of the deceased on his vesture, against Mrs Smit was her confession to Mr Ranse and her handprint on a knife and against Ms Tarrant was her handprint on a likely murder weapon which had been deposited after the spilling of the deceased’s blood. I do not regard these differences as demonstrating that joint trial was unjust. It is true that in accordance with his Honour’s directions there were available for consideration bases of possible liability of offenders other than joint criminal enterprise but this does not, in my view, in these circumstances, detract from the desirability of trying alleged joint offenders jointly.
The Middis test requires demonstration of possible injustice in a joint trial. This has not been shown nor has it been shown that, because a joint trial has been conducted, Ms Tarrant suffered miscarriage as a result of standing her trial with those alleged co-offenders. I would reject this ground.
I turn next to other grounds presented on behalf of Mrs Smit. Ground 1 asserts that his Honour erred in directions to the jury as to how they were to assess evidence of Mr Ranse. Given his evidence of Mrs Smit’s confessional statements to him there was a considerable attack on his credibility at trial. The outcome of that attack was quintessentially to be determined by the jury.
I have already made reference to the rhetoric of the Crown Prosecutor in inviting the jury to consider in relation to Mr Ranse “Why would he lie”. In his charge to the jury his Honour sought to repair the damage which this impermissible oratory might have caused in these terms:
“During the course of her address to you, when dealing with the evidence of Mr Ranse, the Crown Prosecutor asked you rhetorically why would Mr Ranse lie? In discussions we have had in your absence, the Crown Prosecutor has conceded that she was in error in posing that question. The central issue here is not whether Mr Ranse had any motive to lie, but whether you are satisfied beyond reasonable doubt of the guilt of each accused.
The evidence called has been directed to that issue of guilt, not to the issue of whether or not Mr Ranse may have lied or had a motive to lie. Whether he had any such motive is not a topic on which there is any evidence or to which anyone has sought to adduce evidence, so it would be quite wrong for you to be diverted from the central issue has the Crown proved the case against each accused beyond reasonable doubt by speculation as to whether Mr Ranse had any reason to lie.”
Counsel sought further direction on this topic asserting that what had been said did not sufficiently “cure the problem”. His Honour directed counsel for Mrs Smit to formulate exactly what she submitted should be said to the jury by way of direction. This was done. The proposal was:
“I told you that it was impermissible for you to reason why would Ricky Ranse lie and I remind you of that. The reason is that the Crown must prove its case beyond reasonable doubt. The accused does not have to prove anything. Placing upon Miss Smit an obligation to raise an explanation for why Ricky Ranse might be lying reverses the onus of proof. Just because there is no evidence of motive to lie or a plausible explanation for him lying does not mean he was not lying”.
The Crown Prosecutor expressly agreed with the proposed direction. Thereafter his Honour directed the jury:
“I directed attention to the topic of the question of whether Mr Ranse had any motive to lie. May I just add this to what I said earlier: Just because there is no suggestion of a motive or, I would add, any evidence of one, does not mean there wasn’t one. Just because there is no suggestion or evidence of a motive, does not mean there wasn’t one. There is, of course, no obligation on an accused person to suggest any motive”.
His Honour had, of course, when dealing with the matter as set out in the first extract above quoted reminded the jury that it was the central issue of the trial that the Crown prove beyond reasonable doubt the guilt of each accused. Nevertheless, in not literally adopting the draft direction which had been requested and had the support of both counsel, he omitted to caution the jury against the risk of reversal of that onus of proof. The risk of that reversal is a prominent reason for the condemnation of a prosecutor asking a jury a rhetorical question of the nature under examination: see Palmer supra and also R v E 1996 39 NSWLR 450.
It was argued that this omission was compounded in its potential adverse effect on Mrs Smit’s case by his Honour’s later expression when summarizing the Crown and defence cases that:
“In its terms, Mr Ranse’s account of the conversation with Mrs Smit is strong, if not compelling evidence, of Mrs Smit’s participation in Mr Collins’ death”.
The contention was that the qualification (or description) conveyed by the first three words of that passage might be missed by the jury. I see no reason so to assume. This ground is made out to the extent that an adequate “cure” of what the Crown Prosecutor had said should have included caution against reversing the onus of proof.
Ground 3 on behalf of Mrs Smit asserted that his Honour misdirected the jury as to the evidence of the deceased’s “blood” being found on the knife. When it was pointed out by counsel for the Crown that there was specific evidence supporting his Honour’s observation about “Mrs Smit’s palm print on the knife with Mr Collins’ blood on the blade” which had apparently been overlooked, this ground was not pressed.
Neither was ground 4 which asserted that his Honour erred in not leaving a possible verdict of being an accessory after the fact to the jury.
It is clear that that ground is unsustainable. The situation is as follows. Upon an indictment for murder the jury may acquit, find the accused not guilty on the grounds of mental illness, or convict him of murder, manslaughter or, in the appropriate case, dangerous driving occasioning death. An accused may also be found guilty of an attempt to commit murder or of an assault with intent to commit murder. There are also occasions when on the trial of a person for the murder of a child a jury may convict of concealment of birth or a woman of infanticide.
In the absence of a count being specified in the indictment or statutory authority (for example s 340 of the Tasmanian Criminal Code: see Apted v The Queen 1981 5 A Crim R 141) a finding that an accused was an accessory after the fact is not an available verdict on an indictment charging murder solely.
Ground 6 asserted “a miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that she had confessed her guilt to Ricky Ranse”.
Underlying this ground is the assumption that proof of the confessional statement by Mrs Smit to Mr Ranse was an essential intermediate step in proof by the Crown of a circumstantial case: Shepherd v The Queen 1990 170 CLR 573.

No direction such as is now proposed was sought at trial. The Crown contended that it was open to the jury to convict Mrs Smit if satisfied of her presence at the flat during the killing, her palm print on the knife, her distressed condition on the Wednesday morning and her seeking out Mr Ranse for assistance (as distinct from confessing involvement to him). The Crown submitted that the jury would be well able to conclude that Mrs Smit “actively participated in causing injury to the deceased or actively gave assistance or encouragement when this occurred”. The latter imports the problem of omission to be aware of the intention of the principal discussed in relation to ground 5 (ground 2 in the cases of the other appellants).
In recapitulating submission by counsel on behalf of Mrs Smit at trial his Honour clearly delineated the issue being raised. He said that the submission was:
“…… if you put aside Mr Ranse, the other evidence in the case including the fingerprint on the knife did not indicate her client was involved in the killing. Indeed, apart from those two matters that is the fingerprint and Mr Ranse’s evidence, there was no evidence Mrs Smit was there at the time of the killing and the print on the knife could have been put there before or after”.
It can be mentioned that counsel for Ms Tarrant asked for a direction of the kind now contended in relation to his client’s palm print on the cricket bat and, in response to that request, an appropriate direction was given. Counsel for Mrs Smit did not, as I have said, seek such a direction nor was any direction sought concerning Ms Smit’s palm print on the knife.
I would not uphold the appeal on this ground.
The final ground advanced on behalf of Mrs Smit was ground 2 contending that the verdict was unreasonable and cannot be supported having regard to the evidence.
The principal thrust of the argument in support of this ground was directed to asserting that the conviction was wholly reliant upon the acceptance by the jury of the confession by Mrs Smit to Mr Ranse. The Crown does not accept that this is so and argues to the contrary, but, assuming for present purposes only, that the appellant’s submission is correct in that regard, I see no reason for interference with what I have earlier described as a quintessential jury question. The jury saw Mr Ranse, heard the vigorous attacks upon his credit and reliability and were in an advantageous position to determine whether to rely upon his testimony. This ground should be rejected.
Next I turn to the remaining grounds advanced on behalf of Ms Tarrant. Ground 3 asserted that the trial judge erred in directions to the jury regarding evidence that the appellant had attempted to establish a false alibi.
Ricky Ranse testified that he was interviewed twice by police, on 30 August and 12 September 2001 respectively. Between those dates Ms Tarrant approached him and asked him to say that she had been at his home for a couple of weeks.
In a summation of what he apprehended to be the Crown case against Ms Tarrant his Honour referred to a number of matters and continued:
“…… next, evidence that Ms Tarrant had left Mr Collins’ unit in a disorganized or hasty manner witnessed by her leaving behind her birth certificate, wallet, Medicare and Bankcards; evidence of her fingerprint and blood on the bat indicating she was in the premises with Mr Collins’ blood still wet; evidence from Mr Ranse that she sought to set up with him a false story of staying at his place”.
That was an accurate précis of the stance taken by the Crown Prosecutor which included in address:
“You might recall Ricky Ranse’s evidence that she approached him on the Wednesday asking him if he would say that she had been living with him rather than at Camp Street. Why would she ask him that, members of the jury? Is it that she is trying to distance herself from this scene”. (T782)
No direction was given to the jury as to how they might make use of the circumstance that Ms Tarrant attempted to set up a false alibi, if they so found. It was submitted by the Crown in the appeal:
“It is clear the Crown Prosecutor did not refer to ‘consciousness of guilt’ in terms. The matter was relied upon by the Crown as a matter going to her credibility and that the jury would not believe her statement given to the police that at the time of the offence she lived with Mr Ranse”.
It was attempted to consolidate this with express direction that, insofar as the jury found an accused to have lied, it was relied upon by the Crown only on the issue of credibility (of Mr Smit or Ms Tarrant, Mrs Smit having made no statement to police nor given evidence and such statements as she was evidenced to have made being used to inculpate her).
Of course if a false alibi has been set up then reliance on it inevitably involves lying: cf R v Harrol 1996 2 Cr App R 457. That was not this situation. Ms Tarrant was alleged to be asking Mr Ranse to lie for her. He knew what the truth was, he was not deceived by her and she was not lying to him.
The question therefore is what use could the jury make of a finding that Ms Tarrant sought the help of Mr Ranse to set up a false alibi. The answer must be that she therefore manifested a consciousness of guilt, whether or not that particular expression was engaged. The fact that that expression was not used is not to the point. The expressions used by both his Honour and the Crown Prosecutor inevitably convey an invitation to use the evidence in that way. It was incumbent upon his Honour to give a full direction as to how the jury could use this evidence to inculpate Ms Tarrant along the lines analogous to that which is required when a prosecution relies upon the telling of lies as evidencing such a consciousness: Edwards v The Queen 1993 178 CLR 193.
This ground is made out.
Ground 4 on behalf of Ms Tarrant was identical to that advanced by Ms Smit (failure to leave an alternative verdict of being an accessory after the fact to murder) and was not pressed.
The final ground on her behalf asserted that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence.
It was apparent that the real strength of the Crown case were the palm prints on the cricket bat and the circumstance that there was expert evidence that they were deposited in wet blood of the victim. There was also evidence (discussed in relation to ground 3) that could lead to a conclusion that the appellant manifested a consciousness of guilt by her attempt to have another assist her in setting up a false alibi. The deficiency was that the jury were not told how they might use that evidence but in considering the present ground, the existence of the evidence should not be ignored.
A reasonable jury, properly directed, had ample material upon which to conclude guilt. I do not conclude that the verdict cannot be supported, having regard to the evidence.
The ultimate issue is whether in the light of the success of all appellants, on at least ground 2 (Mr Smit and Ms Tarrant) or ground 5 (Mrs Smit) the conviction should be allowed to stand in accordance with the power vested by the proviso to s 6(1) of the Criminal Appeal Act.
Whilst I accept the Crown submission that on this issue separate consideration needs to be given to the cases of each appellant, it is of importance in my view that the Crown case did not (no doubt because only the participants could provide certainty) establish the precise role of each in the killing. Whilst it was said that the case against Steven Smit was stronger, it is important not to allow that assessment to be too readily made because the version which he gave to the police of sleeping through the commission of the murder by others who inflicted some one hundred injuries, might be thought absurd, rather than relying upon the positive case against him.
As earlier stated there are different powerful incriminating features in the cases against the individual accused, prominent being the interpretation of the blood spatter and the respective palm prints. There is, of course, other evidence relied upon by the Crown in the individual cases.
Because of the imprecision about the role of each accused (allowing for this purpose that the evidence sustains a finding of the involvement of them all) I do not perceive that it can be said that, had there been no blemish at the trial, an appropriately instructed jury acting reasonably on the evidence before it, and applying the correct onus and standard of proof would have, in each case, inevitably convicted the appellant of murder: see Wilde v The Queen 1998 164 CLR 365. These are not cases in which the proviso can appropriately be applied.
In each appeal therefore I propose that the appeal be allowed, the conviction and sentence quashed, and a new trial ordered.

JAMES J: I agree with Grove J.
HOEBEN J: I agree with Grove J and the orders proposed.

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LAST UPDATED: 16/07/2007

[2004] NSWCCA 409

3 December 2004