R v Williams
[2017] SASCFC 65
•9 June 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLIAMS
[2017] SASCFC 65
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Lovell)
9 June 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF
Application for extension of time in which to appeal and appeal against conviction for murder.
The applicant and a co-accused were convicted by jury of murder in December 2000. The deceased was bashed to death with a hammer and a camshaft. Both co-accused gave evidence and relied on self-defence. The jury convicted both of murder.
The evidence of Ms A, the only eyewitness to the incident, was central to the prosecution case. It was largely in opposition to the evidence given by the applicant and his co-accused, and it received support from the evidence of other witnesses to subsequent events.
The applicant seeks to adduce fresh evidence on appeal. It is claimed that ignorance of the subject matter of the fresh evidence deprived the applicant of the opportunity of a fair trial.
Ms A was diagnosed as suffering a Post-Traumatic Stress Disorder (“PTSD”) as a result of witnessing the events. This information was not available at trial. The appellant submits that given this disorder, the witness’s memory of the events was or may have been unreliable, and if cross examined on the disorder the jury may have taken a different approach to her reliability.
Held per Lovell J (Peek and Blue JJ agreeing) (refusing application for extension of time and dismissing the appeal):
1. The only evidence led from the expert witness regarding the development and effect of the PTSD was general evidence that a witness to a traumatic event may, but not necessarily will, develop a PTSD – and this may, but not necessarily will, affect that person’s memory of certain events (at [95]-[97], [115]-[122]).
2. The expert witnesses did not express an opinion whether Ms A would have developed a PTSD as a result of events according to the applicant's version of the facts (as opposed to Ms A’s version of events) or the possibility that any such PTSD would have affected her memory of the events in the manner required to be consistent with the applicant's version of the events (at [115]-[130] and [148]-[150]).
3. The evidence as to suggestibility arising from police questions asked of Ms A is so general as to lack utility on the application (at [163]).
4. There is no basis to receive Mr Mohi's statement, which was available to the defence at trial, as fresh evidence (at [168]-[169]).
5. In the context of the evidence at trial as a whole, the applicant has not established that there is a significant possibility that the fresh evidence would or may have led to a reasonable doubt being entertained by the jury and hence an acquittal (at [170]).
6. Application for extension of time in which to appeal refused and appeal dismissed (at [175]-[176]).
Gallagher v The Queen (1986) 160 CLR 392; Mickleberg v The Queen (1989) 167 CLR 259, referred to.
R v Bromley; R v Karpany (1986) 161 CLR 315, distinguished.
R v Hersbach [2001] SASC 192, discussed.
R v WILLIAMS
[2017] SASCFC 65Court of Criminal Appeal: Peek, Blue and Lovell JJ
PEEK J.
I would refuse the application for an extension of time and dismiss the appeal. I agree with the reasons of Lovell J.
BLUE J.
I agree with Lovell J.
LOVELL J.
On 23 February 1999 the applicant, Brett Williams, and his co-accused, Lawrence Hersbach were arrested and charged with the murder of Phillip John Paul McCormack. It was alleged that they had both bashed Mr McCormack to death with a hammer and camshaft in the early hours of the morning on 30 January 1999. On 27 June 1999 police located Mr McCormack’s body near Owen, South Australia with the assistance of Mr Stephen Gillen, who together with Mr Raymond Mohi was later charged with assisting an offender. Mr Gillen was subsequently granted immunity from prosecution and gave evidence in the Crown case. The applicant and Mr Hersbach gave evidence that they assaulted Mr McCormack but did so for a defensive purpose. Both said the fatal blow was delivered by Mr Mohi and without the agreement of either of them.
On 8 December 2000 the applicant and Mr Hersbach were found guilty by a jury of the murder. On 15 January 2001, both were sentenced to imprisonment for life. The applicant received a non-parole period of 18 years and Mr Hersbach a non-parole period of 16 years; both commenced from 8 December 2000. Mr Hersbach appealed against his conviction which appeal was dismissed on 14 June 2001.[1] On 15 July 2015 the applicant sought an extension of time and permission to appeal against his conviction. This application was made 14 and a half years after his conviction. The applicant alleged that he had obtained “fresh evidence” which if it had been available at his trial might reasonably have led the jury to return a different verdict.
[1] R v Hersbach [2001] SASC 192.
A single Judge refused permission to appeal on all grounds except grounds 1 to 3, granted permission to appeal on those three grounds and referred the question of extension of time within which to appeal to the Full Court.
Background
As mentioned Mr Hersbach appealed against his conviction. Debelle J (with whom Williams and Bleby JJ agreed) dismissed the appeal.[2] During the course of his judgment Debelle J summarised the evidence in the case. This Court is not bound by any conclusion as to the facts summarised in R v Hersbach and must reach its own view of the facts. However no party took issue with the summary of the evidence and I adopt it as it provides a useful overview. Debelle J stated:[3]
…The prosecution case was that McCormack was an aggressive person who had had a fight with [Mr Hersbach] over a debt and had, on the night of 28 January, fired shots at Hersbach’s house. The prosecution also noted that, on 29 January, the house occupied by [the applicant] had been broken into and a tape from a tape recording machine and some Serapax tablets stolen from it. It alleged that [the applicant] believed that McCormack was the person who had broken into the house.
On the nights of 29 and 30 January 1999, McCormack was with a woman called [Ms A]. The prosecution case was essentially based on the evidence of [Ms A] which was to the following effect. At about 1.30 on the morning of 30 January 1999 McCormack had consumed about seven tablets of the drug Serapax. As a result of this unusually large dose, McCormack had become comatose. He was placed in [Ms A’s] car. At about 2.30 that morning [Ms A] was driving around the southern suburbs seeking to find a place where she could leave McCormack. She eventually stopped in the driveway of [the applicant’s] house in Morphett Vale. McCormack was in the front seat in a semi‑conscious state. [Ms A] went inside [the applicant’s] house and told him McCormack was in her car, that he had taken a number of Serapax tablets, and that she was looking for somewhere to leave him. According to [Ms A], [the applicant] then told her that his house had been broken into the previous day and that all that had been taken were Serapax tablets and a tape from a tape recording machine. Having heard what [the applicant] had said, [Ms A] decided to take McCormack with her. She told [the applicant] of her intention. [The applicant] then told her to stay. [The applicant] then made a telephone call. Over a period of time [Ms A] constantly repeated that she wanted to leave and to take McCormack with her. [The applicant] refused to allow her to leave. A short time after the telephone call, [Mr Hersbach] arrived. He and [the applicant] then had a conversation. [Ms A] repeated that she wanted to leave and to take McCormack with her. They both refused to allow her to do so.
It was [Ms A’s] evidence that, at about this time, she noticed that her car had been moved further up the driveway of [the applicant’s] house. She had the keys of her car in her possession. It was the prosecution case the car had been pushed down the drive by a man named Mohi and [Mr Hersbach] so that it was behind high gates to the driveway. By this time it was daylight. [Ms A] said that she looked outside and saw [the applicant] and [Mr Hersbach] standing by the open front passenger door of the car. One was holding a hammer. The other was holding a metal bar about 60 centimetres long. There was evidence that it was part of a camshaft. I will refer to it as “the camshaft”. [Ms A] saw one of them striking a blow with the hammer aimed at McCormack’s head. She looked away. She heard a splattering sound. She looked back at her car and saw both accused swinging the hammer and the camshaft through the car door aimed at McCormack. She became hysterical, dry retched and moved away from the window. After a short time, she returned to the window and saw McCormack was on the ground between the car and the fence. Her car was between her and McCormack. She could only see McCormack’s legs extending beyond the rear of her car. She saw both [the applicant] and [Mr Hersbach] swing the hammer and the camshaft towards the region of McCormack’s chest and head. She said that these were powerful blows but she could not see whether the blows were striking McCormack. She did, however, see McCormack’s legs twitching and saw a lot of blood by his feet. She also heard sounds like moans. Another person then tried to pull [Ms A] away from the window. However, she was able to return to the window. She saw McCormack at the back of her car. She could not then recognise him. She saw [the applicant] hit a powerful blow to McCormack’s chest but his body did not react. Both [the applicant] and [Mr Hersbach] continued to hit McCormack. She saw that by this time a Ford motor car had reversed up to the boot of her car. She saw [Mr Hersbach] throw something over McCormack’s head and then saw [the applicant] and [Mr Hersbach] lift McCormack’s body into the boot of the Ford. She then moved away from the window. She heard the sound of water being sprayed outside in the driveway for a period of time. Both [the applicant] and [Mr Hersbach] returned inside the house. [The applicant] then threatened her and other persons present saying that he would kill them if they said anything to anyone. A short time after both [the applicant] and [Mr Hersbach] left.
[Ms A] said that she then went to her car which had again been shifted. She saw that it had been hosed on the outside and that it was wet inside. The map pocket in the front passenger door was full of water. The passenger seat and floor were wet. A woollen seat cover on the front passenger seat had a brown stain on it. She left the house. Later on 30 January 1999 she received a telephone call from [the applicant] who told her a story to tell others who might ask about the whereabouts of McCormack.
Another prosecution witness was Mr S J Gillen. At about 7.30 on the morning of 30 January 1999 he received a telephone call from [the applicant] asking him to go to Myponga to help him start [Mr Hersbach’s] car. Gillen agreed to do so. He ultimately found [the applicant] and [Mr Hersbach] somewhere between Myponga and Sellicks Beach. [The applicant] told him that the car had a flat battery. Gillen’s evidence was that [the applicant] had told him he had struck McCormack with a camshaft saying McCormack had broken into his house. Gillen said that he was too scared to ask where McCormack was. He helped them start the car and [the applicant] and [Mr Hersbach] drove away saying that they were going to [Mr Hersbach’s] house. As the car drove away, Gillen saw something dripping from the car. He put his finger to it and smelt it and thought it was blood.
Gillen then went to [Mr Hersbach’s] house arriving before [the applicant] and [Mr Hersbach]. He spoke to people there and decided to leave. However, his car would not start. [The applicant] and [Mr Hersbach] then arrived and [Mr Hersbach] agreed to drive Gillen to Gillen’s house. While being drive there Gillen asked [Mr Hersbach] what he was going to do with McCormack. [The applicant] said that they had McCormack in the boot. Gillen asked what had happened. Gillen’s evidence was that [the applicant] said that a fight had broken out and that he had broken a camshaft on McCormack. Gillen asked if there were witnesses. [The applicant] replied “That’s all right, they’re cool”. By this time the car had passed the turn to Gillen’s house. They drove north ultimately reaching Balaklava. They drove around the area and finally turned up a side track into some scrub. [The applicant] and [Mr Hersbach] buried McCormack. They then returned to Adelaide. On 20 May Gillen approached the police. McCormack’s body was ultimately found on 27 June 1999.
By the time the body was found little more than a skeleton remained. The post-mortem examination was conducted by Dr Byard. It disclosed that there were multiple fractures on the mid-facial skeleton involving the upper part of jaw bone, the palate, the cheekbone, and the nasal bones. There was extensive damage across the middle of the skull and the mid-facial skeleton was completely separated from the rest of the skull. In addition, there were fractures of the anterior cranial bones and multiple fractures on the back of the skull. According to Dr Byard the cause of death was haemorrhage from the facial injuries or brain trauma or a combination of both. Another possible cause was inhalation of blood while McCormack was unconscious. His evidence was that considerable force would have been required to inflict the facial injuries. It was not possible to say how many blows had caused the injuries. The injuries to both the face and skull were consistent with blows from a hammer or metal bar.
The case for the two accused was essentially the same. They both knew McCormack. [Mr Hersbach] had had an argument with him about a week before the events of 30 January over money due by McCormack to [Mr Hersbach]. The argument had ended in a fight. [Mr Hersbach] believed that McCormack had later fired shots at his house. [The applicant] said that his house had been broken into on 29 January. Although others had suggested McCormack was the culprit, he did not accept that. He also denied evidence given by others that tablets of Serapax had been taken from his house on that occasion. [Mr Hersbach] said that he had arrived at [the applicant’s] house at about 5.30 on the morning of 30 January. He said he was visiting [the applicant] because it was [the applicant’s] birthday. Both [Mr Hersbach] and [the applicant] denied that [the applicant] had telephoned [Mr Hersbach]. According to both accused, it was decided to remove McCormack from the car and to leave him on the porch of [the applicant’s] house. Their evidence was that the man called Mohi was also present. The evidence of both accused was to the effect that Mohi had woken McCormack who was still sleeping in the car. On being awoken, McCormack had threatened to kill the accused and then got out of the car. McCormack then produced a semi-automatic pistol. [Mr Hersbach] picked up a hammer. McCormack rushed at him. McCormack and [Mr Hersbach] struggled and wrestled with one another. [Mr Hersbach] hit McCormack “a couple of times” on the side of the head to defend himself. [The applicant] grabbed a wheel brace and struck McCormack across the shoulder. According to both accused, Mohi then hit McCormack in about the middle of the front of the skull with a metal bar knocking him to the ground. Mohi then struck McCormack a second time across the bridge of his nose. [The applicant] said that the weapon used was a camshaft. Mohi looked at McCormack and informed the others that he was dead. [The applicant] and [Mr Hersbach] then disposed of the body. According to [Mr Hersbach], Mohi hosed down the area. There are obvious discrepancies between this evidence and the evidence of [Ms A].
[2] R v Hersbach [2001] SASC 192.
[3] R v Hersbach [2001] SASC 192 [3]-[10]. The respondent agrees with summary of the issues in the trial, the significance of the evidence of Ms A and the approach the jury must have taken to that evidence.
Grounds of Appeal
The applicant appeals pursuant to permission on the following “fresh evidence” grounds of appeal:
1Fresh evidence has been discovered which gives rise to the defence, in the interest of ensuring a fair trial, having been deprived of all it was entitled to know for the purpose of presenting a proper and complete defence.
2Fresh evidence has been discovered which gives rise to the Trial Judge having been deprived of all he was entitled to know for the purpose of ensuring a fair trial.
3Fresh evidence has been discovered, which gives rise to the jury having been deprived of all it was entitled to know for the purpose of arriving at a just verdict.
All grounds of appeal relate to the evidence given by Ms A. Ms A was the principal prosecution witness and the only other person, besides the applicant and Mr Hersbach, to give an eye-witness account of the incident. The gravamen of the applicant’s complaint is that the memory of Ms A is unreliable given that she was subsequently diagnosed with post-traumatic stress disorder as a result of witnessing the killing of the deceased. The applicant challenges, in particular, Ms A’s evidence as to the events of, and immediately proximate to, the killing of the deceased. The applicant submits that had certain material been known to him at the time of the trial, Ms A could have been cross-examined about it by his counsel and the jury may have taken a different approach to the reliability of the evidence given by Ms A.
The Trial
In November 2000, the applicant and Mr Hersbach were tried in the Supreme Court before a jury. Both were convicted of murder. The only eyewitness to the murder was Ms A. The prosecution relied on her evidence to prove the charge of murder. The evidence of Ms A as to the position of Mr McCormack in the vehicle, at the time when the incident leading to his death occurred, was vital. Her evidence was in substantial conflict with that of the applicant and Mr Hersbach. It was accepted both at trial and on appeal that unless the jury was satisfied of Ms A’s evidence beyond a reasonable doubt it could not convict either the applicant or Mr Hersbach of murder.
At trial the jury was given a warning about the acceptance (or not) of Ms A’s evidence. The jury was told by the trial judge that it should use “special caution” and “carefully scrutinise” her evidence.
During the course of the police investigation into the events surrounding the incident, Ms A was interviewed on five occasions; twice on 5 February 1999 and again on 9, 13 and 17 February 1999. The first three of these interviews were recorded on video. Between the first and second recorded interviews, the police officers met with Ms A in a park and spoke to her. No notes were made of that conversation. During the first three interviews Ms A denied any knowledge of the death of the deceased. The last two police interviews were lengthy and neither was recorded. Ms A admitted knowledge of the death of the deceased and during the course of these two interviews implicated the applicant and Mr Hersbach. The last two interviews led to her signed declaration of 17 February 1999. On that date Ms A was given an immunity from prosecution by the Director of Public Prosecutions.
Ms A’s Evidence
It is important to the resolution of this appeal that I set out, in some detail, Ms A’s evidence.
At the time of trial Ms A was aged 20 years and worked as a hairdresser. Prior to the murder she had known the applicant for approximately one to two years. On 29 January 1999 a friend named Watts requested that she do him a favour and “pick up” Phil McCormack. Ms A picked Mr McCormack up from Morphett Vale. Ms A gave extensive evidence of her movements after she picked up Mr McCormack. This included seeing Mr McCormack with a gun and him firing this weapon in the direction of another man. It is also likely that Mr McCormack was organising drug related activities. Ms A said that she occasionally took “speed” and she took some on this day. Other than keeping her awake she did not think it had much effect on her this day. Ms A said she did not think it affected her memory. She did not have any amphetamine at the applicant’s house.
At some stage Ms A and Mr McCormack went to “Gavin’s place”. Mr McCormack was in Gavin’s house for approximately 20 minutes and Ms A remained in the car. After about 20 minutes they both came towards her car and they were having an argument. Gavin was saying that he would not let Mr McCormack drive a car. It was at that stage that Gavin told Ms A that Mr McCormack had been taking Serepax and was in “no condition to drive”. Mr McCormack looked “drunk” and was “sort of swaying, blurting his words out”. Over the course of the evening his condition became worse. While a passenger in Ms A’s car he slumped forward and over the gearstick while Ms A was driving. She was worried about him and contacted friends seeking help but received little assistance other than from a friend called Amy. Eventually Ms A, and Amy, drove to the applicant’s house and parked her car in the driveway behind another vehicle. The applicant and Amy went inside the house and left Mr McCormack in Ms A’s car. There were a number of other visitors to the house including Mr Gillen.
Ms A told the applicant that Mr McCormack was in her car and that he had taken Serepax. The applicant responded by telling her that his Serepax had been stolen when someone had broken into his house. A tape from his tape recorder had also been stolen.
A short time later Amy left the house. Ms A had to move her car as Amy left in the car she had parked behind. After she had moved her car Ms A returned her car to the driveway. Mr McCormack was still in the same condition at that stage. Ms A returned inside.
The applicant was angry about his missing Serepax and accused Mr McCormack of taking it. Ms A said she wanted to leave at that stage but the applicant would not let her. The applicant made a phone call and a short time later Lawrie (Mr Hersbach) arrived at the premises. Ms A said that she had not met Mr Hersbach before that night.
Ms A requested on a number of occasions that she take Mr McCormack away but the applicant refused to allow her to do so. Another male and female arrived at the premises (from other evidence the male was almost certainly Mr Mohi). The male person spoke to the applicant and suggested that Mr McCormack be put into his car so Ms A could leave. The applicant refused to allow that to happen.
A short time later Ms A was in the lounge room of the house. She heard a car door slam and she moved to the dining room and looked out of the window. She noticed that at that stage her car had been moved. It was now behind the driveway gates.
Ms A saw the applicant and Mr Hersbach standing on the passenger side of her car; at that time she did not see anybody else. Ms A saw one of them taking a “swing” at Mr McCormack through the open door with something that looked like a “metal pole”. At that time she said she was able to see the top of Mr McCormack’s head. She thought the blow connected. Ms A was unable to say whether it was the applicant or Mr Hersbach who swung the pole. She said they then both swung at Mr McCormack with the other person using something that looked “like some sort of hammer”. Ms A was not sure how many blows were struck but it seemed “like a lot”. She said she could see Mr McCormack moving so the blows must have “connected”. She said the incident seemed to last “hours” but it was probably only minutes.
Ms A moved away from the window for less than a minute before returning. By this time Mr McCormack was out of the car, lying on the ground near the passenger side of her car. The applicant and Mr Hersbach (she was not sure if it was one or both) continued to hit Mr McCormack. They were swinging in the direction of his upper body and she could not see whether the blows connected. However she could see his legs moving. His legs were “jolting”. This probably only lasted minutes.
Others at the house tried to “pull her” away from the window and she left for a minute. When she returned to the window Mr McCormack was now at the end of the boot of her car. Another car had been reversed up the driveway and Mr McCormack was in between the two cars. Mr McCormack was not moving and he was covered in blood. She was hardly able to see his face. Both the applicant and Mr Hersbach were alongside Mr McCormack at that stage. They were still swinging at him and Mr McCormack was not reacting. She described the blows as “very powerful, very hard swings”. Ms A was not able to say exactly where the blows landed but she thought they were on the upper body of Mr McCormack.
The boots of both cars were facing each other. She saw either the applicant or Mr Hersbach throw something like a “rag or a tea towel” over Mr McCormack’s face. She saw no one else other than those two at the scene. She saw them put Mr McCormack into the boot of the other car. At that stage she was still standing by the window.
Ms A said she had no difficulty in seeing what was happening from the window. It was around 6.30 in the morning and the sun was coming up. There was also a light on. Ms A said she was at this stage “hysterical” and moved away from the window. A few minutes later she heard the noise of a hose being used. She looked outside and could see her car “getting sprayed down”. She was unable to say who was spraying down her car. Ms A said she thought she could hear the water for “five minutes” and then the applicant and Mr Hersbach came inside. From the first time she looked out the window until after the applicant came back inside she thought was approximately “10, 15 minutes, it may have been longer. It’s hard to say now”.
When the applicant came inside he seemed to be very happy. As he came inside he said “what a beautiful day it was, and that he could smell the fresh air.” After he said that he turned to those present and said that we had “better keep our mouths shut, that we are now all an accessory to murder”. She could remember him saying something like “if we don’t, he’ll kill us”. The applicant looked at Ms A and repeated that statement. She was very scared. It was around this time that the other man left – that is the third man, who had arrived with the female. Just before the applicant and Mr Hersbach left, the applicant told her what she should say if anyone asked her what happened to Mr McCormack. He told her that if anyone asked what happened she was to say that “Phil and I had an argument and I dropped him off near Rose’s house”.
After they left Ms A was still hysterical and did not know what to do. She did not want to go to her car but she had to. She remained in the house after the applicant left for about five minutes. She went out to her car which had now been moved further back. It was now before the gates instead of behind the gates. As she approached her car she noticed it was very wet. It was wet inside and out. Inside the car the seats were wet. There was water on the floor, on the mats, on the side of the door and the map pockets “were full of water”. Ms A said the passenger side map pocket was full of water but the driver side only had a little bit of water in it. Ms A went to leave but could not. She “freaked out” and went back inside. She asked for a towel so she could drive home. She was given a towel and tried to clean up the water that was “all through my car”. The seat cover on the passenger side seat of the car had a dark stain on it which she thought looked like a bloodstain. Ms A then went home. She arrived home around 7 AM and commenced work at 9 AM.
Ms A finished work about 5 PM and after she returned home she received a phone call on her mobile phone. It was the applicant. The applicant again told her what to say if she was asked questions about what had happened to Phil.
On 31 January 1999 Ms A had an accident in her car and the car was towed to a crash repairer’s premises. She took the seat covers from the car. Eventually she gave the seat covers to the police.
On the Thursday of that week the applicant came to Ms A’s place and asked her about her car. He said that he had heard that her car “had been impounded”. She told him that she had been in an accident and it was at the crash repairers but he did not believe her. Again he told her just to stick to her story.
Ms A was cross examined by counsel for both the applicant and Mr Hersbach. There were some inconsistencies in her evidence but in relation to where Mr McCormack was when she first saw any assault she was adamant that he was seated in the car.
Ms A denied saying to Ms Burns, who was called by the defence at trial, that the applicant did not do it.
Mr Gillen’s Evidence
Mr Gillen described himself as a friend of the applicant and Mr Hersbach. He knew Mr McCormack but was not friends with him.
It was common ground that Mr Gillen assisted the applicant to bury Mr McCormack. He was charged with the offence of “assisting an offender”. His solicitor negotiated an immunity from prosecution on the condition that he give a statement to the police and also that he give evidence.
Shortly prior to 29 January Mr Gillen had been to the applicant’s house. The applicant said that someone had broken into his house. He showed Mr Gillen the damage to the door. The applicant told him that a video tape had been stolen and his Serepax tablets. Mr Gillen suggested Mr McCormack may have done it. The applicant was adamant that it was a man named Scott Grindley who had broken into the house.
Mr Gillen was present at the house on the evening that Ms A arrived with Mr McCormack. He left before the alleged murder took place.
Further it was common ground that the applicant rang Mr Gillen after the death of Mr McCormack looking for assistance. The applicant was near Myponga in Mr Hersbach’s car and it had broken down. Mr Gillen agreed to assist.
Mr Gillen drove his car looking for them and found them in a parking bay near Sellicks Hill. As he was getting out of his car the applicant said “you would have loved it. I have snapped the camshaft on him” He said he had a hole in his head. The applicant did not identify who he was talking about.
Mr Gillen, using jumper leads, got the car started. Mr Hersbach was driving and the car headed towards Moana. Mr Gillen noticed a pool of liquid where the car had been. It was about the size of a dinner plate. He put his finger into it as he thought it might have been transmission fluid. Mr Gillen said it smelt like blood.
Mr Gillen travelled to Mr Hersbach’s house but arrived before the applicant and Mr Hersbach. He went to leave but now his car would not start. Eventually Mr Hersbach and the applicant arrived and Mr Gillen asked for a lift home. Mr Hersbach agreed.
When he was in the car the applicant said that they had a problem as “Phil’s still in the boot”.
Mr Gillen asked what had happened. The applicant told him that Mr McCormack had broken into his house and that he was confronting Mr McCormack about it in Ms A’s car when a fight broke out. He said he “snapped a camshaft on him”. Mr Gillen asked if there were any witnesses to the incident. The applicant replied yes “but they are cool”.
Mr Gillen then assisted the applicant and Mr Hersbach to dispose of Mr McCormack’s body. Mr McCormack was buried north of Adelaide near Balaklava. The applicant gave Mr Gillen a different version of events when they were burying Mr McCormack. He said that Mr McCormack had turned up at his house with guns. When the applicant approached Mr McCormack he got aggressive and a fight broke out.
Later again the applicant told Mr Gillen a version of events generally consistent with his evidence.
Doctor Byard
Doctor Byard is a forensic pathologist. His qualifications and relevant experience were not challenged.
On 27 June 1999 Dr Byard attended the site where Mr McCormack’s body had been discovered. The body had decomposed. There was not much skin left on the body and most of the soft tissues and internal organs had “rotted away”.In those circumstances it was impossible to give an estimate as to the time of death. His opinion as to the cause of death was blunt trauma to the face and head.
Doctor Byard performed a post mortem examination. He said that below the orbits of the eyes the skull had been “shattered”. There were fractures of the lower part of the nasal bones as well as the upper part of the upper jaw. The front part of the cheekbone had been broken and the bone inside the palate had been shattered. There was extensive damage in the relatively narrow band across the middle of the skull. A small aspect of the mandible was missing and this was likely to have been caused by trauma although it was an unusual injury. To damage that area would have required considerable force.
Doctor Byard thought that the injuries to the head had been caused by at least one blow and probably more. He thought the injuries were caused by an object such as a metal bar. It would have to have been caused by a long object or alternatively a weapon such as a hammer with more than one blow. He also said that the injuries may have been caused by a combination of blows by a metal bar and a hammer. The force of the blow or blows must have been substantial. The lack of skin and soft tissue due to decomposition made it difficult to estimate the number of blows.
Doctor Byard stated that the injuries were consistent with having been caused whilst the person was sitting in the front seat of a motor vehicle as well as whilst the person was lying on his back on the ground.
There were two other areas of damage to the back of the skull. They were described as “grooved areas”. Doctor Byard thought they were consistent with having been caused by a glancing blow with a metal object perhaps with a roughened surface. He thought the damage was consistent with two blows. Reasonable force would have been required to cause those grooved marks.
Doctor Byard said there were no discernible injuries to the chest. He agreed that ribs can be easily fractured but he saw no evidence of any rib fractures. Doctor Byard would have expected there to be injuries to the rib area if the deceased had been struck by a metal object with the same force that caused the facial injuries.
If the facial injuries had been inflicted by multiple blows he would have expected there to be a lot of blood. If blows had been struck to the stomach area he would not have expected skeletal injuries.
Applicant’s Evidence
The applicant’s evidence contradicted that of Ms A’s in a number of respects. He said that he was not angry with Mr McCormack about the break in. He denied having any Serepax. He denied being angry with Mr McCormack at all. He denied telling Ms A that she could not leave the house. The applicant said that he wanted to get Mr McCormack out of the car and onto his back porch to “sleep” it off. The applicant said he wanted some assistance to move Mr McCormack as he was “pilled out”. He agreed that they moved Ms A’s car and said that this was to make it easier to shift Mr McCormack to the back porch.
The applicant gave evidence about the incident that has been accurately summarised by Debelle J as referred to earlier. The applicant stated that Mr Mohi tried to rouse Mr McCormack from his stupor. Eventually Mr McCormack awoke but he was immediately aggressive and threatened Mr Hersbach. He pulled out a gun and rushed towards Mr Hersbach. They struggled with each other, out of the car and towards the rear. Mr Hersbach swung a couple of punches. The applicant grabbed a wheel brace and struck Mr McCormack a couple of times in the neck and shoulder area.
It was at that stage that Mr Mohi struck Mr McCormack with the “camshaft” and when Mr McCormack fell to the ground Mr Mohi struck him to the “bridge of the nose” area with the camshaft. That was the last blow struck. The applicant stated that the whole incident lasted “seconds”- “it was all so quick”. Mr Mohi was next to Mr McCormack and said he was dead. In essence it was the applicant’s case that the incident occurred outside the car and that Mr Mohi struck the fatal blows.
The applicant said that he went into the house and got a blanket to put over Mr McCormack. He saw Ms A and another female out on the front porch; he told them Mr McCormack was dead. He said they did not looked shocked or anything. He did not know if they knew what had happened.[4]
[4] At first the applicant said he saw them in the lounge. Later he said it was the front porch.
The applicant denied saying they were accessories to murder. He denied threatening to kill Ms A. He denied telling Ms A what to say; he said that Ms A came up with that story. While he admitted contact with Ms A in the following days he denied telling her to stick to her story. The applicant accepted that someone sprayed the area with water.
The applicant denied making any admissions to Mr Gillen.
Evidence of Ms Burns
The applicant called Ms Burns. Ms Burns said that she had heard rumours about Mr McCormack and what might have happened to him. She was with Ms A one day and they were talking about it. Ms Burns said how she “couldn’t believe that Brett (the applicant) would do something like that.” Ms Burns said that Ms A looked at the ground and mumbled something like “he didn’t”. Ms Burns queried her and Ms A said she did not want to “talk about it any more”. She then closed “up like a clam” so Ms Burns changed the topic. Ms Burns denied she could be mistaken about the conversation.
Evidence of Mr Hersbach
Mr Hersbach knew Mr McCormack. About a week before the incident he had an altercation with Mr McCormack over money he said was owed by Mr McCormack. They came to blows and the fight ended with Mr McCormack threatening to shoot Mr Hersbach. He felt scared after that. A few days later shots were fired at his home although he was not present.
Mr Hersbach gave evidence in line with the applicant’s evidence. In particular he stated that Mr McCormack was woken up by Mr Mohi. As soon as he saw Mr Hersbach he threatened him, got out of the car and pulled out a gun. There was a struggle during which Mr Hersbach hit Mr McCormack with a hammer in self-defence. The applicant hit Mr McCormack in the shoulder. Mr Mohi eventually struck Mr McCormack in the face with a “bar”. Mr McCormack fell to the ground and Mr Mohi struck him again in the face. Once that blow was struck there were no other blows struck. He said the whole incident took “30 seconds; well under a minute”. Mr Mohi said to him that he “had saved [Mr Hersbach’s] arse”. He and Mr Mohi put the body in the boot; the applicant had nothing to do with that.
Mr Hersbach said there was “much blood”. There were two patches, one where he fell and one towards the rear of Ms A’s car.
After Mr Hersbach went inside he saw a number of people in the lounge room including Ms A. He said their behaviour did not seem unusual and that he thought they had not seen what had gone on.
Later when Mr Gillen turned up at Sellicks Hill to help with the car Mr Hersbach told Mr Gillen that Mr McCormack was “in the boot” and that they did not know what to do with him. Mr Hersbach said that it was Mr Gillen who asked if they had “shovels”. He heard no conversation between Mr Gillen and the applicant about the use of the camshaft.
Discussion
It can be seen from the above summary that there are irreconcilable differences between the evidence of Ms A and that of the applicant and Mr Hersbach. The important differences are the location of the initial assault, the number of blows struck, who struck the blows, the number of people involved in the assault and the length of time the incident took. Further, as between Ms A and the applicant, there were other important differences, namely whether the applicant forced her to wait at his premises for others to arrive, whether there was any threat made by the applicant toward Ms A, whether the inside of her car was “hosed” out and whether the applicant told her what to say to the police if, and indeed when, she was interviewed.
Both the applicant and Mr Hersbach both said that Ms A’s behaviour after the event was unremarkable. Both said that they thought she may not have witnessed anything. In contrast Ms A said that she was “dry retching” and “freaking out”.
Ms A’s evidence received support from the evidence of Mr Gillen.
The evidence of Dr Byard could largely be said to be consistent with either version of events. Given the state of decomposition of the body, soft tissue injuries (if any) were not able to be observed. The relevance of whether there were any rib fractures depended on precisely where the blows, on Ms A’s evidence, were struck. She said she was unable to see the top half of Mr McCormack’s body at the time those blows were struck.
Other evidence at the trial, such as whether the police, in the unrecorded interviews, put pressure on Ms A does not bear on this matter. The police denied any wrongdoing during the unrecorded interviews. The applicant relies on the questions, discussed later in these reasons, asked by police and recorded, in relation to the question of “suggestibility”.
The Law on Fresh Evidence
An appeal court can receive evidence (fresh evidence) not led at trial in order to assess whether the failure of the trial court to receive that evidence resulted in a miscarriage of justice. In assessing whether a miscarriage of justice has occurred, an appeal court is to have regard to three main considerations as stated by the High Court in Gallagher v The Queen:[5]
The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial…Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict.
[5] (1986) 160 CLR 392, 395-396.
Therefore there are three main considerations to consider when deciding whether a miscarriage of justice has occurred because evidence is now available that was not given at trial:
1Whether the evidence now relied upon could have been produced at trial with reasonable diligence.
2Whether the evidence is apparently credible or at least capable of belief.
3Whether if believed, the evidence might reasonably have led the jury to return a different verdict.
The test to be applied by this Court in determining the ground of appeal was stated by Gibbs J in Gallagher’s case. Gibbs CJ said:
It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury. It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgement prepared by Mason and Deane JJ who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasise that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.[6]
[6] Ibid 399 (Gibbs CJ).
The test in Gallagher was approved by the High Court in Mickelberg v The Queen. Mason CJ stated:[7]
It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen (1986) 160 CLR 392 Deane J and I considered that the test was best expressed in those terms. Gibbs CJ expressed his substantial agreement with the statement, although his Honour emphasized that “no form of words should be regarded as an incantation that will resolve the difficulties of every case”. Dawson J said that the court would need to conclude that “a jury might entertain a reasonable doubt about the guilt of the appellant”. His Honour went on to say that in his view the use of the expression “significant possibility” did not involve a different standard. I am in agreement with those statements. We were not asked to reconsider the correctness of the decision in Gallagher.
(My italics) (Footnotes omitted)
[7] Mickelberg v The Queen (1989) 167 CLR 259, 273.
There is no dispute about these legal principles.
The respondent accepts that the new evidence could not, with reasonable diligence, have been produced at trial. Further the respondent accepts the evidence as apparently credible or at least capable of belief. The issue on appeal is whether the applicant can satisfy the test that the evidence might reasonably have led the jury to return a different verdict.
The Evidence said to be “Fresh Evidence”
The fresh evidence relied upon by the applicant consists of particular documents tendered in court and oral evidence given by two medical professionals, namely:
1Summons and statement of claim of Ms A, dated 19 June 2001;
2Psychiatric report by Dr Blakemore,[8] dated 8 August 2001;
3Judgment of his Honour Judge Lowrie in the District Court, dated 1 March 2002;
4Provider receipt of Dr Kinnane, dated 13 March 2001;
5Psychiatric report by Dr Begg, dated 20 May 2015;
6Curriculum Vitae of Dr Begg, undated;
7Psychiatric report by Dr Begg, dated 29 March 2016;
8Evidence of Dr Begg given before Vanstone J on 15 April 2016; and
9Evidence of Dr Kinnane given before Vanstone J on 27 April 2016.
[8] Dr Blakemore did not give evidence.
On appeal, during submissions counsel for the applicant also sought to have the material that was mentioned in the reports of Dr Begg before the Court. This information was received by the Court on 30 November 2016 and included:
1Letter by Brett Stuart Williams, dated 24 November 2014;[9]
2Documents in an appendix generated by the applicant entitled:
· Introduction
· Summary of the Conviction History
· The fresh evidence is highly probative
· General Summary
3Letter by Brett Stuart Williams, dated 15 March 2016;
4Psychiatric report by Dr Raeside, dated 3 February 2015;
5Dr Begg Examination: Sample questions.
[9] According to the applicant this letter was sent by him on 8 May 2015 as he refers to Dr Raeside’s Report dated 3 February 2015 so must at least have been sent after this date.
All this material came into existence after the applicant’s conviction on 8 December 2000 and there was no objection by the respondent to the Court receiving this material.
Background to the Fresh Evidence
It is common ground that Ms A filed a claim in the District Court seeking damages pursuant to the Criminal Injuries Compensation Act 1978 (SA) (the Act), for mental injury suffered as a result of witnessing the murder. In the statement of claim filed and dated 19 June 2001, Ms A alleged that she suffered a Post -Traumatic Stress Disorder (PTSD) as a result of witnessing the murder of Mr McCormack. Ms A claimed that she had suffered a mental injury within the definition of the Act. Ms A claimed an entitlement to an award of damages to be assessed pursuant to the Act. She alleged she suffered fear, nightmares, loss of sleep, flashbacks, depression and anxiety. The applicant filed a defence.
The trial was heard by Lowrie DCJ on 30 January 2002. Ms A gave evidence generally consistent with what she said at the murder trial in addition to evidence of her symptoms. Doctor Blakemore, a consultant psychiatrist, gave evidence. Doctor Blakemore consulted with Ms A on 7 August 2000 for the purpose of providing a medical report on her condition. He did not treat Ms A.
In his evidence (including the tendering of a report) Dr Blakemore stated that he obtained a history of the murder in addition to the symptoms suffered by Ms A since that time. The history obtained was generally consistent with the evidence she gave at the murder trial. He opined that Ms A suffered from a PTSD as a result of witnessing the murder of Mr McCormack. He noted that she had seen a psychiatrist some months before but had not found the sessions of much assistance. As it transpired Ms A had consulted with Dr Kinnane (a consultant psychiatrist) on 10 February 2000, 10 March 2000 and 9 May 2000. Doctor Kinnane did not give evidence before Lowrie DCJ. Doctor Blakemore considered that her condition may improve over time.
On 1 March 2002 Lowrie DCJ handed down judgment in favour of Ms A and assessed damages at $11,750.
The applicant delayed in contacting a psychiatrist about the possible relevance of a witness suffering a PTSD and the effect it may have on their reliability. I deal with the delay later in these reasons. Eventually, in 2014, the applicant contacted Dr Raeside – a consultant psychiatrist. Doctor Raeside was supplied with a number of materials including a document headed “Fresh Evidence Application of Brett Stuart Williams”. Doctor Raeside provided a report to the applicant dated 3 February 2015. Doctor Raeside, shortly after provision of that report, went overseas. The same documents provided to Dr Raeside were then sent to Dr Begg, also a consultant psychiatrist. Doctor Begg provided two reports, one of 20 May 2015 and the other 29 March 2016. Doctor Begg also received the report of Dr Raeside.
On the hearing of the permission to appeal application Dr Begg gave evidence as well as Ms A’s original treating psychiatrist Dr Kinnane.
Medical Evidence
Doctor Begg
Doctor Begg’s qualifications and experience were not challenged. Doctor Begg assumed the diagnosis of PTSD as he had not consulted with Ms A. His evidence was very general.
Doctor Begg stated that not everyone who witnesses a traumatic event goes on to suffer a psychiatric disorder. People exposed to the same trauma can react differently. The length of time a person is exposed to the trauma is correlated with the likelihood of developing the disorder. Doctor Begg stated that the diagnosis in psychiatry is a descriptive system. He said that it is different to other areas of medicine and that it is important when considering the diagnosis to look at what the symptoms are and the effect of those symptoms.
Doctor Begg gave evidence about how memory is laid down and then recalled. He described a two-stage memory process.
First, when people experience an event, different sensory inputs occur. It is common for people to describe aspects of what they remember but not the complete event. This is in some respects unremarkable as people tend to focus only on a limited range of experiences. For example, if a person is confronted by a criminal with a gun they may be able to describe the gun but not the face of the criminal. Depending on the circumstances and the focus of that person they may be able to give a very detailed description of the person but not who else may have been in the vicinity.
People experience an event in a particular emotional state. On some occasions stress can be beneficial, but where that person is overwhelmed by what is occurring their sensory perception may begin to break down. The strong emotion attached to the experience can influence the information being absorbed. For example a person may describe not hearing sounds during an event or may describe only particular aspects of an event. If they “don’t get the basic information in … it’s impossible then to create a proper memory of the event”.
Often the person will take in the information very clearly and retain a very vivid memory. This is sometimes known as a “flashbulb memory”.
Secondly, the memory needs to be placed into longer term storage in order that it may be later retrieved. When a memory is retrieved it comes back into conscious awareness and the event is remembered often with associated emotion. With a “flashbulb memory” the person may have a very accurate recall and the memory may stay very accurate for a number of years. Other memories, in the process of recall, can be shifted, changed and adapted by the emotional state of the person at the time the memory is recalled. A common condition seen in a PTSD is where a person keeps getting the memory back, or an aspect of the memory, of the trauma. A person who has been traumatised is in a highly suggestible state and as the memory is recalled it can be distorted by the meaning of that memory and the emotional state present when the person recalls memory. If there is some disruption to memory encoding, the mind may reorganise details, embellish them or weave in details to complete what the person thinks must have happened. There can be a tendency for the mind to unconsciously assemble the fragments, and even add false details, to complete the logical sense of the narrative.
Memory distortion can occur and the person may believe they are accurately recalling the matter. If a person suffers a PTSD this feature is more prominent and there can be a fragmentation of memory – that is a person does not remember all aspects of the event. If the person is in a disturbed emotional state and unsure of what has happened, they may look to others to tell them in order to make sense of what happened.
If there is uncertainty in a person’s memory about an event that has just occurred, particularly if they are feeling frightened and distressed, they are more likely to pay attention to, and agree with, someone who presents themselves as a person in authority. A person may be more ready to agree to an idea that is directly or implicitly put to them. This person may be unaware that they have been influenced. Distortions can happen, particularly if false ideas are given to the person at the time.
It is important to look at the immediate recollection of a person at the time of the event in order to understand whether they have been influenced by what others have said to them about the event. Doctor Begg was asked some specific questions on the topic of the suggestibility of a witness suffering PTSD. I deal with that later in these reasons.
Thus a PTSD increases the potential for a memory disturbance but the result can vary from complete amnesia to a detailed intense memory that causes an intrusive constant reliving of the experience. If the early memory is inaccurate, repetitive remembering of the inaccurate memory can create in the person a sense of accuracy.
In cross-examination Dr Begg agreed that as he had never spoken to Ms A he was unable to provide any opinion as to whether she may or may not have been suffering from a PTSD since the incident. He was unable to comment on whether her recall was accurate. He agreed that the opinion provided was “a very general opinion in hypothetical terms about what a person suffering from PTSD might present like”.
Doctor Begg agreed that one of the most common problems for patients suffering from PTSD is a failure to forget the events of the trauma experienced. In that failure to forget, the memories they have are accurate memories of what they saw. He restated that it was possible that the memories might be incomplete, distorted with a retelling or distorted by suggestions early after the traumatic event. He said there was no way of telling whether any of those eventualities was, in fact, the case.
It can be readily seen that Dr Begg gave evidence about how a PTSD may arise and its potential consequences on memory and recall only in the most general of terms. There was no attempt by the applicant to link his evidence with the factual matrix of this case.
Doctor Kinnane
Doctor Kinnane has been a practising psychiatrist since 1992. Her qualifications and experience were not challenged.
Ms A was referred to Dr Kinnane by a general practitioner. She saw Ms A on three occasions. The first was 10 February 2000, then 10 March 2000 and finally 9 May 2000. The first consultation lasted about 50 minutes to one hour and the two other consultations lasted about 35 minutes.
At the first consultation Dr Kinnane took a history which included details of the incident. She also took a history of the symptoms Ms A was suffering. The first appointment was before Ms A was due to give evidence in court. She described Ms A as being anxious regarding her appearance as a witness. Doctor Kinnane did not make a formal diagnosis at that stage as Ms A was highly anxious and Dr Kinnane said it was hard to tell how much of the anxiety may be related, at that time, to the impending court hearing.
At the next appointment Dr Kinnane prescribed an antidepressant that also assisted in treating anxiety. When seen on 9 May, Ms A told that her that she had not taken the antidepressants. Doctor Kinnane was not concerned about that as at that stage Ms A seemed to be improving and seemed less fearful. Further appointments were made but she did not attend.
Doctor Kinnane said that Ms A’s symptoms were consistent with a PTSD but she qualified that answer in relation to the timing. Doctor Kinnane said that whilst there was an initial trauma, namely the murder, there were subsequent traumas such as threats made to her by the applicant and also the impending court case.
Doctor Kinnane was examined by the applicant in person. He put to Dr Kinnane that “Ms A’s problems appeared to be that she had an extremely traumatic experience, and that being she had witnessed the violent death of a friend back in 1999”. That of course was a statement that is consistent with Ms A’s version of events. It did not put Dr Kinnane on notice that the applicant may have been postulating a different version of events. Doctor Kinnane agreed that that was an obvious clear cause but she went on to say there could be other ones as well. I have little doubt that was a reference to the threats made by the applicant as well as the impending court case.
Doctor Kinnane emphasised that her focus was on treatment of Ms A and that the diagnosis was “a little bit academic”. She said Ms A was “highly anxious and had depressive features and neuro vegetative disturbance and a disturbance in bodily functions consistent with those problems”. If she had made a formal diagnosis of acute trauma–related anxiety, depression or mixed anxiety and depression or PTSD, it would not have altered her approach.
Doctor Kinnane had no concerns about the state of Ms A’s memory and did not do any testing of that.
Applicant’s Submissions
The applicant submits that the fresh evidence demonstrates that the key prosecution witness suffered a PTSD as a result of “what she saw when the deceased was killed”. Relying on Dr Begg’s evidence the applicant submits that:
1sufferers of PTSD can have difficulty laying down memories of the traumatic event that they have witnessed;
2such sufferers are liable to suggestion, which can infiltrate their scattered memories;
3the result is that the PTSD sufferer can have honestly held, but erroneous, memories of what happened. This occurs when suggestions are inserted into the “remembered” narrative and perceived as true, because the sufferer is trying to fill in gaps in his/her memory.
The applicant submits that, at the original trial, the defence were unable to point to anything in the evidence that supported the theory that Ms A was honest but mistaken in her recollection of the events. The defence could only mount an attack on her credibility not her reliability. Had the defence been aware of the PTSD, this may have provided a good reason why they could submit Ms A was mistaken but honest.
Further, the applicant submits that the circumstances of Ms A’s contact with the police raise the possibility of “suggestion”.
Taking those matters into account it is submitted that there was a significant possibility that, had the jury received the fresh evidence, the jury would have been left with a doubt and thus have acquitted the accused.
It is submitted that the permission Judge having granted permission to appeal, and the Court having to consider the substantive appeal, the question of extension stands or falls with the ultimate outcome of the appeal. Alternatively, given the difficulties faced by the applicant with attempting to run his legal defence from prison, and taking into account the efforts he did make, the Court should grant an extension of time within which to appeal.
Respondent’s Submissions
The respondent submits that Dr Begg had not assessed Ms A nor reviewed relevant materials or evidence. The respondent submits that the evidence of Dr Begg was too general in nature and was of little assistance in this matter. The evidence of Dr Begg, it is submitted, rose no higher than a possibility that memory might have been impacted in a negative way. It was submitted that this possibility was no greater than the possibility that the PTSD had no adverse impact. Doctor Begg’s evidence was that memory might be extremely accurate because of a PTSD. This alone, it is submitted, demonstrates the speculative nature of the applicant’s arguments. The evidence adduced by the applicant was silent as to the possibility of error in memory in this case. The respondent also points to the “independent” support of Ms A’s account from Mr Gillen.
Taking into account the fact that the “fresh evidence” had to be assessed against the trial evidence as a whole, the respondent submits that it could not be said that there is a significant possibility that, had the jury received the fresh evidence, it would have been left with a doubt and thus have acquitted the accused.
Further, the respondent submits that the applicant’s explanation for his failure to bring the appeal is inadequate. The respondent submits that there is a strong public interest in certainty and finality and that as a result this Court should exercise its discretion against the applicant and refuse the application for an extension of time in which to appeal.
Discussion
The applicant’s essential contention is that, as Ms A has been diagnosed with a PTSD, coupled with the general evidence from Dr Begg that a person who suffers a PTSD is more likely to suffer “memory problems” and “suggestibility”, this is sufficient to raise a significant possibility that had the jury received the fresh evidence, it would have been left with a reasonable doubt and acquitted the applicant.
The problems facing the applicant on his application are formidable. For Dr Begg’s “general” evidence to have any effect it had to be established that Ms A suffered a PTSD. Of that there could be no doubt. But the diagnosis was based upon the history (including symptoms) given to Dr Blakemore by Ms A, not on the facts asserted by the applicant. The applicant’s submission is in effect that Ms A suffers from a PTSD but not on the facts assumed by Dr Blakemore. An unusual feature of this case is that the factual basis said to have caused the PTSD is the same factual basis that led to the conviction of the applicant.
A major problem for the applicant is that the opinion of Dr Blakemore that Ms A suffers from a PTSD is based on two assumptions. First, the history she gave him about what she saw that night was accurate. Secondly, the symptoms she has suffered since that night are consistent with the history given. The history she gave to Dr Blakemore, about what she witnessed, was generally consistent with the evidence she gave in court.
The “fresh evidence” to be led at trial would not simply be the “fact” that Ms A suffered a PTSD. It would have to include the facts and opinion underpinning the diagnosis. This case can be distinguished from cases such as R v Bromley[10] where the relevant witness had a pre-existing psychiatric condition which may have affected his or her perception of events. Here, the issue that arises is that it is the events themselves that have led to the psychiatric disorder. Those events are in dispute.
[10] R v Bromley; R v Karpany (1986) 161 CLR 315.
I accept that the evidence of the psychiatric disorder may be admissible and evidence called to explain the disorder and how it may affect a person’s memory. However, in this matter the factual basis and symptoms underpinning the diagnosis of the psychiatric disorder would have to be led and they of course are in dispute. The simple fact that Ms A suffered a PTSD would not be sufficient.
Doctor Begg was not asked to assume the history given to Dr Blakemore was incorrect; his evidence proceeded on the assumption that a witness had suffered a PTSD.
It may be that the applicant, who was unrepresented at the permission to appeal stage, appreciated the difficulty. Some questions of Dr Kinnane, as mentioned earlier, included expressions such as “assume Ms A witnessed a violent assault”. Such a question did not put Dr Kinnane on notice that what was being postulated was a different altercation albeit violent.
This was the position adopted by the applicant’s counsel on the hearing of the appeal: that is, Ms A saw something which resulted in Mr McCormack’s death, it was violent, and therefore the Court could assume that she had suffered a PTSD irrespective of which version of facts is assumed. This submission assumes that it would be sufficient for a diagnosis of PTSD, for the witness simply to have witnessed a violent assault.
However there was no evidence to support that submission. It was essential that such a proposition be established by evidence. The submission ignores the role that consistency (or otherwise) of reported symptoms plays in the formulation of the diagnosis.
Doctor Blakemore was not called to give evidence on the application for permission to appeal. However his report was tendered. It is apposite to set out parts of his report. Doctor Blakemore reported:
Ms A gave her history at times hesitantly, and she was upset, tearful, frightened in so doing, a mood of some anxiety particularly being sustained, in keeping with her complaints. (my italics)
Ms A had reported to Dr Blakemore that she was frightened of the applicant as he had threatened her. This fact was also relevant to the opinion of Dr Kinnane.
Dr Blakemore further stated:
Ms A said that she could see outside, the scene was lit by a spotlight, and she saw Brett open the car door and, tearfully, she said, he swung and hit into Paul in the car. There were two guys outside, Ms A said, and another guy and Brett were beating into Phil with his metal pole and another guy was belting into him with something she had heard in court had been a cam shaft.
She said he was not reacting, and they pulled him out of the car, and just continued to beat him while he was on the ground. Ms A said that she was “freaking out”, the other girls didn’t seem to be too worried, but she, herself, was dry retching, she didn’t know what to do, she was scared for herself and for him.
Outside, Ms A said, distressed, there was blood everywhere, and she said they pulled him out into full view (his body had been half obscured by the car) and she said she could hear noises, she didn’t know whether they were from Phil or from them, but she said she can still hear them from time to time. Tearfully, Ms A said, she could not recognise Phil, he was so covered in blood, she said she kept turning away, she couldn’t bear to watch, and then she couldn’t bear not to see.
Ms A said that they put something on Phil’s face, it might have been a tea towel, and reversed another car up to him, a Ford, and put Phil into the boot. She was “freaking out”, Ms A repeated, and then she said the three men came in, and she said Brett said that they couldn’t say anything, because they were all accomplices to murder, and she said, looking at her, he said she wouldn’t want to be the next person in the boot. Ms A said they got a hose and sprayed water all through her car, and then everyone left. She was there with the 14-year old girl, too scared to leave and too scared to stay, it was about 7.00 a.m. She went out to her car, Ms A said, and sat in it, it was drenched, and “freaked out”. (my italics)
There are a number of references to Ms A being “freaked out” as a result of the beating. There are also references to her being tearful and scared. The incident, according to Ms A, was not over quickly, as the applicant and Mr Hersbach claimed. Further, Ms A told Dr Blakemore, as she had said at trial, that the applicant threatened her. Ms A told Dr Blakemore that she was terrified of the applicant. She also said that she was angry with the applicant about what he had done “to her life”. Ms A’s symptoms included the complaint that, occasionally when she is driving and sees someone in a car, she “could swear it was” the applicant. Ms A has a stated fear of the applicant which is incongruous with the applicant’s version of events.
Ms A stated that movies with violence can make her ill. Ms A said that “she has tried to block it out of her mind but there are some things she just cannot forget”.
It can be seen that there is more to a diagnosis of a PTSD than simply the witnessing of a traumatic event. That was the effect of Dr Begg’s and Dr Kinnane’s evidence. What weight Dr Blakemore placed on the matters referred to above is simply unknown. It cannot be assumed that, if one were to substitute Ms A’s evidence of the incident with that of the applicant, a diagnosis of a PTSD would be made. How the substituted version of events would fit with Ms A’s symptoms, particularly her fear of the applicant, is not known.
Simply asserting that Ms A suffered a PTSD does not advance the position for the applicant. What the applicant needed to raise with Dr Begg was for him to assume the applicant’s version of events. Then, as a result of Ms A witnessing those events, and that alone, she suffered a PTSD – or at least that was a reasonable possibility. The applicant has not produced evidence to that effect.
The difficulty of establishing that, on a different version of events, and on just the events themselves (leaving aside the question of symptoms), Ms A suffered a PTSD is manifest. This is particularly so where the psychiatrist has not consulted with Ms A. The applicant has not produced any evidence that Ms A, on the version of events he puts forward, did suffer or may have suffered a PTSD. The only evidence produced is that Ms A did suffer a PTSD on a version of events consistent with her evidence at trial, and that the description to Dr Blakemore of the symptoms she has and continues to have, including fear of the applicant, are consistent with the history given.
The applicant submits that the history given to Dr Blakemore was in fact inconsistent, particularly related to the number of men she observed outside assaulting Mr McCormack. At the trial, Ms A gave evidence that she only saw two men outside by the car apart from Mr McCormack. She was cross-examined extensively about the fact that there were three men outside, the third being Mr Mohi. Ms A said she only saw two. She agreed that she saw three men come back inside. Ms A did not deny there may have been three men outside: she simply stated that she only saw two, the applicant and Mr Hersbach.
Doctor Blakemore recorded the history as follows:
“Ms A said that she was in the house the whole time, there was another girl and a 14 year old girl, there were three men outside.
Ms A said that she could see outside, the scene was lit by a spotlight, and she saw Brett open the car door and, tearfully, she said, he swung and hit into Phil in the car. There were two guys outside, Ms A said, and another guy and Brett were beating into Phil…
It can be seen that in the correct context the history given is not inconsistent.
However, pointing out inconsistencies in the history given to Dr Blakemore may if proved do no more than undermine, and therefore cause doubt about, the diagnosis of a PTSD. They do not, if established, prove that Ms A had a PTSD on a different basis.
Admissibility of the “fresh evidence”
The issues discussed also become relevant when considering the admissibility of the “fresh evidence”. As previously mentioned the “fresh evidence” to be led at trial would not simply be the “fact” that Ms A suffered a PTSD. It would have to include the facts and opinion underpinning the diagnosis. As discussed, unlike the case of Bromley, here the “cause” of the PTSD is a central issue. It is likely that this would require Dr Blakemore to be called. The jury would receive not just his diagnosis but also the facts and the reasoning behind his diagnosis. Doctor Blakemore would then have to have put to him different assumptions and be asked whether, on those assumptions, it was a reasonable possibility that Ms A suffered a PTSD. This may then give the opinion of Dr Begg a foundation. Thus if this process were adopted, the jury would have before it evidence of a prior consistent statement by Ms A, along with symptoms consistent with her witnessing the event(s) she related. This would raise very difficult forensic decisions for the applicant.
Alternatively, and as indicated above, a psychiatrist such as Dr Begg could be called to give evidence and, on assumed facts (namely the version of events put forward by the applicant), asked whether it was a reasonable possibility on those facts that Ms A did suffer a PTSD. The applicant has not led evidence as to what the answer of Dr Begg may be to such a proposition.
I cannot say that the fresh material could not be given in evidence if there were to be a retrial. However it must be observed that the forensic challenges for the applicant and the “downside” to the applicant in having the basis of the diagnosis of the PTSD before a jury are formidable.
PTSD in the context of the evidence at trial
The “fresh evidence” has to be looked at in the context of the trial evidence as a whole.
If the Court were to accept that the diagnosis of PTSD can simply be made on the version of events said by the applicant to have occurred, significant problems still arise. The fresh evidence, in the context of this application, applies not to discredit Ms A but to mount an argument that she is honest but unreliable. This approach means that the applicant accepts that what Ms A says she witnessed is what she truly (but mistakenly) believes happened. Although she saw a violent but different event, her memory, one that is actually causative of her PTSD, is in fact substantially incorrect.
It is important to consider the discrepancies between Ms A’s evidence and that of the applicant. Ms A said that the violent incident began whilst Mr McCormack was in the car. She witnessed the applicant and Mr Hersbach brutally attack Mr McCormack while he was still sitting defenceless in the car, the attack lasting for minutes. This was followed by a sustained and brutal attack occurring outside the car, again by the applicant and Mr Hersbach, for minutes while Mr McCormack was still defenceless. What the applicant suggests is that Ms A witnessed Mr McCormack get out of the car, brandish a gun, get involved in a very brief fight during which Mr McCormack received two punches, two blows to the shoulder and neck area, one to the face which caused him to fall to the ground and finally a blow to the face which killed him. It may be of course that the gun could not be seen from where Ms A was watching. However the evidence of Mr Hersbach and the applicant was that the incident was over very quickly, within seconds. The actions by the applicant and Mr Hersbach were in self-defence; Mr McCormack was the aggressor. The evidence of both the applicant and Mr Hersbach was that the behaviour of Ms A after the event was unremarkable such that both of them thought she had not seen anything.
It can be seen that, on the applicant’s account, not only has Ms A got the location of the commencement of the fight wrong, she is wrong about who was involved, how long it took and how violent it was. Allegedly she was calm after the event and did not appear to be distressed in any way.
To state these matters is to indicate the difficult task facing the applicant. Not surprisingly perhaps, nothing like the applicant’s scenario was put to Dr Begg for his comment. The only evidence led from Dr Begg was general evidence to the effect that some people who witness a traumatic event may, but not necessarily so, go on to develop a PTSD. This he suggested may affect the way in which memories are laid down and later recalled. The evidence went no further. No one scenario was more likely than the other.
Apart from the issues discussed, other evidence in the case presents difficulties for the applicant.
Prior to the violence occurring, Ms A said that she wanted to leave with Mr McCormack. She alleged that the applicant told her that she could not leave. Ms A alleged that after the events the applicant came back into the house and stated to the people in the house that they were all “accessories to murder”. The applicant threatened Ms A that he would “kill her” if she said anything to the police. How a PTSD could account for these matters was not addressed with Dr Begg. Further, Ms A alleged that the applicant told her what to tell the police if she were questioned. It also could not be said that there is any evidential basis that a PTSD could account for that version of events.
Ms A also gave evidence that, when she returned to her car after the body of Mr McCormack had been removed, the inside of her car had been cleaned. The “map” pocket on the passenger side door was full of water. The seats were very wet. It is clear that the inside of her car, if her evidence was accepted, had been cleaned. If no assault of Mr McCormack had occurred inside the car, it would not have needed to be cleaned. It is difficult to relate this evidence to the PTSD.
In relation to how Ms A appeared to react to what she had seen, the applicant gave evidence that, after the incident, he saw Ms A and another female out on the front porch. He told them that Mr McCormack was dead. He said that they did not look shocked or anything. He did not know if they knew what had happened.[11] This evidence was not put to Dr Begg and is, without some explanation, incongruous with the development of a PTSD.
[11] At first the applicant said he saw them in the lounge. Later he said it was the front porch.
It is difficult to see how the “fresh evidence” could account for Ms A’s evidence about the above matters. It cannot account for the evidence of Mr Gillen.
Doctor Begg was not asked any questions that related his opinion to the facts of this case (apart from “suggestibility” which is dealt with later). It can be accepted that Dr Begg could not be asked the ultimate question, namely was Ms A’s memory affected by a PTSD. However his opinion could have been sought on many of the issues raised. I accept that it would have been difficult for the applicant, who was unrepresented at the permission to appeal stage, to have understood the subtleties of this position. However the Court can only determine this application on the material before it.
The possibility that Ms A suffered a PTSD on the version of events put forward by the applicant has simply not been established. For Dr Begg’s evidence to have relevance on the facts of this case, that was an essential step. Even assuming that it had been established, the evidence of Dr Begg is simply speculative.
The “fresh evidence” failed to address any of these issues and was totally inadequate. Without a proper foundation Dr Begg’s evidence was simply speculative.
Suggestibility
The applicant submits that Ms A’s contact with the police, given that she had witnessed a traumatic event, raised the possibility of “suggestion”. Although it was raised in conjunction with Ms A’s PTSD, I will deal with it as potentially arising simply from witnessing a traumatic, but unspecified, event.
It is important to understand that the issue of “pressure” being put on Ms A by the police was a live issue at the trial. The question of whether the police deliberately put pressure on Ms A, and she consciously gave a statement in line with that pressure, is not part of the fresh evidence application. What is allegedly “fresh” here is that Ms A, having witnessed a traumatic event, may have been psychologically disposed, unknowingly and innocently as a traumatised witness, to incorporate into her evidence a number of suggestions made by the police during their discussions with her.
The applicant submits:
In the first 5/2/99 interview, police provided information to her. This is the fons et origo of where it could be said that suggestion potentially comes into play:
1At Q 173 police inform her that they think McCormack has been bashed and that “it occurred in your vehicle”. This is the crucial commencement of the suggestion and most importantly, it introduces the bashing inside the car, which is where A and the applicant and his co-accused disagreed;
2It is described as a ‘rumour’: Q176;
3She is cautioned: Q174;
4The bashing then turns into murder: Q184;
5It is imperative that police get the names of people: Q201.
As the investigation progressed, evidence against Ms A that had been discovered was revealed to Ms A during the recorded interviews. Over the first three interviews she modified her accounts to police but continued to deny any knowledge of an offence.
During the 3rd video-recorded interview (9/2/99), important aspects of the police investigation were revealed to her and numerous ‘beliefs’ held by the police were put to her – Q.13 “what we believe … to have been blood specks on the inside panel”;
The clear effect of the interviews is that police did not allow her to speak as to what she knew but rather they told her information. From this, [Ms A] was able to know that the following things, all provided to her by police who were supposed to ask open-ended questions of suspects and witnesses:
1[Mr McCormack] had been bashed;
2as a result he had died;
3the bashing had occurred inside her vehicle.
This is the heart of the suggestion argument.
The applicant also relies upon the evidence of Dr Begg.
When asked generally about the topic of suggestibility Dr Begg stated:
In a post-traumatic stress disorder, that feature is more predominant, there’s often a fragmentation of the memory, that is, they don’t remember all aspects. At the time and shortly after the trauma the person is in a very disturbed emotional state, often very frightened, they’re unsure of what’s happened, and in that uncertainty people seek reassurance, they look to others to tell them to make sense of what’s occurred. The classic example, of course, of a normal human experience is a young child who hurts themselves. The child is frightened, screaming uncontrollably. The mother looks at the child and sees they have only a small scratch. The mother can say, ‘It is only a small scratch, nothing to worry about’. That helps the child have an understanding. If we take that in the adult section where someone is traumatised, often their life has been threatened, they will look to others to help them understand and make sense of what’s occurred. That’s where distortions can occur, particularly if false ideas are given to the person at that time. Obviously, the court’s well aware that it’s important to look at the immediate recollection of a person at the time of the event and to understand whether they’ve been influenced by what others have said to them about the event. (my italics)
He later stated:
QDoctor, one of the other phenomenon I’ve researched, and I think you’ve mentioned it earlier, that could also have a potentially compounding effect on traumatic memory is called ‘suggestion’ and I understand suggestion can have its effect after the trauma event. Could you please explain to the court briefly – I know you have touched on a little of this already – what suggestion means in the context of interfering with a witness’s memory.
APeople like to please, they like to be helpful and they don’t like to have uncertainty, so if there is uncertainty in their memory about an event that’s just occurred and particularly if they are uncertain because they are feeling frightened and distressed, then they are more likely to pay attention and agree with and please somebody who presents themselves in authority, able to manage the anxiety and will more readily agree to any ideas that are either directly or implicitly put to a person. So suggestions can be given directly, ‘did you see the man with the gun?’ That also has an implicit suggestion that there was a gun and there’s very, if you like compelling research on people in situations where it’s clearly, they are given false ideas but they are repeatedly told and they come to believe it. So it’s more likely to occur in a traumatic situation because the person is frightened and the police, for example, have a role here because of their authority and their general calm demeanour in a situation where everybody else is frightened and so it’s important that the police, for example, in interviewing the witnesses and victims are very careful in what they say and don’t accidentally or unintentionally give false ideas to the person. (my italics)
Doctor Begg was assuming that the person in authority was speaking to the witness close in time to the traumatic event and that the witness, being vulnerable, was “looking” to the person in authority. That is not what occurred here.
The incident occurred in the early hours of the morning of 30 January 1999. The first contact the police had with Ms A was on 5 February 1999, that is six days later. There was no evidence from Dr Begg as to how suggestible a witness would be six days after the event. Nor were the particular circumstances in which Ms A found herself put to Dr Begg. That is Ms A, rather than looking to the police for assistance was, on her own version, telling them lies. Ms A was initially denying any knowledge of having been involved or witnessing any incident.
When the questions allegedly capable of being “suggestive” were asked, Ms A simply denied them. For example when asked whether her car was “involved”, she told the police that “no way would I let that happen in my car”. When accused of in some way being involved in the murder, she replied “No way”. She continued to deny having witnessed anything in the first three interviews. It was not “suggested” to her that the applicant was in any way implicated.
None of these matters were raised with Dr Begg. Doctor Begg’s evidence about suggestibility was general evidence only. He stated that if there is uncertainty in a person’s memory about an event that has just occurred, particularly if they are feeling frightened and distressed, they are more likely to pay attention to, and agree with, someone who presents themselves as a person in authority.
The videos of the police interviews with Ms A were played to the jury, at the request of the applicant, to demonstrate how Ms A did not appear to be stressed or anxious when speaking to the police as she had suggested in her evidence; it was also said to demonstrate what “a good liar” she was.
The questions relied on by the applicant, as set out above, were not put to Dr Begg for his comment. When putting questions on the topic of “suggestibility” to Dr Begg, the applicant used phrases such as the police using “repeated suggestions and bias”. Such comments are unhelpful and make it difficult to interpret Dr Begg’s answers. The factual matrix surrounding the questions was not put to Dr Begg by the applicant nor was Dr Begg informed that Ms A initially denied the “suggestions”.
The evidence on this topic given by Dr Begg is so general as to lack utility on this application. That is not intended as a criticism of Dr Begg who was clearly attempting to assist the Court.
The Mohi issue
Finally the applicant refers in submissions to the “Mohi” issue. Mr Mohi, as discussed earlier, was not called by the prosecution as a witness at the trial: the prosecution against him was permanently stayed. Statements made by Mr Mohi were made available to the applicant. The applicant did not call Mr Mohi to give evidence.
It is submitted that, on this application, the Court can have regard to the statements of Mr Mohi even though the material is not “fresh”. The prosecution against Mr Mohi has been permanently stayed. Given the election made by the prosecution at the last trial not to call him as a witness and to have him face charges, it is most unlikely that he could be called as a prosecution witness on a retrial. For the reasons set out below the defence would not call Mr Mohi. It is not clear to me how the statements of Mr Mohi could be relevant to this application. However as the matter was argued I will deal with it.
The applicant pointed to inconsistencies between what Mr Mohi said and what Ms A said she saw. He submitted that the inconsistencies could assist a submission that her evidence could be viewed as unreliable.
It is correct to observe that parts of Mr Mohi’s statements were inconsistent with Ms A’s version. Importantly, however, Mr Mohi’s statements support Ms A’s evidence that the incident commenced with the applicant and Mr Hersbach assaulting Mr McCormack with weapons whilst Mr McCormack was still in the car. As stated by Mr Mohi, Mr McCormack did not voluntarily get out of the car nor did he pull out a gun. In those circumstances it is unsurprising that the applicant did not call Mr Mohi: it would have been fatal to his case. Rather than demonstrating unreliability, Mr Mohi’s statement supported Ms A in the most important issue at the trial, namely where and how the initial assault occurred.
In my view consideration of the “Mohi” issue does not assist the applicant.
In any event the Mohi evidence is not “fresh” evidence. It was available to be called by the applicant at trial.
Conclusion
For the reasons discussed above the applicant has not established that there is a significant possibility that had the jury received the fresh evidence, they would have been left with a doubt and acquitted the applicant.
The applicant does not have any prospects of success in establishing any of the grounds of appeal.
Extension of time
An appeal is some 14 and a half years out of time.
The applicant relies upon the following evidence for an extension of time:
1Affidavit of Brett Stuart Williams, applicant, sworn, 9 December 2014;
2Affidavit of Brett Stuart Williams, applicant, sworn, 9 December 2014; and
3Evidence of Brett Stuart Williams, applicant, given in court before Vanstone J on 29 April 2016.
There are serious problems for the applicant in establishing the basis for an extension of time. Even allowing for the difficulties faced by the applicant in collating material while in prison, the material produced arguably does not satisfactorily explain the extraordinary delay in bringing this particular application. However it is not necessary to make a final determination based on the material produced.
I have already found that the grounds of appeal have no prospects of success. The applicant conceded that there is no utility in granting an extension of time in respect of a meritless appeal.
In those circumstances the application for an extension of time in which to appeal should be refused and the appeal dismissed.
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