R v Tamme
[2004] VSCA 165
•15 September 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.362 of 2002
| THE QUEEN |
| v. |
| EMMA-JAINE TAMME |
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JUDGES: | WINNEKE, P., BATT and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 August 2004 | |
DATE OF JUDGMENT: | 15 September 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 165 | |
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Criminal law – Murder – Accused alleged to have committed murder in company with two accomplices – Accused pleading not guilty to murder but guilty to manslaughter – Co-accused turning Queen’s evidence - Corroboration – Whether judge erred in directions as to evidence capable of corroborating testimony of co-accused – Whether accused thereby deprived of a significant chance of being acquitted of murder - Complicity – Whether judge erred in directions as to acting in concert and aiding and abetting - Whether verdict of guilty of murder open upon the evidence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle QC with Mrs. C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr. M.J. Croucher | Victoria Legal Aid |
WINNEKE, P.:
For the reasons given by Nettle, J.A., which I have had the benefit of reading in draft, I agree that the application for leave to appeal against conviction should be allowed; that the appeal itself should also be allowed; and that a new trial should be had.
BATT, J.A.:
I concur in the reasons for judgment of Nettle, J.A., which I have had the considerable benefit of reading in draft.
NETTLE, J.A.:
On 8 November 2002 Emma-Jaine Tamme and Natasha Morgan were convicted of having murdered Meaghan Louise Smith[1] at Little River on 16 February 2001. One Michelle Jackson was also involved in the killing but she was not charged with murder. The Crown accepted her plea of guilty to manslaughter in return for her agreement to give evidence against Tamme and Morgan. Tamme now seeks leave to appeal from her conviction and from the sentence of 18 years imprisonment with a non parole period of 12 years which was imposed upon her.
[1]Aka Katriana Smyth.
Tamme was born 21 March 1979 and at relevant times lived alone in Ringwood. She worked in the sex industry. Natasha Morgan was born on 14 July 1978 and lived at Unit 3/58 Lynch Road, Fawkner. She also worked in the sex industry. Michelle Jackson was born on 31 January 1975 and at relevant times lived at the Fawkner unit with Morgan. Jackson also worked in the sex industry. All three women were users of cocaine, ecstasy and cannabis.
The deceased was born on 26 April 1970 and at relevant times lived alone in an apartment at 337A Nepean Highway, Frankston. She also worked in the sex
industry. She knew Jackson and at one stage she and Jackson planned to share accommodation. She did not meet Tamme or Morgan until a couple of days before her death.
The Crown’s case was that Jackson, Morgan and Tamme spent Thursday 15 February 2001 together at Morgan’s Fawkner unit and that they decided during that day that they would that night bash the deceased (either because she had let down Jackson over the plan to share accommodation; or because she was thought to be a police informer who might report their illicit use of drugs). To that end it was said that they devised a ruse to induce the deceased to accompany them in Morgan’s car to a remote place where the bashing was planned to take place. They conspired to tell the deceased that there was a job in Geelong for which she would be paid $500 and all the drugs she could use and then to stop at some quiet spot near to Geelong and there assault her. It was contended that in accordance with that plan the three women drove in Morgan’s white Holden Gemini car to the deceased’s flat in Frankston, arriving there late in the evening of 15 February 2001; saw off two male friends who were present when they arrived; subsequently left the premises and used an automatic teller machine close by to withdraw $300 from the deceased’s Commonwealth Bank account; and then drove with the deceased in Morgan’s car towards the city and onward towards Geelong, finally reaching Boadles Lane, Little River in the early hours of the morning of 16 February 2001.
According to the Crown, Morgan stopped the car at that point, an argument broke out and Morgan and Tamme then dragged the deceased from the car while Jackson remained in the car. It was said that Morgan and Tamme thereupon attacked the deceased with a knife and a broken bottle, and thus inflicted numerous stab wounds to various parts of her upper body. It was also alleged that one of them struck the deceased to the head with a rock a number of times. The deceased died almost immediately. It was contended that Jackson helped Morgan and Tamme place the deceased’s body into the boot of the car and that the three women then drove back to Morgan’s Fawkner unit with the body in the boot. As they drove they heard sounds from the boot which suggested that the deceased may still have been alive but, according to the Crown, one or other of them turned up the volume of the car radio in order to cover the sounds. It was alleged that upon arriving back at the Fawkner unit, Jackson hid a number of items including clothing in a bag in the garage and that Morgan and Tamme contacted some male friends and sought advice as to how best to dispose of the body.
The Crown further alleged that Jackson, Morgan and Tamme drove the next morning to Broadhurst Creek, Kilmore, with the body in the boot, and that their two male friends travelled in convoy in their own car and provided shovels for digging a grave for the deceased. It was said, however, that they found the ground too dry and hard to dig and therefore simply dumped the deceased’s body over an embankment at the side of the creek bed.
The body was found by a bushwalker during the afternoon of Sunday, 18 February 2001 and a post mortem examination was conducted by pathologist, Dr Malcolm Dodd, on Monday, 19 February 2001. It revealed that the deceased had sustained a number of stab wounds to the upper body in conjunction with other related injuries including cuts to the face, chest, arms and back and blunt force trauma to the head. Dr Dodd considered that injuries to the left arm were consistent with self-defence.
Jackson was arrested at the Coburg Motor Inn on Sunday, 18 February 2001 and interviewed by the Homicide Squad that day. She stated that she had worked in the sex industry with the deceased and the applicant. She admitted going to the deceased’s flat in company with the applicant and Morgan. She also admitted travelling in Morgan’s white Gemini to Little River where she said she stayed while Morgan and the applicant attacked the deceased. She alleged that she saw Morgan and the applicant hold the deceased down and that the deceased was at one point fighting for breath and crying out for help. Jackson claimed that she did not inflict any of the injuries herself. She admitted, however, that she assisted Morgan and the applicant to put the deceased’s body into the boot of the white Gemini and that she was involved in discussions about and in the disposal of the deceased’s body at Kilmore. She also admitted that she and Morgan and the applicant had each taken a range of drugs on the day of the killing, including ecstasy, marijuana and cocaine.
Morgan left Melbourne and travelled to Adelaide but returned to Mildura to her mother’s home. She contacted the police and a short time later was transported to Melbourne for interview by the Homicide Squad. She admitted to a version of events similar to that given by Jackson. But there were some differences. She stated that Tamme and deceased had argued at Little River and that the deceased had taken a swing at Tamme and that Morgan had then punched the deceased in the face which resulted in her rolling around on the ground with the deceased. Morgan admitted stabbing the deceased once but was otherwise unable to explain the events which unfolded. She too said that she and Jackson and Tamme had taken a range of drugs on the day, including ecstasy, marijuana and cocaine. She further admitted that she had assisted in the disposal of the deceased’s body.
Tamme was arrested two weeks after the death of the deceased and was interviewed by the Homicide Squad on Friday, 2 March 2001. Acting on legal advice, she declined to make any comment in relation to the allegations.
The grounds of appeal
The grounds of appeal stated in the applicant’s notice of application are that the jury erred in its finding of guilt (Ground 1) and that the verdict of guilt was not properly available (Ground 2). On the hearing of the appeal Mr Croucher was given leave to add that the judge erred in the directions his Honour gave on complicity (Ground 4) and that the judge erred in the warning his Honour gave concerning the evidence of Michelle Jackson and the evidence which was capable of corroborating her testimony (Ground 7). Mr Croucher was refused leave to add several other grounds.[2] I propose to deal first with Ground 7.
[2]Those proposed grounds of appeal were directed to directions given by the judge to the jury on intention and confessions (Ground 5); what was said to be a failure to warn the jury as to the effects of drugs on the applicant (Ground 6); and that an aggregate of errors caused the trial to miscarry (Ground 8).
Corroboration
The Crown’s case against Tamme was largely based on Jackson’s evidence and so I start by setting out in what follows the substance of her testimony:
1) Jackson stated that she had been working in the sex industry in Melbourne since about 1998 and that she recalled meeting the deceased about halfway through 2000. They had worked in the same places from time to time. She met Morgan some time before September 2000 and they worked together briefly. She stated that she moved in with Morgan at Unit 3/58 Lynch Road, Fawkner in September or October 2000. Morgan then injured her arm and was hospitalised in January 2001 and Jackson moved out of Morgan’s unit upon her return from hospital.
2) Jackson said that she had worked with the deceased between December 2000 and January 2001 and struck up a friendship with her. They planned for a while to share accommodation in Coburg. But the arrangement fell through after the deceased chose instead to live with a man and Jackson was disappointed about that. Jackson admitted that she was using drugs including speed and ecstasy at that time.
3) Jackson said that she moved back in with Morgan at the Fawkner unit during February 2001 and that the deceased thereafter visited the Fawkner unit on a number of occasions. Jackson swore that after one such occasion, a man named Mohammed Oueida warned Jackson and Morgan that he believed the deceased to be a police informer and that they should not trust her.
4) Jackson stated that she met Tamme some time before February 2001 and worked with her on a number of occasions. She said that she saw Tamme during the week commencing 12 February 2001 at a nightclub called “Hard Candy” in the city and that Tamme was on that occasion with a man named Terrence and with another girl whom Jackson did not know. Jackson said that Morgan and Mohammed Oueida were there too, and had left together, and that Terrence dropped her off at the corner of Bell Street and Sydney Road, where she caught a cab to Fawkner. Jackson admitted that she took drugs at the nightclub including speed and a couple of ecstasy tablets.
5) Jackson swore that she was next contacted by Mohammed Oueida at about midnight on Wednesday the 14th February 2001 and that he told her that he had had a visit from a mutual acquaintance, Sam Siad. Terrence and Sam Siad then came to the Fawkner unit and from there Jackson went with them to Mahoneys Motor Inn, where she met Tamme. She said that she, Tamme, Oueida and Siad had all taken drugs, including ecstasy and cannabis, and that she and Tamme had then returned to the Fawkner unit where they stayed the night together. Morgan was asleep when they came in.
6) Jackson stated that she had introduced Tamme to Morgan the next morning, 15 February 2001. Later that morning, Jackson drove to Liquorland, with another male who was visiting the unit, and there purchased a bottle of Jacobs Creek wine and some bourbon. She returned to the unit and the male left and at that time she observed Morgan and Tamme talking together on the couch.
7) Jackson said that she consumed some bourbon and marijuana with cocaine “on the top” and that it was then that the three women formulated the plan to bash the deceased. Because of the importance of that part of her evidence, I set it out in full:
“During the course of that morning were there any discussions about Katriana [the deceased]?--- Only like conversation like towards when I was supposed to have gone to work because I – at Oasis. That is when Natasha [Morgan] came out and said we are all going to go around and bash Katriana and that, just tell her we will go around there, tell her there is a big job happening, $500, all the drugs you can have and, you know, that would easily entice her to come.
Where was the big job? --- In Geelong.
Was there any reason discussed with you as to why she would be taken aback? [sic] --- Well, down the track I - - -
No, I don’t want you to guess. Tell us, was there anything said to you at that time as to why? --- No, there wasn’t.
That is okay. The story about Geelong, was there any truth in that story? --- No.
When it was said we are going to go around and bash her, who was going to be doing that ? --- Natasha and Emma [the applicant]. She just said we are going to go around and bash her, so yes.
Before you left the house, do you recall anything being said to you by either of the girls, Natasha or Emma, as to what they were thinking about or how they felt? --- They just said that they were – Natasha said to me that she wanted to go around and bash her.
Did Emma say anything to you on that occasion before you left? --- She said she was psyched, she was ready. ‘I’m psyched, I’m psyched.’”
8) Jackson said that she, Morgan and the applicant travelled to the deceased’s flat in Morgan’s white Gemini. Morgan was driving, Jackson was seated in the front passenger seat and the applicant was seated in the rear behind Morgan. She said that they reached the deceased’s flat early in the morning and there were two men with the deceased at the flat when they arrived. Jackson recalled that at one stage Morgan and Tamme had gone with the deceased to an ATM machine to get some money (which she later heard was an amount of $300.00). Jackson said that she waited at the flat with the two men and had some marijuana and that the men left after the other women returned.
9) According to Jackson the three women and the deceased left the flat in Morgan’s car. Morgan drove the car with Jackson in the front passenger seat, Tamme behind Morgan and the deceased behind Jackson. Jackson said that she recalled the car being stopped at one stage of the journey and all three women there taking cocaine. Jackson said that the last stop was the murder site at Werribee after an argument began. Jackson said that when that happened Morgan had veered off the road saying the words: “We are going to have to do her”. According to Jackson, Tamme then said to the deceased: “You are a dog, aren’t you, an informer?”, and the deceased denied the allegation; Morgan then looked at Jackson and said: “Here we go”; Tamme then said to the deceased: “Well it looks like you are not coming home tonight”; and Morgan then responded: “You’re bloody well right there, that’s right”.
10) Jackson said that the argument lasted for about five minutes until Tamme dragged the deceased out of the car by the hair and that Morgan had also got out. Jackson said that she remained in the car for about five minutes and during that time she heard scuffling outside the car. She alleged that when she then emerged from the car she saw Morgan and Tamme hovering over the deceased and using force on the upper torso of the deceased’s body - she described their movements as “just heaving into her” - and that the deceased was calling for help. Jackson swore that she went over to the deceased and saw Morgan with a knife in her right hand and that she asked Morgan to give her the knife so that she could do it instead of Morgan. She described that request as using “reverse psychology” to try to save the deceased. Jackson said that she then went to the deceased with the knife and lent over the deceased and heard the deceased say: “I can’t breathe, I can’t breathe”. She alleged that she told the deceased to take deep breaths and she then feigned stabbing the deceased by holding the knife in her hand, stretching out her arm and stabbing the knife into the ground so as to give the appearance of stabbing the deceased. Jackson said that Morgan and Tamme came over and that Morgan grabbed the knife out of the ground and pushed Jackson out of the way. Jackson claimed that she was scared that Morgan would stab her for trying to save the deceased but that Morgan and Tamme had instead “just honed in on her (the deceased)” (by which she meant that they appeared to be beating her, but that she did not see any stabbing with the knife).
11) Jackson further alleged that she saw Morgan smash a bottle on a rock and thrust the broken bottle into the middle part of the deceased. She said that at that point she and the deceased got up and started to run together a few paces, but the deceased tripped over and ran no more. Jackson said that Morgan then challenged her as to whether she was trying to save the deceased and she denied that she was trying to do so. She said that she also recalled seeing some headlights and that they startled her. She stated that the deceased’s body was put in the boot of the car although she said that she did not assist.
12) Jackson said that she drove the car back to Melbourne because Morgan was too distressed to drive. She said that after driving for about five minutes she heard two loud thumps from the boot and that Morgan or Tamme said: “She’s still alive, can you hear the thumps?” Jackson said that Tamme then turned up the music in the car and that they drove on to K-Mart in Campbellfield, arriving there early in the morning, with the idea of dumping the body in the car park. There was, however, a police car in the car park and so they left and travelled on to Mohammed Oueida’s house in Fawkner. Jackson said that she went in to Oueida’s house while the other women remained in the car. According to her, she told Oueida and Oueida’s girlfriend, Nadine, what had happened and then took a shower. When she came out of the shower she observed that Morgan and Tamme had come into the flat and were talking to Oueida. Jackson said that she then left the flat to buy a packet of cigarettes at the corner shop and she had opened the boot of the car, at Oueida’s request, to check whether the deceased was still alive. She observed that the deceased’s eyes were open but that she was not moving.
13) Jackson said that she, Morgan and Tamme then returned to Morgan’s unit in Fawkner and parked the car in the garage. Once back at the flat she had a conversation with Morgan or the applicant about what had happened to the deceased. The importance of that evidence is such that also I set it out in full:
“Once back to Lynch Road Fawkner, did you have a conversation with Natasha [Morgan] or Emma [the applicant] about what had happened to Katriana[the deceased]?---Yes. I’d asked them how many times each one of them stabbed her, because I hadn’t seen - I thought well, the logical thing to do when I am going to be questioned , because I hadn’t seen anything to ask.
You asked?---And Natasha – sorry, Emma answered first. She was sitting on the lounge and Natasha is standing up and I said to Emma, sort of the, in a casual, but most of the time just from my own safety, I’d said, ‘so how many times did you stab her Emma’, and she goes, ‘oh here, there’. I said ‘oh’, just to, I wanted to know if she would have been the one to cause the death, and I’d said to her, ‘Did you stab her in the heart?’, and she said, ‘Yeah, stabbed her in here, out there everywhere (demonstrating) and 15 times’, and then I said to Natasha, ‘How many times did you stab her?’ and she said, ‘Three times’. She said, ‘I stabbed her in the back, the arm, the leg and I bottled her in the face’ and [she said] that she hoped that there were bits of glass sticking out of her face."
14) Jackson said that after a while Sam and Terrence arrived at the unit and that she discussed with them what they could do to help. She said that Morgan came up with the idea of torching the car with the body in it but that she (Jackson) was opposed to that idea and had taken some clothing and other items from the car and hidden them in furniture in the garage and cleaned the inside of the car. She said that after Sam and Terrence had gone she and Morgan went next door to Morgan’s sister’s unit and that Morgan told her not to say anything to Morgan’s sister about what had happened.
15) Sam and Terrence returned in their own car at about midday that day to assist with burying the deceased’s body. They then drove ahead to the intended burial site at Kilmore and Jackson drove behind in Morgan’s car with Morgan and Tamme, and the body of the deceased still in the boot. Morgan had a minor collision with her sister’s car when initially starting the journey, taking off the side mirror of that vehicle, and as a result Jackson drove the rest of the way behind Sam and Terrence to Kilmore.
16) Jackson said that once at Kilmore they turned into a little side dirt track and stopped after a short distance. She said that Morgan attempted to dig a hole with a shovel. According to Jackson, Tamme then asked her to give her the keys to the car, which she did, and Tamme opened the boot in order to get out the body. Jackson said that she refused to assist and so Tamme, Morgan and Terrence had taken it out. But they were unable to dig a grave in the dry ground and so they had thrown the body over the side of an embankment. Jackson said that she got a towel out of the car and went down to the deceased’s body and wiped it in order to remove any fingerprints. She then travelled with the others back to the Fawkner unit.
17) Jackson further alleged that Tamme had the next morning apologised to Jackson for "trying to knock [Jackson] off”. That evidence is also of sufficient importance to warrant that it be set out in full:
“What about Emma and Natasha, did they say anything to you about what they were going to do? --- Yes, it was the next morning, that’s when I was in bed, my face, my back against the door of the entrance of my bedroom and Emma comes in and gives me a cuddle and she says I’m sorry about last night, and not about the murder itself, but trying to knock me off. She says come on, come on, we’re all sisters, we’ve all got to stick together (Witness distressed) and let’s go.
After that did they leave?--- Yes.
Who left first? ---They arranged, they were packing up, Natasha was packing up all her stuff and I said I’m not going nowhere because I’ve got nothing to hide.
Do you know what Natasha Morgan did? Did you see whether she left by herself?--- She left with another person.
What about Emma?--- She also left with someone else.”
18) In cross examination Jackson conceded that she was disappointed and angry when the deceased did not go ahead with plans to move in to a house with her. She also conceded that her statement to police was made after she had offered to give evidence against Morgan and the applicant and after she agreed to plead guilty to manslaughter. She admitted that she understood that if she deviated from her statement in a significant way she could be brought back before the court and re-sentenced. Jackson also conceded that whereas in evidence in chief she stated that Oueida was concerned about the deceased being a police informer, she had said no such thing when asked by police whether anyone other than Morgan believed her to be an informer.
19) Jackson agreed that she had not at any stage leading up to the death of the deceased expressed any concern about the deceased being a police informer.
20) Jackson agreed that she had not at any stage discussed with the deceased matters that in chief she said were the reason for her travelling to the deceased’s flat on the night of the killing.
21) Jackson said that when the car was brought to a halt it was near a large rock which was higher than the body of the car and that she heard Morgan smashing a bottle against the rock. She denied, however, that she had seen Morgan do so. Yet on the previous day of the trial, Jackson had demonstrated to the jury how the bottle was smashed.
22) Jackson conceded that she had told the court on the voire dire that Morgan was standing ten paces away from the deceased holding a knife in her hand while the applicant was punching the deceased. But the evidence which she had given in chief was that both Morgan and the applicant had the deceased on the ground and were “heaving into her”.
23) Jackson conceded that prior to making her statement in June 2002 she had not told the police that she had grabbed the knife from Morgan. She also conceded that she had told the police that Morgan was bending down smashing glass into the deceased’s face whereas she had told the jury in her evidence in chief that she had seen Morgan thrusting the glass into the deceased’s stomach area. She admitted that she had told police she had taken the deceased’s credit card out of her bag before she saw the applicant doing something with the bag. She acknowledged that that was inconsistent with her evidence in chief as to not taking the credit card until after the applicant and Morgan left the flat on the Saturday following the murder.
24) Jackson said that she had appreciated that the deceased was in jeopardy but agreed that she had made no attempt to communicate that fact to her while they were at the deceased’s flat in Frankston.
25) She agreed that she had found no comfort in the presence of two male friends of the deceased at the latter’s flat on the night of the killing and that she had not told those men that there had been talk of harming the deceased.
26) She was unable to explain how her thumb print was found on the inside of a piece of the broken wine bottle at the murder scene and that it was the only finger print found on the bottle.
27) She conceded that when she was examined by forensic physician, Dr. Sean Clarke, on 19 February 2001 she had told him that she had some scratches on her legs caused by branches of trees and bushes on Friday, 16 February 2001.
28) She was not able to explain why the knife used to stab the deceased was not amongst the contents of the blue bag in which she stated she had placed it. She said that she had hidden it in furniture in her garage.
29) She agreed that she had not told police anything to the effect of the allegations made in her evidence in chief that Morgan had threatened to harm Jackson’s daughter if Jackson lagged on them; and that the applicant tried to poison her; and that Oueida and Terrence had come to Morgan’s flat on the night of 17 February 2001 and told Jackson she had better go to Queensland.
Dr Dodd’s evidence
In order to understand the effect of the direction which the judge gave about corroboration, it is also necessary be aware of the substance of the evidence given by Dr Dodd. Dr Dodd said that he conducted an autopsy on the body of the deceased on 19 February 2001. He said that he observed a number of injuries, including stab wounds to the chest and abdomen (being injuries numbered 5, 7 and 9 and depicted in photographs 152, 143 and 148); two stab wounds to the left upper arm (being injuries numbered 10 and 11); one stab wound to the forearm (being injuries numbered 17 and depicted in photograph 156); and two further stab wounds to the back of the deceased (being injuries numbered 18 and 19 and depicted in photographs 131 and 147). Dr Dodd said that the deceased’s left lung had collapsed. She also had a large irregular crack to the skull which was consistent with her being struck on the head by a large rock and that it would have required a forceful blow. In Dr Dodd’s opinion the injuries to the deceased’s left arm may represent defensive type injuries. The cause of death was multiple stab injuries and significant blunt force trauma to the head.
In cross examination Dr Dodd said that he could not exclude the possibility that the injury to the deceased’s skull was caused as a result of the deceased falling onto a firm surface. He also said that, based upon her very low blood pressure, he considered that she would have been very close to death at the time of the blow or force that fractured her skull and would have died within a few minutes of the fracture to the skull.
The corroboration direction
Jackson had obvious reason to down play her own role in the crime and to attempt to give false evidence in order to shift the blame to others. She was not only an accomplice but she had turned Queen’s evidence on the basis of an arrangement that the Crown would accept her plea of guilty to manslaughter. The jury therefore needed to be warned to examine Jackson’s evidence very closely and that it would be dangerous for them to convict Tamme on the basis of Jackson’s evidence unless that evidence were corroborated. It was also incumbent upon the judge to direct the jury as to evidence capable of corroborating Jackson's testimony and, in the case of any doubt, as to any evidence which could not be so regarded.
His Honour began by dealing with the first of those requirements by directing the jury that it was a matter for them to decide if Jackson were an accomplice. After exceptions had been taken his Honour further directed the jury that there was really no issue that Michelle Jackson was an accomplice and in effect that they should approach the matter on the basis that she was. It is not suggested that what his Honour did on that score was in any way inadequate.
The judge next dealt with the subject of corroboration in general by giving to the jury a conventional direction that corroboration is evidence from a source independent of the accomplice which implicates the accused in the crime charged, by tending to show both that the crime was committed and that the accused committed it[3], and by explaining that whereas it was a job for the judge to determine as a matter of law whether there was any evidence capable of amounting to corroboration, it was the duty of the jury as a matter of fact to consider such evidence as he directed was capable of amounting to corroboration to determine whether they accepted the evidence and if they did to determine whether in their opinion it corroborated the evidence of the accomplice[4]. It is not suggested that what his Honour did on that score was in any way defective.
[3]Doney v The Queen (1990) 171 CLR 207 at p. 211-2; cf. R v Trong Duy Ngo [2002] VSCA 188 [33].
[4]Popovic v Derks [1961] VR 413 at p.420; R v Heyde (1990) 20 NSWLR 234 at p.242.
Having thus identified the evidence of Jackson as requiring corroboration, and the nature of corroboration, the judge turned next to the question of the evidence which was capable of corroborating Jackson’s testimony. His Honour directed the jury that:
“In this case there is evidence which I direct you is, as a matter of law, capable of amounting to corroboration of some matters. It is for you to say whether you accept it and for you to say whether you regard it as being corroborative in fact.
As to Michelle Jackson, her evidence implicates the accused Natasha Morgan in that it provides some factual material for inferences including Natasha Morgan’s state of mind relative to matters such as the nature of a possible understanding between Natasha Morgan and Emma Tamme as to what might be done to the deceased; the use of words by Natasha Morgan prior to an assault on the deceased; the making of an assault on the deceased by Natasha Morgan; the holding of a knife by Natasha Morgan at Little River; the breaking and use of a bottle by Natasha Morgan at Little River; the making of a confession by Natasha Morgan at the Fawkner unit of having stabbed and glassed the deceased. There is some evidence consistent with corroborating some aspects of that evidence. It comes in part from aspects of the record of interview of Natasha Morgan; it comes in part from the evidence of Dr Dodd as the character of the injuries to the deceased.
The evidence of Michelle Jackson also implicates the accused Emma Tamme in that it provides some factual material for inferences as to her state of mind relative to the nature of a possible understanding between Natasha Morgan and Emma Tamme as to what might be done to the deceased, the use of words by Emma Tamme prior to an assault on the deceased, the making of an assault on the deceased by Emma Tamme and the making of a confession by Emma Tamme at the Fawkner unit of having stabbed the deceased many times. There is only limited evidence capable of corroborating the last mentioned aspect of that evidence. It comes from the evidence of Dr Dodd as to the character of the injuries to the deceased. [My emphasis].
It is for you to consider each item of that evidence. It is for you to determine whether you accept the evidence itself and if you do, whether you regard it as corroborating the evidence of the accomplice. If you do not find any corroborating evidence, you must regard the warning I have given: it is dangerous to convict and accused on the uncorroborated evidence of an accomplice. You may do so, but you may do so only if after subjecting the accomplice’s evidence to close and careful scrutiny you are satisfied by it and satisfied to act upon it notwithstanding its source and notwithstanding that it is uncorroborated.”
After taking exceptions, his Honour also gave to the jury the following further direction:
“Coming back to the position as to the evidence of accomplices, it is important that it be appreciated that you are concerned with evidence implicating the specific accused in the crime of murder as distinct from being involved in an unlawful killing. It is also important to add two other riders in that regard; one is that because Michelle Jackson has been sentenced for complicity in this unlawful killing through her pleading guilty to manslaughter, the matters as to which I should have warned you should have included the matter that [has] been raised by all of counsel and that is that the sentence imposed on Michelle Jackson was discounted significantly because of her willingness to cooperate with the prosecution and there was an obligation in the course of sentencing to take into account the degree to which Michelle Jackson had cooperated and undertaken to cooperate with the police and the prosecution and that where in those circumstances there has been that undertaking, there is the risk of the sentence being reviewed in the event of there being non-cooperation.
The other point that I might have made but did not make was that which relates to the distinction between evidence which corroborates the evidence of an accomplice and that which merely supports credit. I referred to some specific evidence which I said can be used as corroboration because it goes to maters which might implicate the particular accused in the crime. To the extent that some matters are merely corroborating in the sense of going to the credit of the witness Michelle Jackson, that is to be distinguished from the material with corroborates her evidence. [My emphasis]. Can I go back to the basic proposition in relation to this evidence of accomplice. It is important that I should warn you that it can be dangerous to convict in the absence of corroboration, that whether you accept the evidence that I have referred to as corroborative is a matter for you. The evidence must be evidence [which is independent] of Michelle Jackson, but it is open to you to convict the particular accused of the crime of murder and I make it clear there, of the crime of murder, [original emphasis] not in any broad sense as expressed but specifically in relation to the crime of murder, provided you are satisfied beyond reasonable doubt that you should accept that evidence. But it is important to understand the strong warning that is involved in saying that it is dangerous to convict in the absence of corroboration.”
The attack on the corroboration direction
Mr Croucher for the applicant makes three attacks on that part of his Honour’s charge:
· First, he contends that the judge was in error in directing the jury that Dr Dodd’s evidence was capable of corroborating Jackson’s testimony.
· Secondly, he argues that the judge erred in failing to instruct the jury that, in so far as Jackson’s evidence of the applicant’s admissions was consistent with some of the deceased’s injuries, that was hardly surprising given that Jackson saw the deceased’s body following the killing and may well have been shifting the blame to the applicant for injuries inflicted by Jackson.
· Thirdly, he submits that the judge erred in failing to direct the jury that any corroboration or credit afforded to Jackson’s testimony by Morgan’s record of interview could not be taken into account as corroboration or as supporting credit of Jackson’s testimony as against the applicant.
The meaning of the corroboration direction
I begin with the first of those points by drawing attention in the emphasised passage of the direction in which the judge referred to “the last mentioned aspect of that evidence”. Mr Croucher urged us to accept that the jury may have interpreted that as referring to the all of the evidence of Jackson which implicated the applicant, as opposed to only the last mentioned aspect of the evidence of Jackson which implicated the applicant. I do not accept that contention.
As has been seen, the judge began the direction on evidence capable of constituting corroboration with the observation that “there is evidence which I direct you is, as a matter of law, capable of amounting to corroboration of some matters”, and then proceeded to identify those matters seriatim under the headings of “evidence [of Michelle Jackson which] implicates the accused Natasha Morgan” and “evidence of Michelle Jackson [which] implicates the accused Emma Tamme”. When the judge then referred almost immediately to the “the last mentioned aspect of the evidence”, the jury would surely have taken his Honour to be referring to the last of the matters that had just been mentioned, namely, Jackson’s evidence of the oral admissions which she said that the applicant had made as to stabbing the deceased. As a matter of semasiology, “last” implied that the judge was referring to the last of more than two aspects of the evidence to which he had just referred, and as a matter of ordinary perception of the spoken word I see no reason to doubt that that the jury would have taken it to mean just that.
Was Dr Dodd’s evidence capable of corroborating Michelle Jackson?
Mr Croucher then contended that even as so construed the direction was erroneous, because Dr Dodd’s evidence was patently incapable of corroborating Jackson’s evidence as to the alleged oral admissions which she said that the applicant had made. In my opinion that contention is correct. Dr Dodd’s testimony was incapable of constituting corroboration, in both the conventional sense – because, although it may have tended to establish that a crime of murder had been committed, it did nothing to connect the applicant with that offence – and, for reasons which I shall endeavour now to explain, also in the only other sense that might be regarded as relevant.
An accomplice who turns Queen’s evidence in return for favourable treatment and thus gives evidence that the accused made an oral confession to the accomplice is for present purposes very much like a prison informer who gives evidence that an accused made an oral confession to the informer. Thus, to adopt and adapt the observations of Deane J in Pollitt v The Queen[5], it may be said that:
“Where [an accomplice] supplies information after encouragement by the authorities, the likelihood is that there will have already existed some evidentiary material which was known to the authorities and which connected the accused with the alleged offence…In such circumstances, a warning to the effect that it is dangerous to rely on [the accomplice’s evidence of the] oral confessional statement unless that evidence is corroborated by other evidence connecting or tending to connect the accused with the offence charged really serves little purpose. Indeed such a warning could conceivably have the unintended effect of conveying to the jury a suggestion that, once they find some corroboration, it is safe to rely upon such evidence. If a corroboration warning is to be of real use in such a context, it must be in terms which direct the need for corroboration towards the reliability of the particular evidence, that is to say, material which corroborates the actual making of the oral confessional statement. An example of that type of corroboration is evidence establishing both that disputed material in the alleged oral confessional statement is accurate and that that material would not have been known to the witness if the alleged confessional statement had not been made.” [Emphasis added].
[5](1992) 174 CLR 558 at pp.587 – 588.
It follows that evidence falling short of corroboration in the conventional sense might still have corroborated Jackson’s evidence as to the alleged oral admission, provided that it tended to establish the accuracy of disputed factual material in the alleged oral admission and that Jackson would not have known of that material if the admission had not been made. As Pollitt demonstrates, it is essential that both conditions be satisfied in order to avoid the all too present possibility of fabrication by the informant in return for favourable treatment.
As has been seen, Dr Dodd’s evidence may have been capable of establishing disputed factual material in the alleged oral admissions, in that it tended to confirm that the number of occasions on which the deceased was stabbed was of the same order as the number of times to which Jackson said that the applicant had admitted stabbing the deceased. But plainly it said nothing at all of whether Jackson could have known of the details apart for the alleged oral confession.
Mr McArdle on behalf of the Crown argued that it was open to the jury to conclude from all of the circumstances that the stabbing details would not have been known to Jackson unless the alleged oral admission had been made. He submitted further that, so long as that prospect existed, Dr Dodd’s evidence was capable of corroborating Jackson’s testimony as to the making of the alleged oral admissions. But even if that is so, it does not overcome the problem inherent in the direction. The problem is that Dr Dodd’s evidence does not of itself establish or suggest that Jackson’s only source of knowledge of the details was the alleged oral admissions, and yet the jury were in effect directed that Dr Dodd’s evidence was capable of doing just that. Putting it another way, even if there were other evidence sufficient to establish that the alleged oral admission was the only way in which Jackson could have known of the details of the stabbing, the jury were not directed as to what that other evidence was or even as to the necessity to find such other evidence. To the contrary, they were told that they were entitled to treat Dr Dodd’s evidence as of itself corroborating Jackson’s evidence as to the alleged oral admissions. Moreover, my own examination of the evidence suggests that Jackson had any amount of opportunity to learn of the number of stab wounds by reason of her own participation in the crime and the disposal of the deceased’s body, and perhaps by reason of whatever may have been put to her in the course of interview or by others.
The consequences of the misdirection on corroboration
It is likely that the jury would have accepted Dr Dodd’s evidence. He was a highly qualified and respected pathologist whose evidence was and would be seen as impartial. Consequently, if the jury acted on the basis of the misdirection that Dr Dodd’s evidence was capable of corroborating Jackson’s testimony as to the alleged oral admissions, they may well have considered themselves entitled to accept Jackson’s evidence as to those alleged admissions and to have convicted the applicant on the basis of the alleged admissions. Contrastingly, if the jury had been correctly directed as to corroboration, and acted in accordance with such a direction, they would have approached the matter on the basis that Jackson’s evidence as to the alleged oral admissions was not corroborated and that it was therefore dangerous to convict on the basis of the admissions. It follows, as it appears to me, that the effect of the misdirection was to deprive the applicant of a significant chance of acquittal.
Mr McArdle argued that there was no substantial miscarriage of justice and that the proviso should be applied. He submitted that even if one were to put all of Jackson’s evidence to one side as unacceptable or extremely doubtful, the other evidence admissible against Tamme, combined with her plea of guilty to manslaughter, left no doubt as to her involvement in a pre-planned frenzied attack on the deceased at a remote location. In those circumstances, he submitted, the jury could not reasonably have reached any conclusion other than that the applicant was guilty of murder.
I am not persuaded by that submission. So far as the other evidence is concerned, it appears to me that there is very little apart from Jackson’s evidence that is capable of supporting a conviction for murder. Equally, the plea of guilty to manslaughter appears incapable of filling the gaps unless one makes a number of assumptions that are not necessarily warranted. I start with the other evidence.
The other evidence
(i) Sharron Christine Cole, housewife
Cole gave evidence that she was riding her horse along Boadles Lane in Little River at about 9.40 a.m. on Tuesday, 20 February 2001 when she noticed some green broken glass and a piece of mobile phone in the long grass on the verge of the road approximately 150 metres from the intersection of Edgars Road and Boadles Lane. She said that she also noticed a shoe in the same area on Friday, 16 February 2001 and tyre marks in the gravel on the side of the road. Self evidently, Coles evidence does nothing to tie the applicant to the killing or suggest that it was murder.
(ii) Trevor Wayne Evans, Sergeant of Police, Crime Scene Unit, Victorian Forensic Science Centre
Sergeant Evans deposed that he went to Boadles Lane, Little River on Wednesday, 21 February 2001 in order to examine the scene of the offence. He observed an area of dark blood staining on the side of the road to which he attached marker number 1 (Photograph 12), as well as a number of other items to which he attached markers as follows: Marker No. 2 – broken glass, the body of a mobile phone (Photographs 12, 13 and 14); Marker No. 4 – Phone battery (Photograph 23); Sim card – located east of the battery (Photo 28); Marker No. 3 – Blood stained rock (Photo 19); Exhibit “3 “ – Rock (T. 321); Markers 6, 7 and 10 – Broken glass from red wine bottle (Photographs 15, 30, 31, 32, 41 and 42); Marker No. 5 – Shoe (Photographs 25 and 26); Blue elastic hair tie (Photographs 16 and 17); Marker No. 8– Disposable lighter (Photographs 34 and 35); Marker No. 9 – Cigarette butts (Photographs 36 – 40); and tyre marks on verge of road (Photographs 45 and 46). Exhibit “4” – a videotape of the crime scene - played to the Court.
Under cross examination by counsel for Morgan, Sergeant Evans said that he had not observed any rock of about waist height in the immediate vicinity.
Sergeant Evans’ evidence demonstrates or at least suggests that the killing was violent and possibly, because of the location, that it was planned. It does not, however, implicate the applicant in the killing or say anything as to whether her role as such was more than the manslaughter to which she pleaded guilty.
(iii) Robert Chrystie Hall, farmer/truck driver
Hall gave evidence that on Sunday, 18 February 2001, at about 4.30 in the afternoon he had walked about 150 metres from his residence towards Broadhurst Creek Reserve. When he reached the entrance to Broadhurst Creek Reserve he walked along an access track and across a small footbridge continuing on the access track for a further 100 metres. He said that when he came to the end of the track at an embankment dropping down to the Broadhurst Creek he saw the body of a young female about three metres away lying on her left side. She was dressed in a white top and black jeans and wearing black boots, and he observed blood staining on the top of her hair. He said that he used his mobile phone to contact police.
That evidence confirms the violent nature of the killing and perhaps an intention to hide it. It does not implicate the applicant or suggest that her involvement was anything more than manslaughter.
(iv) Mohammed Sharif Oueida, concrete pump operator
Oueida gave evidence that he had known Michelle Jackson since 1997 and that she had visited his house and on occasions had brought other girls with her. On one such occasion he met Natasha Morgan and subsequently formed a relationship with her. The relationship began in or about September 2000, and lasted for about four months, and during the relationship he sometimes stayed at Morgan’s unit in Fawkner. In December 2000 he introduced Jackson to his friend Nadim and the two of them then formed a relationship. He said that in January 2001 he visited Jackson and Nadim at the Quest hotel in Lygon Street, where Jackson and Nadim were then staying, and on that occasion he told Nadim that he preferred the deceased to Jackson. In the same month he broke up with Jackson. Oueida said that on the night of 15 February 2001 Jackson had telephoned him and said that she wanted to know the whereabouts of Nadim and that later in the early hours of the morning of 16 February 2001 Jackson had come to his flat. He said that she had showered and then lay on the bed next to him talking, although he could not recall what she had talked about, and then borrowed some money from him and left. According to Oueida, Jackson did not tell him that she had been involved in the death of Meaghan Louise Smith.
Under cross examination by the applicant’s counsel Oueida agreed that he did not go to Morgan’s flat in Fawkner between the time Jackson came to his flat and the following Sunday evening.
It appears to me that the only significance of that evidence for present purposes is that it tends to throw doubt on some aspects of Jackson’s testimony
(v) Frances Morgan, dressmaker
Frances Morgan gave evidence that towards the end of the year 2000 her sister Natasha Morgan and Michelle Jackson began to share the unit next to hers at 58 Lynch Road, Fawkner. Jackson moved out a month or so later but then moved back in about a week before the killing. Frances Morgan stated that a white Gemini motor car which belonged to her father John Morgan was kept at her sister’s unit.
She said that on Friday, 16 February 2001 she noticed that there was some damage to the front passenger side door of her car. She saw her sister that morning at about 9.00 am and spoke to her in the driveway. She said that her sister appeared to be very upset and told her that “something really bad had happened” but that she did not elaborate. Frances Morgan said that she saw her sister again that evening, when she appeared to be affected by drugs, and on that occasion she spoke to her sister about the damage to her car and told her that she should get some quotes for the repair of the damage. Frances Morgan had gone out the next day and when she returned at about midnight she found a note from her sister which said that she had had to leave.
Under cross examination by counsel for Morgan, Frances Morgan said that when she saw her sister at 9.00 am on the morning of Friday 16 February 2001 her sister appeared very upset and had said that “some bad shit has gone down” and that a friend of hers was dead.
That evidence goes some way to establishing Morgan’s guilt, but in my opinion it does not say anything about the involvement of the applicant.
(vi) Steven Lazarevic
Lazarevic said that he met the deceased, about three months before her death, through a mutual acquaintance named Mohammed. Thereafter he had seen the deceased a few times until her death. On the night of 15 February 2001 he went to her flat with a friend, Tony Ambizzi, and they were there about 45 minutes when three other girls arrived. He said that they were introduced but that he could not recall their names. He said the girls went more or less straight into the bathroom to get ready to go out and he and his friend left about five minutes later.
Under cross examination by Morgan’s counsel, Lazarevic agreed that the girls arrived at the flat before midnight and that he was not left alone in the flat with one girl who was a stranger to him. He also said that the deceased told him that night at the flat that she had a big job on at the Crown Casino.
That evidence is something from which the jury could perhaps infer that the applicant was in the company of Jackson and Morgan on the night of the killing. But it goes no further than that.
(vii) Ronald Reginald Ball, spare parts driver
Ball said that he saw Morgan, Jackson and a third woman in the white Gemini out in the street at Lynch Road, Fawkner on the morning of Friday 16 February 2001. He said that he spoke to Morgan about the damage to his fiancee’s vehicle[6] and that she told him to get some quotes for the repair of the damage. He said that she appeared to be “scattered“. He also observed his fiancee conversing with her sister that day but as he was doing other things he heard only bits and pieces of their conversation.
[6]His fiancee was Morgan’s sister.
Under cross examination by counsel for Morgan, Ball agreed that Morgan appeared to be upset when she was speaking to his fiancee.
That evidence is something from which the jury might have inferred that the applicant was perhaps involved in the burial party. It says nothing directly, however, about the applicant’s involvement in the killing or the degree of her complicity.
(viii) Neil Davidson McGregor, maintenance fitter
McGregor gave evidence that he was married to Morgan’s mother and resided with her in Red Cliffs near Mildura. He said that in February 2001 Morgan arrived at his property in a taxi at about 6.00 pm. She was crying and unable to respond to his questions as to what was wrong with her. He recalled her telephoning the police in Melbourne and the police coming to the house to arrest her.
Under cross examination by counsel for Morgan, McGregor agreed that Morgan had been hysterical and said words to the effect that “something terrible had happened.”
That evidence does not inculpate the applicant.
(ix) Tony Tolevski, mechanic’s assistant
Tolevski said that during late 2000 and early 2001 he had lived in Edgar’s Road, Lalor and that the applicant came to stay with him there in March 2001. He said that she had appeared to be depressed and aggravated and told him she was worried about people who were after her, because she had not paid for some cocaine. He was later contacted by the informant and he told the applicant of what had happened. The applicant then packed a bag and left and he saw her being apprehended by police as she left the house.
That evidence does not inculpate the applicant.
(x) Olaf Heino Drummer, Forensic Pharmacologist and Toxicologist, Institute of Forensic Medicine
Mr Drummer stated that he had received from Dr Dodd a number of specimens taken from the deceased and conducted an analysis of them. He had detected the presence of alcohol, amphetamine, cocaine and tetrahydrocannabinol in the blood of the deceased. The amount of amphetamine which he found was consistent with the usage of “speed” (amphetamine) at sometime prior to her death and the amount of cocaine detected was significant and suggested that she had used cocaine in her recent past. Mr Drummer considered that the amount of cannabis was reasonably high and suggested that the deceased had consumed cannabis within several hours of her death.
That evidence does not inculpate the applicant.
(xi) Christopher John Paulet, Sergeant of Police, Crime Scene Unit, Victoria Forensic Science Centre
Sergeant Palmer gave evidence that he went to the area of Broadhurst Creek Reserve on the Kilmore – Wandong Road in Kilmore at 8.50p.m. on Sunday 18 February 2001. He said that he there observed the body of the deceased lying on her left side at the bottom of the bank adjacent to the creek. She was wearing jeans, black boots, socks, blue jumper with blood staining to the right shoulder and hair. The next day at 9.50 am he attended the Broadhurst Creek area again and a search was then conducted and a number of photographs were taken. That day he also examined a white Holden Gemini, took swabs from various parts of the car and took from the car a number of cigarette butts and a blue bag containing a quantity of bloodstained clothing. On Wednesday, 21 February 2001 he attended at the deceased’s flat in Frankston, where a series of photographs was taken, and took possession of a number of items including cigarette butts. As will be seen, that evidence suggests that the applicant was in the car possibly at or near to the time of the killing.
(xii) Gillian Dawn Gorissen, forensic officer, Fingerprint Branch
Officer Gorissen gave evidence that she had attended at the deceased’s flat in Frankston on 20 February 2001 and carried out an examination for latent fingerprints. She found a fingerprint on a bong which matched the right thumb print of Michelle Jackson; a thumb print on a drinking glass, matching the right thumb print of Morgan; and, also on a bong, middle and ring finger prints matching those of the applicant.
That evidence puts the applicant in the deceased’s flat, possibly on or near to the night of the killing, but not necessarily on the night.
(xiii) Stephen Kenneth Curnow, Senior Constable of Police, Victoria Forensic Science Centre, Fingerprint Unit
Senior Constable Curnow gave evidence that on 5 March 2001, he had collected a number of items from Sergeant Evans at the Victorian Forensic Science Centre, including a Nokia mobile phone, cigarette lighter and various portions of a broken Jacobs Creek wine bottle. He conducted an examination of those items for fingerprints. As a result of his examination, he located a left-thumb print on the inside surface of the broken wine bottle which matched the thumb print of Michelle Jackson.
Under cross examination by counsel for the applicant, Senior Constable Curnow said that he had examined for fingerprints all of the broken glass taken from the crime scene and that he was only able to find one identifiable print, which was the thumb print of Jackson on one of the broken pieces of the wine bottle.
That evidence appears positively to assist the applicant. It implies that Jackson was involved in the killing to a greater extent than she admitted and it suggests as a reasonable possibility that it was Jackson and not the applicant who struck the fatal blows.
(xiv) Philip Edward Swindells, Detective Senior Sergeant of Police, Homicide Squad
Detective Swindells gave evidence that on Sunday, 18 February 2001, he and other police had executed a warrant to search Units 2 and 3, 58 Lynch Road, Fawkner. During the search of Unit 3, they seized a woollen car seat cover and a pair of black pants, both from the laundry floor; a pair of stained tracksuit pants, found on the rear porch; one black shoe and a sports bag containing various items, both located in the garage; the contents of a wash basket, the contents of a rubbish bin, assorted letters, one black “Cherry Moon” top, one pair of “Guess” brand black jeans, one pair of “Ice” brand black pants and towels, all from the rear bedroom; one plastic rollerdex; and a soap dispenser from the bathroom. As will be seen, that evidence showed that it was likely that the applicant had been at the Fawkner unit, possibly in recent times.
(xv) Maxwell Kevin Jones, Forensic Biologist, Victoria Forensic Science Centre
Jones said that he conducted an examination of items found at the crime scene, items seized from the Fawkner apartment and from the deceased’s Frankston apartment, and swabs taken from the Holden Gemini, and compared them with blood samples taken from the deceased, Morgan, Jackson and the applicant. He found that the deceased’s DNA profile matched samples taken from the side of a backpack (Item No.4), a shoe found in the garage at the Fawkner unit (Item No. 5), a pair of “Hot” brand running shoes belonging to Morgan (Item No. 23), on stones marked as gravel marker 1 at the crime scene (Item No. 24), on a mobile telephone (Item 25) on a rock (Item No. 26), on plant and vegetable matter (Item No. 27), on a pair of Eastcoast blue denim trousers (Item No. 45A) and on another pair of blue denim trousers (Item No. 45B) together with blood on a hat (Item No. 45C) and on a coat (Item No. 45D). Jones found that the deceased was a contributor to a mixture of biological material found on a long-sleeved black shirt (Item No.45) that came from the blue carry bag and that Morgan was also a contributor to that material. He found the deceased’s biological material on two cigarette butts from a container labelled “rubbish in kitchen” (Item No. 46). In Jones’ view the probability that the source of the biological material was the deceased was 54 billion times more likely than that it belonged to another random member of the community.
I am now going to turn to acting in concert…[His Honour then directed the jury as to the concept of acting in concert in accordance with standard directions based upon the judgement of Smith J in R v Lowery and King[12], and continued]…
I turn now from acting in concert to aiding and abetting. The words aid and abet are used by the law to describe a broad concept or idea of criminal responsibility. If a secondary party is linked in purpose with the perpetrator and if the secondary party, by his or her conduct, does something before or at the time of the perpetrating of the crime to bring about the commission of the crime, that secondary party is as responsible as the perpetrator. A person may be responsible as a secondary party where that person aids or abets the perpetrator or perpetrators in the commission of the crime. Proof of either one or two, aid or abet, is sufficient. It is not necessary for a jury to be unanimous on the precise basis of liability provided you agree that the liability is established as either perpetrator or secondary party on a basis not involving materially different issues or consequences. Basically, the words aid and abet are used to describe the acts of a person who is, at the time the acts are perpetrated, present and is assisting and encouraging those acts to be perpetrated, the words used to describe different aspects of the essential concept of secondary participation in a crime. A person who is liable to be a secondary party must be shown to be linked in purpose with the perpetrator by his or her words or conduct, something to bring about or more likely to bring about the perpetration of the crime. [Emphasis added]. The word aid may be more appropriate to describe physical assistance in the committing of criminal acts or to the getting to or from the scene to commit them. Abet may be the word most appropriate to describe the urging on of the perpetrator at the time. One aids and abets if one intentionally helps the perpetrator or intentionally encourages the perpetrator by words or by presence and behaviour. Ask yourselves as to each of the accused – look at the evidence in a compartmentalised way – is she a perpetrator? If not, is she liable as a secondary party? I remind you that to be liable as a secondary party, she must be either acting in concert or aiding and abetting, linked in purpose with the perpetrator, and she must, by her conduct, have done something before or at the time of the perpetrating of the crime to aid or abet the commission of the crime.”
[12]R. v. Lowery and King (No.2) [1972] VR 560.
Later, after exceptions had been taken, his Honour gave to the jury the following further direction on complicity:
“Can I also come back to the matter that I briefly referred to in talking about acting in concert and aiding and abetting, that in that context I also referred to the general position as to a crime; it is clear that there must be the intention to be a party to the crime of murder and there must be the intention required for murder with aid and abet. It is not just an intention to commit a crime, it is specifically as to crime of murder.”
Mr Croucher’s first attack upon those directions concerns the passage:
“If you did not accept the evidence of Michelle Jackson, you could not say whether only one was a perpetrator or whether both were perpetrators of the acts which caused death. You would then have to consider whether as to each accused she was either a perpetrator or responsible as a secondary party who had either aided or abetted the perpetrator or was acting in concert with the perpetrator. “
He contends that it implies that if the jury did not accept the evidence of Michelle Jackson, they were nevertheless entitled to convict the applicant of murder, and he says that that would not be so. In his submission, Jackson’s evidence comprised almost all of the Crown’s case against the applicant and, hence, if it were rejected, there would not be a basis on which to convict the applicant of murder.
I reject that submission. It would be open to the jury to reject Jackson’s evidence as to the alleged oral admissions and to accept the remainder of her testimony; even if that is thought to be an unlikely result. It would be a matter for the jury. It would also be open to the jury to reject all of Jackson’s testimony and still to be satisfied on the basis of the applicant’s plea of guilty to manslaughter, and the conduct of her case and the evidence admissible against her, including Dr Dodd’s evidence, that she was guilty of murder. I have said already that I consider that if the jury had rejected Jackson’s testimony as uncorroborated, they might well not have been prepared to convict the applicant of murder. That does not mean that it would not have been open to them to do so.
Mr Croucher’s second attack on the passage mentioned is to say that the words “have to consider” wrongly implied that one of the two thereafter mentioned possibilities had to follow; that it failed to distinguish between the respective cases against the applicant and Morgan; and that it failed to convey to the jury how devastating to the Crown case would be their rejection of Jackson’s evidence.
I do not accept the first part of that complaint. I cannot imagine that the jury would have taken what the judge said as meaning anything other than that there were then two further possibilities for them to consider and that they would have to be satisfied beyond reasonable doubt of one or other of them before they could convict the applicant of murder.
I also reject the second point. As I have observed already, his Honour was at pains to stress the distinction between the two cases and the necessity to keep the two separate. Indeed I find it difficult to imagine how his Honour could have made it any clearer than with the part of his direction in which he told the jury:
“Ask yourselves as to each of the accused – look at the evidence in a compartmentalised way – is she a perpetrator? If not, is she liable as a secondary party? I remind you that to be liable as a secondary party, she must be either acting in concert or aiding and abetting, linked in purpose with the perpetrator, and she must, by her conduct, have done something before or at the time of the perpetrating of the crime to aid or abet the commission of the crime.”
It is unnecessary to say a great deal about the third point. The judge was not bound to direct the jury on the consequences of rejecting Jackson’s evidence, but the point is largely bound up with the question of corroboration to which I have already referred. I observe in passing, however, that counsel for the Crown put to the jury in final address and the judge repeated in the course of his Honour’s charge that apart from Jackson’s evidence, there was forensic evidence which “placed [the applicant] at Little River when the events occurred”. For the reasons already given, I do not think that to be correct, and in my view it should not have been said. To the contrary, as I see it there was no forensic evidence linking the applicant to the crime scene or the body of the deceased, and that was a point of real significance to be made in her favour.
Mr Croucher’s next argument centred on the words:
“A person who is liable to be a secondary party must be shown to be linked in purpose with the perpetrator by his or her words or conduct, something to bring about or more likely to bring about the perpetration of the crime”.
He contended that the juxtaposition of the words “purpose” and “more likely to bring about “ tended to suggest that something less that an intention to bring about the crime was sufficient; for, example, recklessness.
I think that argument to be baseless. Apart from the fact that the impugned passage of the charge is based upon the judgment of Cussen ACJ in R v Russell[13], and that Mason J gave that judgment his imprimatur in Giorgianni v R.[14] (a fact to which Mr Croucher indeed adverted to in the course of oral argument), I consider that the judge put the requisite intention beyond doubt by the following further passage of his direction:
“One aids and abets if one intentionally helps the perpetrator or intentionally encourages the perpetrator by words or by presence and behaviour. Ask yourselves as to each of the accused – look at the evidence in a compartmentalised way – is she a perpetrator? If not, is she liable as a secondary party? I remind you that to be liable as a secondary party, she must be either acting in concert or aiding and abetting, linked in purpose with the perpetrator, and she must, by her conduct, have done something before or at the time of the perpetrating of the crime to aid or abet the commission of the crime.”[15]
and the following further passage of the redirection:
“Can I also come back to the matter that I briefly referred to in talking about acting in concert and aiding and abetting, that in that context I also referred to the general position as to a crime; it is clear that there must be the intention to be a party to the crime of murder and there must be the intention required for murder with aid and abet. It is not just an intention to commit a crime, it is specifically as to crime of murder.”
[13][1933] VLR 59 at p.76.
[14](1985) 156 CLR 473 at p.493.
[15]cf R v Makin [2004] VSCA 85 [42].
Mr Croucher’s final arguments on the judge’s complicity directions were directed specifically to the section of the charge concerned with aiding and abetting. In short substance Mr Croucher argued that in order to convict the applicant as an aider and abetter there had to be evidence admissible against the applicant which established that the principal was guilty of murder; and that the judge failed to make sufficiently clear to the jury that, for that purpose, they were not entitled to consider evidence which was admissible against Morgan but not admissible against the applicant. In Mr Croucher’s submission the problem was exacerbated by the judge’s use of the word “perpetrator” (instead of “principal”) and by defining that term as one who is “normally responsible for a criminal act”, “the head person” or the one by whom “a weapon or weapons are used to cause death”. It was said that the “misuse” of the term “perpetrator” was apt to have the jury overlook the need for the intention to kill or inflict really serious physical injury. According to Mr Croucher, the jury would or might be led to reason that, provided Morgan or Jackson had used weapons to cause the deceased’s death, and regardless of Jackson’s or Morgan’s state of mind, the applicant would be guilty of murder as an aider and abetter if she had assisted or encouraged Morgan and Jackson to do what they did.
I consider that the first of those points is met by what I have said already about the care with which the judge instructed the jury that they were to “compartmentalise” each case and to consider the case against each accused only on the basis of the evidence which was admissible against the accused. A significant aspect of those instructions was the judge’s specific instruction to the jury as to the impermissibility of taking Morgan’s record on interview into account against the applicant:
“…The accused and the prosecution are entitled to have a separate consideration by you of the case against each accused on the charge of murder. So you must consider the evidence which is relevant to each separately. You must compartmentalise the evidence. You must ask: Does this evidence satisfy me beyond reasonable doubt of the guilt of this particular accused on this charge?
I spoke to you on the subject of compartmentalising the evidence during the trial and I will reinforce that matter at times during my directions. It is essential that you do not treat evidence which is admissible only against one of the accused as being evidence for or against the other accused. If the two accused had been tried separately, for example, you would not have had the record of interview of the accused Morgan led in a trial as evidence against the accused Tamme. It would have been ruled out as inadmissible in such a trial. “
I am also unable to see that there is anything in the point about the judge’s use of the word “perpetrator” as opposed to “principal”. The two words are readily interchangeable, in everyday spoken English[16] and as a matter of legal usage[17].
[16]One of the more common usages attributed to the word “principal” by the Oxford English Dictionary is “actual perpetrator of, or directly responsible for, a crime”.
[17]See, for example, Johns v The Queen (1980) 143 CLR 108 at p.116 per Stephen J; Giorgianni v The Queen (1985) 156 CLR473 at p.478,per Gibbs CJ; The Queen v Barlow (1997) 188 CLR 1 at p.39; Osland v The Queen (1998) 197 CLR 316 at 324 [14], per Gaudron and Gummow J; Festa v The Queen (2001) 208 CLR 593 at pp.611-613, [56], [57] and[62], per McHugh J; Pinkstone v The Queen [2004] HCA 23 at [63], per Gleeson CJ and Heydon J.
I am equally unable to see that there is anything in the suggestion that the judge misled or may have misled the jury by defining “perpetrator” as the person “normally responsible for “ a criminal act, “the head person” or the one by whom “a weapon or weapons are used to cause death”. Before giving directions about complicity the judge had directed the jury as to the elements of murder and, in the course of that explanation, his Honour had instructed the jury that :
“The prosecution must prove beyond reasonable doubt that the perpetrator or perpetrators committed acts that caused death, that those acts were conscious, voluntary and deliberate, that those acts were unlawful, that is, committed without any lawful excuse, and that those acts were committed with the intention either of killing the deceased or of doing really serious injury to the deceased. The prosecution must prove beyond reasonable doubt that the particular accused was criminally responsible as perpetrator or otherwise for the acts that caused the death. I will come back to the subject of criminal responsibility later.”
Consequently, in the context in which the judge later came to refer to “perpetrators” and others bearing criminal responsibility as aiders and abetters or as acting in concert, the jury could not have been in any doubt that the judge was referring to a “perpetrator” as a person who was criminally responsible for the murder of the deceased by reason of having wielded the weapon that killed her with the intent to kill her or inflict really serious physical injury upon her.
It follows in my opinion that Ground 4 of the appeal fails
Whether verdict of guilty of murder open on the evidence
I turn finally to Grounds 1 and 2 of the appeal and hence to the question of whether the verdict of guilty of murder was open on the evidence. In substance I have dealt with the point already in what I have said about the misdirection on corroboration and the argument that if the jury rejected Jackson’s evidence, it would not be open on the evidence to convict the applicant of murder.
My own view, as I have said, is that if one treats Jackson’s evidence as uncorroborated and excludes Morgan’s record of interview from consideration there is very little left to tie the applicant to the scene of the crime or to the body of the deceased. The point is well made by Mr McArdle, however, that the applicant pleaded guilty to manslaughter and that her defence was run in such a way as to invite the jury to find that she was involved in the killing and, hence, apparently, present at the crime scene. In those circumstances I do not accept that it would not have been open to the jury to convict the applicant of murder, even if they had been properly directed on corroboration and had excluded Jackson’s evidence and Morgan’s record of interview from consideration.[18] In the result, I consider that Grounds 1 and 2 both fail.
[18]cf. R v R (1989) 18 NSWLR 74; Doney v The Queen (1990) 171 CLR 207; MFA v The Queen (2002) 213 CLR 606 at p. 614-5 [25] – [26].
Conclusion
For the reasons given with respect to ground 7, I would allow the application for leave to appeal and allow the appeal against conviction. But I reject a further submission made by Mr. Croucher that this Court should direct an acquittal of murder and substitute a verdict of guilty of manslaughter. I would quash the conviction and direct a new trial to be had.
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