Regina v Heatley

[2002] NSWCCA 297

CITATION:	Regina v Heatley [2002] NSWCCA 297 revised - 04/06/2004
FILE NUMBER(S):	CCA 60086/98
HEARING DATE(S):	27 March 2002
JUDGMENT DATE:	30 July 2002
PARTIES :	Regina v Earl Heatley
JUDGMENT OF:	Levine J at 1; Simpson J at 1; Carruthers AJ at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70058/95
LOWER COURT JUDICIAL OFFICER :	McInerney J

COUNSEL :	Appellant - W.C. Terracini SC Crown - L. Lamprati
SOLICITORS:	Appellant - Mark Lees & Associates Crown - S.E. O'Connor
CATCHWORDS:	Criminal law - appeal against convictions for murder and malicious wounding - probative value of witnesses' statements to police following leave to cross-examine by prosecutor as unfavourable witnesses - whether convictions unreasonable or unable to be supported having regard to the evidence - whether there should be a new trial.
LEGISLATION CITED:	Crimes Act 1900, s18, s33, s316(1) Criminal Appeal Act 1912, s6, s6(1), s8 Evidence Act 1995, s32, s38, s60 Mental Health (Criminal Procedure) Act 1990, s39
CASES CITED:	Driscoll v The Queen (1977) 137 CLR 517 Festa v The Queen (2001) 176 ALJR 291 Lee v The Queen (1998) 195 CLR 594 R v Benecke [1999] NSWCCA 163
DECISION:	Appeal allowed.; Convictions quashed.; New trial on all counts.

60086/98

LEVINE J
SIMPSON J
CARRUTHERS AJ

Tuesday, 30 July 2002

REGINA v Earl HEATLEY

Judgment

1 THE COURT: Earl Heatley (the appellant) appeals against three convictions at the Central Criminal Court on 13 October 1997.

2 The appellant was arraigned before McInerney J and a jury of twelve at the Central Criminal Court, Sydney on 8 September 1997 upon an indictment containing three counts.

3 The first count was that on 1 October 1994 he murdered Desmond Forrest Clarke Thompson. The second count was that he murdered Paul Heatley. Both these counts were pursuant to s 18 of the Crimes Act, 1900 (the Act). The third count was that he maliciously wounded Thomas Alan Bithel pursuant to s 33 of the Act. The appellant pleaded not guilty to each count.

4 Michael John Stevens was tried jointly with the appellant on one count of concealing a serious offence pursuant to s 316(1) of the Act.

5 On 13 October 1997 the appellant was convicted on all counts and Michael Stevens was acquitted.

6 On 27 February 1998, his Honour sentenced the appellant to penal servitude for life in relation to the conviction on the first count. In relation to the second count the appellant was sentenced to a fixed term of twenty years penal servitude to commence on 6 October 1994 and to expire on 5 October 2014. In relation to the third count the appellant was sentenced to a fixed term of fifteen years penal servitude to commence on 6 October 1994 and to expire on 5 October 2009.

7 Paul Heatley, who is the alleged victim in the second murder count, was the appellant’s brother. Both the appellant and Paul Heatley had served long sentences for serious crime. As at the date of the alleged murders, the appellant was residing with Paul (whose nickname was Ned) and Paul’s de facto wife Marie Jane Clarke at 7 Wayland Avenue, Lidcombe. Also resident in that home was Melissa (then aged seven) who is Marie’s daughter by her relationship with Paul. From time to time Michael Heatley, Paul’s son from a previous relationship also resided in that home.

8 Paul also had two other children from the earlier relationship, namely, Karyn Heatley and Christine Tracy Heatley.

9 Christine lived with her partner Maher Abadlla in an apartment at Bondi. Karyn lived with her partner Roger Bissett in a house at Lethbridge Park.

10 Marie Clarke owned a Ford Falcon silver metallic motor vehicle of about 1989 vintage and the appellant owned a Ford Escort motor vehicle. Both these vehicles were kept at Wayland Avenue.

11 The appellant has a second brother, Tony Heatley (whose nickname is Grub).

The Crown Case.

12 The Crown case can be briefly summarised as follows. The late Desmond Thompson, who is the alleged victim in the first murder count, was the owner of a factory located in a complex of factories at Leighton Place, Asquith. The business was conducted through the company D.F.C. Thompson Pty Limited. The factory premises were used for the storage of various chemicals including substances which are the precursor in the manufacture of methylamphetamine.

13 The Crown case was that the appellant and Paul Heatley were involved on 1 October 1994 (which was a Saturday) in an attempted armed robbery of those premises. It would appear that other people whose identity is unknown may have been involved.

14 At approximately 1.30 pm, whilst cleaning the premises, Mr Thomas Bithel (the alleged victim in the third count) became aware of the presence of two offenders. One wore a mask, which was described as ribbed material from the chin to the top of the head with no eyeholes, of a beanie style, but open at the top. According to the Crown case this was the appellant. This “mask” matched the description of the “cut-off arm” of a brown pullover found near the body of the deceased Paul Heatley, after the attempted robbery.

15 The Crown case was that prior to Mr Bithel becoming aware of the offenders’ presence, they had tied Mr Thompson up apparently using white adhesive tape and black plastic tie clips (of the kind used by electricians) and left him in the office area. Some witnesses use the description black plastic cable ties. However, it is obvious that they are referring to the same piece of equipment as black plastic tie clips. For the sake of uniformity we shall adopt the latter description throughout this judgment.

16 Mr Bithel deposed that as he was operating a floor scrubber, he heard a voice saying, “Okay, son, shut the machine off”.

17 As Mr Bithel turned around he observed the masked man had what appeared to be a weapon in his hand with a yellow piece of towelling draped over it. The man standing next to him was unmasked but he had rubber gloves on his hands. According to the Crown case the latter person was Paul Heatley.

18 The voice said “Don’t do anything stupid, come with us”. Mr Bithel was then pushed towards the plastic doors that separated the warehouse from the loading dock and the office area in which Mr Thompson had been detained.

19 After passing through the doors, Mr Bithel observed that Mr Thompson was in the office, but he was no longer bound and he was speaking on the telephone.

20 The unmasked man then said, “He’s on the bloody phone, he’s on the bloody phone”. He rushed down the factory and went into the office. He then grabbed the phone from Mr Thompson, punched him in the face and tried to rip the phone cord out of the connection. Then the unmasked man turned around and hit Mr Thompson again and rushed into the foyer, described as a little vestibule. He then shouted out “He’s called them, he’s bloody called them”, and commenced to leave the vestibule.

21 Mr Bithel noticed that Mr Thompson ran out and tackled the unmasked man. His evidence was that the man “… grabbed hold of him around the shirt, around the neck and they were struggling” (T 25). This struggle occurred just inside the vestibule by the door entrance.

22 The unmasked man then cried out, “Shoot him, shoot him, shoot him”, whereupon Mr Bithel heard a gun go off, just to his right side and behind him.

23 Mr Bithel saw Mr Thompson lurch sideways. Then he heard another shot and a bullet hit his left arm totally shattering the arm. He also heard a third shot.

24 He then saw the two offenders leaving the building.

25 Mr Bithel then asked a fellow employee, Cameron Scott, to ring the police and the ambulance. He then looked across the car park and observed the unmasked man lying on the ground of the car park.

26 Mr Scott deposed that he heard three or four shots before coming to Mr Bithel’s aid.

27 Shortly thereafter police and ambulance attended the scene. There was detailed evidence placed before the jury as to the position of the bodies of the two deceased men and the position of four spent cartridge shells and bullet fragments which were subsequently located.

28 Dr Peter Ellis, forensic pathologist, conducted a post mortem examination on Mr Thompson on 2 October. Dr Ellis detected two wounds which were said to be caused by one projectile entering near the right ear and exiting below the jaw on the lower part of the left side of the neck, having been deflected by the bottom of the skull. Three further wounds were detected, the bullet having entered the right upper arm, exited the inside of the upper arm and then immediately entered the chest, coming to rest inside the skin where it was found on post mortem. This latter bullet damaged one of the ribs on the right hand side, and also went through the right lung into the cavity around the heart. Finally, there were wounds caused by a bullet entering and exiting the left thigh.

29 Dr Ellis also conducted a post mortem examination on 2 October of Paul Heatley. He detected an entry wound on the left side of the chest just underneath the armpit, and an exit wound lower down on the right side of the chest. Death was said to have been caused by damage to the heart and both lungs caused by the path of the bullet. Morphine was found in the liver, indicating the consumption of heroin or morphine prior to death.

30 Dr Ellis agreed in cross-examination that there was no evidence based on the wounds analysed on the two bodies to suggest that any bullet passed from one body into another (T211).

31 It appears that five shots were fired, although only four spent cartridge cases were found. None of these was located outside the factory in the vicinity of Paul Heatley’s body.

32 Detective Ray Grima from the Forensic Ballistic Section of the New South Wales Police attended the crime scene. He noted that green rubber gloves were found on the body of Paul Heatley, and described a trail of apparent blood between the body and the plastic doors in the factory. The cartridge cases which were examined, demonstrated that they had all come from the one weapon, said to be a self-loading pistol, probably a Luger manufactured weapon. The complete bullets removed from the body of Mr Thompson and the arm of Mr Bithel had the characteristics of being discharged from a 7.65 mm parabellum cartridge. The pistol has never been located.

33 Having been present during Dr Ellis’ post mortem examination, Detective Grima formed the opinion, from the markings around the entry wound to the right side of Mr Thompson’s head that the muzzle of the weapon was in near contact at the time of discharge (T262-269).

34 A Toyota Lite Ace van registered number LEL-352, was observed by police on 3 October in Leighton Place, closed but unlocked, with the windows open and the key in the ignition. It was parked 160 metres from the factory premises.

35 Investigation established that the van had been purchased from a car dealer in Lewisham on the day of the offences, probably between 11 am and 12 midday. A later estimate was said to be 1.30 to 2 pm. It was sold to a man described as being around twenty-six to twenty-eight years of age, of Caucasian appearance, who gave a false name and address.

36 Detective Forbes deposed that police located a brown “Just Jeans” jumper with the sleeves removed in the van. This matched the sleeve found near the body of Paul Heatley. The other sleeve was not located. Police also found a brown serrated knife, which Marie Clarke later identified as being from her cutlery drawer. Police also found six white (sic) plastic tie clips in the van (T73).

37 The appellant gave evidence in support of his alibi. He said that at the time of the robbery he was at a TAB in the Lidcombe area with Michael Heatley. He also denied making any admission to the police or the lay witnesses.

38 McInerney J described as “the cornerstone of the Crown case” against the appellant, the admissions alleged to have been made by the appellant to family members on the afternoon and night of 1 October, and to a limited extent afterwards. We shall refer later in a little detail to the evidence given by the witnesses relied upon by the Crown to establish the alleged admissions.

39 For present purposes it is sufficient to note that Marie Clarke gave first hand evidence of admissions having been made. Karyn Heatley did not seek to resile from her statements to the police which referred to admissions made to her, but refreshed her memory from the statements during the course of her evidence.

40 Michael Heatley gave first hand evidence of some admissions but resiled from significant parts of his statement. Christine Heatley and Roger Bissett resiled from their statements and his Honour granted the Crown Prosecutor leave to cross-examine these latter three witnesses, pursuant to s 38 of the Evidence Act 1995, as unfavourable witnesses. No such application was necessary in respect of Marie Clarke and Karyn Heatley, who both adhered to their statements.

Grounds of Appeal.

41 There were twelve grounds of appeal originally filed. It is convenient, however, to consider in the first instance the sixth ground of appeal.

The Sixth Ground of Appeal.

42 The sixth ground of appeal alleged that his Honour had given erroneous directions in relation to the witnesses who had been declared unfavourable.

43 With regard to the evidence of those witnesses, his Honour gave the following directions to the jury during the course of his summing-up:

“There has been considerable cross examination in this case and of course, members of the jury, as has been pointed out to you, and I will come to the way you deal with the evidence of the young people, if one can describe them as that, as I go along with this summing up.
The Crown was given permission by me to cross examine various witnesses. Normally when the Crown calls a witness they cannot cross examine. The cross examiner can put suggestions to witnesses, ‘I put to you’, whereas when you are leading evidence, that is not available, but because I am entitled under the evidence Act in this State, if I am satisfied, I can grant the Crown leave to cross examine witnesses about previous statements that they have made, and this is a very important issue in this case, members of the jury, probably the most important issue that you will have to decide, what you make of those statements that those people have made to the police, because the Crown is entitled to rely on those statement as evidence of the facts .
So you can see how important those statements are, and what you make of them. It is entirely what you make of them, but they are, you might think, the cornerstone or the crux of the Crown case. If you were to say, ‘I am in doubt about all those statements. I believe they were lying when they made them’, then you will find the accused not guilty.” (SU 15-16) (Our emphasis.)

44 And later:

“If you are not prepared to act on and accept the evidence of Marie Clarke and to accept the statements made by Christine, Michael, Karyn and Roger Bissett at the time to the police, then it seems to me that you would have no alternative but to find him not guilty.” (SU 20-21)

45 And later:

“You look at this evidence and bring your common sense to bear and see whether that makes sense. The real issue in this case, as I have said, is whether you accept, as you are entitled to do with evidence of the facts, the statements made by them at the time. You are entitled to disregard their evidence before you and you are entitled to accept their statements to the police as revealing the true facts of what the accused had told them after 1 October and what they had observed.
If, however, you have a doubt that is reasonable about the accuracy of those statements, then you would conclude in the accused’s favour.” (SU 21-22)

46 And later:

“The major issue you will have to decide in this case is whether the original statements which Roger Bissett and the children made to the police on 6 October set out the true facts as they existed at the time. As I have explained to you, you are entitled, if you are so minded, to accept what they said in the statements as the real version of the facts and if you are satisfied that those facts are true you could then conclude beyond reasonable doubt that the accused was guilty of the offences with which he is charged.
The Crown, as I understand their case, submits to you that you would have no hesitation in rejecting the majority of the evidence they have given in this court. That when you examine the evidence you will be driven to conclude beyond reasonable doubt that the original statements set out the true version. The Crown says the unsatisfactory attempts to explain how they were seized with the detail of what occurred and what you know occurred would lead you to conclude that even in their wildest imaginations they would have been unable to come up with the versions that they did and at least the attempts of Michael Heatley, Roger Bissett and others to get around these statements is at least implausible. So that is the issue that the Crown puts to you in respect of those matters. Let us be honest about it, those statements are the cornerstone of the Crown case.” (SU 58-59)

47 These directions were consistent with the state of the law as it was understood at the time of the summing-up. In short, his Honour allowed the alleged admissions from which Christine and Michael Heatley and Roger Bissett had resiled in evidence, to go before the jury as evidence of the facts going to establish the appellant’s guilt, if the jury accepted beyond reasonable doubt that the admissions had been made to the three witnesses by the appellant, as recorded in their statements.

48 McInerney J was apparently relying upon s 60 of the Evidence Act 1995 to support the direction which he gave. Section 60 provides:

“The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”

49 However, in Lee v The Queen (1998) 195 CLR 594, the High Court (Gleeson CJ, Gummow, Kirby, Hayne & Callinan JJ) held that s 60 did not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert. Thus the statements by the three abovementioned witnesses to the police that the appellant had stated to them that he had done certain things, could not be converted into evidence that the appellant had in fact done those things.

50 The effect of Lee is, therefore, that his Honour’s direction was erroneous. Because of the importance of the admissions which the appellant allegedly made to the three witnesses who were declared to be unfavourable to the Crown, it is not a case which allows for the application of the proviso to s 6 of the Criminal Appeal Act 1912, as amended. As Kirby J pointed out in Festa v The Queen (2001) 176 ALJR 291 at 325, the High Court has expressed a diminished willingness to apply the proviso. Indeed, the proviso may only be safely applied where the conviction is inevitable. Accordingly, the convictions must necessarily be quashed.

Ground Eleven.

51 That being so, the sole remaining question for this Court is whether ground 11 should be upheld. This ground is in the following terms:

“The verdicts were unreasonable, and/or cannot be supported, having regard to the evidence.”

52 The appellant submits that if this ground is upheld a verdict of acquittal should be entered in respect of all counts.

53 At the outset of the hearing of the appeal, an application was made by senior counsel for the appellant that the Court receive, what was categorised as fresh evidence, regarding Michael Heatley.

54 Ultimately, the Court agreed to admit the material, being three psychiatric reports, as Exhibit A in the appeal. The Court reserved, however, the question of the ultimate ambit of the relevance of the material.

55 By way of background, the Court was informed that on 29 January 2001, his Honour Judge Shillington DCJ found Michael Heatley not guilty of three counts of armed robbery, which offences occurred after the trial in the instant matter, on the grounds of mental illness, and remanded him in custody pursuant to s 39 of the Mental Health (Criminal Procedure) Act, 1990.

56 It appears that the mental illness disclosed in those proceedings was schizophrenia and/or other bi-polar disorder, dating back for a number of years, and prior to the death of his father Paul.

57 The additional evidence, as we shall call it, consisted of a report dated 10 March 2000 of Dr Rosalie Wilcox, general and forensic psychiatrist, which was obtained by the solicitors for Michael Heatley; the report dated 12 July 2000 of Dr William E. Lucas, psychiatrist, which was also obtained on behalf of the defence and the report of Dr Bruce Westmore, forensic psychiatrist, dated 22 January 2001 which was obtained on behalf of the Crown.

58 Dr Wilcox, who was the treating psychiatrist, made a diagnosis of paranoid schizophrenia with a history of several years of auditory hallucinations and persecutory delusions. She thought that a differential diagnosis was a schizoaffective disorder as Michael has had periods of mood elevation and depression that have not been associated with paranoia.

59 Dr Wilcox said that Michael has a mental illness which will require long term treatment. She was of the view that at the time of the armed robberies, to which he pleaded guilty, he was suffering from a disease of the mind and, although he would have been aware of the physical nature and quality of his actions, it is probable that he was unable to reason with a moderate degree of sense and composure about the wrongness of his actions.

60 Dr Lucas found on the history and the information available to him that it was probable that Michael suffers from chronic paranoid schizophrenia, another possibility being schizoaffective psychosis which would take into account the variations in mood he reported.

61 Dr Westmore concurred with the opinions expressed by Drs Wilcox and Lucas that Michael is suffering from a mental illness which was, on the history available, present at the time the armed robberies occurred.

62 Dr Westmore’s provisional diagnosis differed from that offered by Drs Wilcox and Lucas in that he believed that Michael has a bi-polar affective disorder with psychotic features. This condition may have been aggravated in the past when Michael misused illicit substances such as cannabis and amphetamines.

63 On the history available to Dr Westmore, Michael was acutely mentally ill at the time the offending behaviour occurred and there appeared to be a direct and positive relationship between his psychotic thought processes and the offending behaviour. He required, in Dr Westmore’s view, long term psychiatric support and supervision.

64 Counsel for the appellant submitted to this Court that if that additional evidence had been available in 1997 at the time of the appellant’s trial it should have:

· Had an impact upon the decision of the Crown as to whether Michael Heatley should be called at all;

· Had an impact upon whether the trial judge ought to grant leave under s 38 to cross-examine Michael Heatley;

· Had an impact upon the ambit of cross-examination permitted to the Crown; and

· Had an impact upon the trial judge’s treatment of the witness and his evidence.

65 This additional evidence does establish that Michael Heatley could well have been suffering from a serious psychiatric illness at the time he gave evidence in the subject trial.

66 It is appropriate, therefore, to take the additional evidence into account when considering this ground of appeal.

67 The Crown contends (and counsel for the appellant denies) that absent the evidence of Michael Heatley, Christine Heatley and Roger Bissett, the remainder of the Crown case was sufficiently strong to justify a reasonable jury convicting the appellant.

68 It is appropriate, therefore, to consider in a summary form the main evidence upon which the Crown relies in support of this submission.

Evidence of Marie Jane Clarke

69 Ms Marie Clarke gave evidence that she was living at 7 Wayland Avenue as at 1 October 1994 with the persons to whom we have already made reference. She had resided there for about nine months and Paul had been living there for about eight weeks, having been released from gaol on 24 August 1994. Prior to being released, he had been coming home at weekends on work release. The appellant had been living at the house for only a few weeks, having been released from gaol after serving a lengthy sentence.

70 Ms Clarke was about eight months pregnant as a result of her relationship with Paul as at 1 October 1994.

71 As to the events of 1 October 1994, Ms Clarke deposed that she was awoken about 9 am by the appellant who had previously taken (without her knowledge) the keys to her car. He had brought the car back to the house about 8 am in a damaged condition, and this caused a confrontation between them.

72 Between about 11 am and noon she saw two men in the backyard whom she did not recognise. They were “maybe Lebanese, Turkish, Maltese of that nationality”. The appellant and Paul were speaking with the two men (T105.55; 106.50).

73 Shortly thereafter Paul came into the house and informed Marie that he was going off and would be back in a couple of hours.

74 Marie then saw the appellant and Paul leaving the house with the two men to whom she had referred in a white van. Paul was in the driver’s seat and the appellant was sitting in the passenger seat. The witness assumed that the two other men had entered the rear of the van, because she remembers the back sliding door opening (T107).

75 At about 4 pm Marie was in the backyard when the appellant arrived. He asked her to come inside the house, saying he had something to tell her. She said to him “Just tell me what’s happened Earl”. After telling her to sit down which she refused to do, the appellant said, “There has been an accident, Ned has been shot dead”.

76 Marie asked him “Why didn’t you bring him home?”. The appellant replied, “I tried to but he was too heavy”. The appellant then said, “I went to shoot and I accidentally got Ned, so I put a few through the other fellow” (T109).

77 Marie continued her evidence as follows:

“Oh he said something like, there had been a noise down the corridor so he had left Ned to tie the old man up and he has gone down to investigate the noise and there was a cleaner type man there and he has brought him back to the office and he has come back he and the owner were having a big struggle and Paul has come around and said, ‘Shoot him, shoot him, and Earl shot’ – I am not sure if he said it missed the other man or if he said that it went through, the bullet went through the other man into Paul.”

78 Marie said that during this conversation the appellant “appeared to be as quite agitated, quite paranoid” (T110).

79 Michael Heatley had been present during the conversation which occurred in the lounge room (T110).

80 The witness said that Michael was not “handling it well”; so she thought it best to get Michael over to his sister’s for support. This was a reference to Christine’s apartment at Bondi.

81 The appellant asked the witness to give him all the money in the house. After emptying the children’s money boxes there was about twenty to thirty dollars in change available, which she gave to him. (T110-111)

82 Prior to leaving the home Marie said to the appellant, “The police are going to come around and see what is going on. What do I do?”. The appellant replied, “Just say Michael and him were out all day and that I got a phone call around four o’clock saying – a tip-off type of thing, saying that Ned had been injured” (T112).

83 The appellant then left in Marie’s car, taking Michael with him to the Bondi apartment (T113).

84 About 1 am on the following morning, Sunday 2 October, the appellant returned. Marie was still in the lounge room, too nervous to sleep. The appellant told her that he had returned to get his car and go fishing. She observed the appellant arranging his fishing gear and putting it in the boot of his car. Before he left in the car the witness saw him take used tissues out of Marie’s car and throw them into a bin. This visit occupied about fifteen or twenty minutes (T114-115).

85 About 5 am to 6 am that morning, police officers arrived at the house (T115).

86 By this time, Michael had returned to the house and Marie, Michael and Melissa were taken in police cars to Flemington Police Station.

87 Marie stated that, when interviewed by the police on 2 October, she gave a false statement. She made no reference to the alleged admissions by the appellant. She said that on 1 October the appellant had gone out, and that she had received a phone call at about 4 pm to say that something had happened to him (T116).

88 Marie said that she had seen the appellant virtually every day thereafter until his arrest on 6 October, but the only occasion when she and the appellant had again spoken about the incident, was when the appellant apologised to her because she had lost her husband and the children had lost their dad. She said that she did not want to discuss the matter with the appellant. At one stage she told the appellant that he was looking very paranoid but he replied “Oh, they will just put it down to the grief of losing my brother” (T118).

89 On one occasion prior to the appellant’s arrest, Marie informed the appellant that she would like to go out and see Tony (Grub) who was in gaol and tell him what has happened. The appellant replied that he would come out with her. He said:

“I want to come out and see him too and let him know it was an accident.“ (T119)

90 Shortly after the appellant’s arrest Marie visited him in gaol. She told him that she had now told the police the truth. The witness was asked whether there was any reference by the appellant to a solicitor. She replied:

“Yes, he told me to go – he would ring me that night to go and see his solicitor and tell them that I wanted to draw back or pull back my statements.” (T121-122)

91 Marie was then asked, “Did he say anything about Paul’s children?”. She said that the appellant remarked, “That is what they were doing, seeing his solicitor and they were in the process of drawing back or pulling back their statements and that is the best thing I could do” (T122).

92 (By this stage the children had made statements to the police implicating the appellant.)

93 In chief the witness identified the knife that had been taken from the back of the van located near the factory (Exhibit O). She identified it as having come from her kitchen. She had last seen it a few days before 1 October (T127).

94 Ms Clarke’s cross-examination extended over 100 pages of transcript. The majority of the cross-examination was directed to matters of credit associated with her prior criminal record, past addiction to heroin and various nervous breakdowns which had required psychiatric treatment. However, she dealt resolutely with all the persistent challenges to the veracity of her evidence and made no concessions as to the accuracy of her account of the alleged admissions which the appellant had made to her.

Evidence of Karyn Heatley

95 In September and October 1994 Karyn Heatley was residing with Roger Bissett in their home at Lethbridge Park.

96 She deposed (after refreshing her memory from her statement without objection) that on the afternoon of 1 October outside 7 Wayland Avenue, Lidcombe, she had a conversation in the presence of Roger Bissett, the appellant and Michael. Michael told her that Paul had been shot.

97 The appellant responded:

“I shot him, he bumped the gun, it went straight through your father’s heart.”
“We tied this bloke up, I was watching him, the next thing I looked up and this cunt had your father around the throat.”

98 Karyn deposed that as the appellant said this, he placed his hands around his throat. The appellant then said:

“Dad said, very hoarsely, ‘Shoot him, shoot him’, so I shot and as I shot the bloke who had hold of him, turned and it went straight through your father’s heart. … The bloke lunged at him like a football player and that, knocked the gun up and that’s how your Dad got shot.
But don’t worry, I shot the cunt in the head, I shot two of them in the head and the bloke that lunged at me, I kicked him in the face because he laid there crying like a dog, I put four bullets into his head.” (T383-384)

99 Karyn further deposed that the group travelled to the apartment at Bondi and there, after the appellant was asked by Christine to describe what happened, the appellant said that Paul had the man in a headlock. He had shot him after Paul had asked him to. He had said that they had been looking for a balaclava but Paul couldn’t find one.

100 Because of its importance we set out the following passage from Karyn’s evidence in chief. At this stage the witness by leave (and still without objection) was referring to the written statement that she had made to the police:

“Q. Do you see par 8?
A. Yes.
Q. You told the police what had occurred after the accused and Michael had arrived at the Bondi flat, is that right?
A. Yes.
Q. Christine said something?
A. Yes, Christine said, ‘What happened?’ And Earl said, “Dad had the man in a headlock. Dad said to me to shoot him. I shot him the bullet passed through Dad’s biceps and straight through the man’s head and straight through your father. There was a lot more conversation and Earl gibbered on for quite some time, about 20 minutes or more. I cannot remember the exact words used by Earl, but he said words similar to, ‘Right, it’s like this, we’re looking for a balaclava, trying to buy a balaclava, do you think Neddy could find a balaclava, we were driving around everywhere.’ I interrupted and said, ‘Earl, it’s not a book, I don’t want to know all this shit. I just want to know about the shot.’ Earl said, ‘Right, I’ve had the gun, we’ve gone in, tied a bloke up. I said, “No, Ned, do it this way”, and tied his arms behind his back, put duct tape across his eyes and I’m covering him. Ned’s gone out the back.’ I interrupted him again ---
Q. You interrupted him and
A. And said, ‘you had to think you were a cowboy. I won’t say it again, it’s not a fucking book, just get to the point.’ Earl goes, ‘Right, I’ve looked around and this cunt has got Neddy around the throat. Neddy’s gone shoot him, so I shot him, he’s moved and the bullet’s hit your father. As I went to fire the gun this joker on the ground has tackled me’. I can’t remember the exact words he used next but he said something like, ‘That’s when I pumped bullets into their heads and kicked that cunt in the face.’
At some stage during this conversation Earl said, ‘I was holding your Dad, he turned grey in my arms and he said, “piss off”. Your Dad was alive when I left.’ During this conversation Earl sat at the dining table on a velour type of fabric chair. He was wearing a light coloured cotton shirt and today, just thinking back I cannot remember seeing any blood on his shirt and if his story was that he held my Dad in his arms, surely there would have been some blood on his shirt. He was also wearing grey blue flannel slacks. He had a navy blue pair of runners, made of nylon and suede. I do remember that Earl said, ‘See the blood, that’s where I kicked the cunt in the face.’ When he said this he pointed to his runners and I could see what appeared to be blood on the instep of one of his runners. I only glanced at this because I don’t like the sight of blood as it makes me sick.” (T384-385)

101 Karyn’s evidence continued:

“CROWN PROSECUTOR: Q. Do you see [paragraph 9 about one third of the page from the bottom, ‘On the news they stated’, do you see that?
A. Yes. ‘On the news they stated two people were dead from head wounds, one man was in hospital with a wound to his left biceps. I asked Earl, “Was Dad a head shot”’, Earl replied, “No.” I said, “Did you shoot anyone else in the arm?” Earl said, “Well I’m not sure.” Then he said, “No.” I said, “So that could be Dad in hospital”. He said, “Yes.” And something else but I can’t remember exactly what that was but it may have been “I hope so”. After watching the news and of what Earl had told all of us I honestly believe there was some hope that my Dad was still alive. Christine and I then went to the phone box behind her flat in Edwards St and there Christine rang Hornsby Hospital and asked -”
Q. There was a conversation about whether your father was in hospital, whether he was a survivor from the shooting?
A. Yes.
Q. Did you go off to the flat after the phone call?
A. Yes.
What happened after that?
A. We went to the hospital.” (T386)

102 And further:

“Q. Do you see paragraph 11?
A. ‘When we got back to the flat we said to everyone “let’s go to the hospital”. Earl then said, “I need a shower and a change of clothes”. I then said, “Stuff that Earl we haven’t got time”. But Earl insisted, Earl said, “I need something to get rid of the powder burns”. So he took the cleaning agents from the kitchen to scrub his arms, one was the new Pine-O-Clean and the other was the pump spray Jiff. He took them into the bathroom and had his shower. He was in the shower for about fifteen minutes and when he finished he said, “I scrubbed my whole body”. I could see that his arm was almost red raw. When he said this he was already dressed in a water melon coloured T shirt with a logo that read, “One Eyed Jacks Worm Farm Slimy Wheat Eat”. This T shirt I gave him for Christmas last year and over the top of that he wore a red check flannelette shirt. His pants were grey slacks and this clothing that he put on he brought up with him when he arrived. He then asked, “Chrissie have you got some skin lotion?” I said, “There’s Nivea in there”. At this time he was out of the bathroom and standing in the lounge room. I can’t remember who got him the Nivea but once he got it he rubbed it over his hands and arms and on his face and all through his hair.
(12) He then asked, “I need some bags to put my clothes in?” Someone got him white plastic shopping bags, into one of the bags went the shoes, into the other bags went the clothes he was wearing when he arrived that is mentioned above and pair of yellow dish washing gloves. Earl asked, “Can I have some more bags?” I went and got him two more bags and gave them to him and he put one each over the other bags. I can’t remember what happened to the clothes, as I can only remember them being on the kitchen table after I had given Earl the extra bags. All of us then left for the hospital, this being Earl, Michael, Christine, Maher, Roger and myself’.” (T387)

103 The group then went to the hospital and having made some enquiries they returned to the apartment at Bondi.

104 Karyn deposed that after they returned to the apartment, she had the following conversation with the appellant:

“A. Yes. (paragraph 15) I asked Earl, ‘Where did you leave Dad’. He replied, ‘Outside’. I said, ‘Was Dad the only one outside?’ Earl said, ‘Yes’. I was then convinced that it was my father alive in Hornsby Hospital. Earl decided to clean the car out, he told us, there was brains (sic) all through it.’ By this stage Earl was extremely paranoid. He took the dirty towel from the bathroom floor to clean the car out with, Michael, Roger, Maher and myself went downstairs with him to the carport under the unit in car space number 13. However Roger and Maher went back up. Michael and I stayed there. Anyway there was a conversation about microphones and policeman looking at him?
A. Yes, as I said before, I don’t remember anything about microphones but I do remember that someone looked out the window and Earl made a comment about there being police or something like that because there are just all flats everywhere.

Q. Did you see the accused Earl Heatley clean the car with a towel?
A. Yes, I saw him wipe over the door with a towel.
Q. Did you say something to him about fishing?
A. Yes, I suggested that maybe he should go fishing.
Q. Do you remember what you said to him, see in your statement what you are reported as saying about halfway down the page?
A. Earl then got in the driver’s seat and proceeded to clean the car with a towel.
Q. Do you see about halfway down page 7?
A. ‘Earl, I have an idea, you should go fishing to calm down and plus the police may come here so’ll (sic) you be gone’. He said, ‘Yeah, I’ll do that, it’s a good night to go fishing’. Maher then came back downstairs and I asked Maher, ‘Do you have any fishing gear?’ Maher said, “yes”. I then said, “Good because Earl is going to go fishing’. Earl then asked Maher, “Where can I buy some bait from?’ Michael said, ‘Try a servo’. Earl then got into the back seat of the car and started cleaning around there. It was getting late so Roger and I left understanding that Earl was to go fishing’.
Q. Why did you suggest to him to go fishing, do you remember?
A. Well, I just would have wanted him gone from us.” (T389)

105 Karyn was also cross-examined at length. Her cross-examination extending for some 65 pages.

106 Karyn conceded in cross-examination that at the first trial (in which the jury was discharged) she had falsely stated before the jury that the statements which she made to the police implicating the appellant were false. When asked why she had lied in the earlier trial, the witness replied:

“I can’t remember the points of conversation. He [meaning the appellant] denied telling them; Roger said he didn’t hear a conversation; Christine won’t talk about it and Michael said he didn’t hear a confession. When I went to see him [referring to the appellant] he said, ‘I didn’t say anything like that to you’.” (T398)

107 Purely for the sake of completion, we refer briefly to the evidence of Roger Bissett, Michael Heatley and Christine Heatley. As we have already made clear, the evidence of these witnesses is to be disregarded for the purpose of ground 11.

Evidence of Roger Bissett

108 In evidence in chief Roger Bissett did not give any particularly significant evidence in relation to the discussions which took place after he and Karyn arrived at Lidcombe at about 4.30 pm on 1 October.

109 He gave evidence that he and Karyn returned to the Bondi apartment at about 5.30 to 6 pm (T313). At the apartment Karyn had spoken with Christine who had become extremely upset (T314). He had seen Michael and the appellant enter the flat about thirty to forty minutes after he and Karyn arrived. There was an ABC news bulletin in which there was a report about a bungled robbery which was shown after the appellant had arrived. He said that after the appellant and Michael arrived there was “just madness”. People began asking questions and shouting questions as to what had happened. There was “complete mayhem”. He said that he could not remember the full conversations that occurred, but he thought the appellant had said something about Neddy being held by the neck and something about a pistol (T314). He thought that the appellant had said “I had this 9 mm pistol” and something about a “hair trigger” (T315).

110 Having given this evidence the witness claimed that the remainder of his statement to the police was incorrect. His Honour granted the Crown leave to cross-examine him and thereafter evidence was led from him.

111 The witness claimed that he had been recounting in his statement what Karyn had told him and had only heard snippets of the conversation. He said that when he was talking the appellant had appeared distressed. Further, that after the news report that one of the people involved in the incident had been shot in the arm, the group decided to go and check that out at the hospital (T323).

112 The witness said that he remembered the appellant having a shower and scrubbing himself and rubbing on moisturiser. Also he recalls the appellant packing his dirty clothes in shopping bags and placing them in the back of the car before they left to go to the hospital (T325).

113 The witness deposed that at the hospital, the group received very vague information as to who was there. He thought they had been told that it was not Paul Heatley and they were still unsure. After they had gone back to Bondi, it had been decided that Karyn and he would try and determine the next day whether Paul Heatley was dead or not (T326).

114 At the apartment, the witness deposed that he remembered the appellant saying “You guys will think I’m a bastard”, or words to that effect. The witness also said something like “You’ll resent me for the rest of your lives” (T327).

115 The witness and Karen returned to Lethbridge Park, but before doing so, the witness deposed that he had seen the appellant cleaning the inside of the Falcon motor vehicle. He was removing rubbish and cleaning the dashboard, the steering wheel and the seats with some substance. He had been generally cleaning the vehicle (T327).

Evidence of Michael Heatley

116 In evidence in chief Michael Heatley deposed that he went to Wayland Avenue on 1 October. During the course of the morning he had seen four or five men talking among themselves and with his father. The appellant had not spoken with them other than perhaps to say “Hi”. He said that he did not see the men leave the house (T464, 467).

117 Thereafter he and the appellant had gone out and were away for about twenty minutes. They had placed bets at the TAB. When they returned, he saw a white van parked in the driveway.

118 Thereafter the witness was referred to his statement and he asserted that what he had said in that statement (which contained significant evidence implicating the appellant) was untrue or, alternatively, he was relating information that had been supplied to him by others apart from the appellant. He also said that he was fearful of the police.

119 During cross-examination by the Crown Prosecutor (by leave) the witness did assert that after he and the appellant returned to Wayland Avenue and noticed the van they changed the oil and water and “Earl might have gone for a drive to show my father the gears on the car and then that’s when my father came back. He asked me would I go for a drive with Earl. This was close to twelve o’clock (T475).

Evidence of Christine Heatley

120 Christine Heatley’s evidence may be completely disregarded. She denied any recollection of events on or after 1 October 1994 in relation to the armed robbery. She also denied any recollection of having made a statement to police officers and the contents thereof.

121 In the event that there is a new trial, it will be solely a matter for the Crown Prosecutor whether he or she calls all or any of the last mentioned three witnesses. We would not presume to predict what attitude the trial judge would take to any application the Crown might make to cross-examine any of these persons if they were called. These are matters which have no relevance to the resolution of ground 11, because as we have indicated, we are concerned with the strength of the Crown case without the evidence of these persons. It is not necessary, therefore, to deal with submissions by counsel regarding the probative value (or lack of it) of any evidence that these three persons might give in a fresh trial.

122 For the purposes of ground 11, the Crown also relies upon the following evidence.

Statements made by the appellant to police officers.

123 Detective Sergeant Jacob gave evidence that he was the officer in charge of the investigation. He had available to him on the evening of 6 October 1994, statements from Michael, Karyn and Roger and Maher Abadlla, all dated 6 October, which implicated the appellant in the murder of Paul.

124 Detective Jacob and other police officers interviewed the appellant at the Lidcombe Police Station on the evening of 6 October.

125 When first asked by the witness whether he knew anything about the death of Paul, the appellant replied that he knew nothing about it. He was then handed, and asked to read each of the abovementioned statements.

126 Thereafter, Detective Jacob gave the following evidence:

“About 10.47 pm Det Richardson and I returned to the interview room where I saw the accused slowly rocking in his chair. I said, ‘Have you read those documents?’ The accused slowly nodded his head and he said, ‘Look, you don’t understand. You look at the evidence (the accused pointed to the statements). I’m going to gaol for the rest of my life, I’ll die there. It doesn’t matter whether it was an accident or not, I know I’ll be going to gaol for the rest of my life’.” (T763)

127 The appellant then declined to answer any further questions until he had spoken to a solicitor. A solicitor could not be contacted.

128 However, prior to the termination of the interview the appellant said:

“I also told you that I didn’t shoot Paul, I just didn’t shoot anybody.” (T764)

129 Detective Sergeant Dowding gave evidence, relevantly, to the following effect:

“About 10.45 am on 7 October 1994 with Detective Senior Sergeant Wright and Det Constable King I went to the cell complex of the Burwood Local Court. I had a conversation with a corrective services officer. I was then directed to an interview room in the complex.
I then saw the accused, Earl Heatley, enter the interview room. Detective King said, ‘Giddaymate, I’m Detective King, this is Detective Sergeant Wright and Dowding. We’re the investigating (sic) the matter from last night. Have you seen your solicitors?’ The accused said, ‘Yes, look if you had got me a solicitor last night I would have sung and told you the lot, if I had a solicitor.’
I said to the accused, ‘It wasn’t for the want of trying. We tried for half an hour or so, no one would come out’. The accused said, ‘I’m just telling you I didn’t shoot at me brother’.” (T855)

Evidence of telephone intercepts.

130 The Crown also relies upon the following evidence of telephone intercepts.

131 On 10 October 1994 a telephone call from the appellant (then in the Remand Centre) to Marie was intercepted.

132 The content of that telephone message contains, the Crown contends, significant (though somewhat veiled) admissions by the appellant. The transcript was tendered at the trial and became Exhibit BB.

133 Because of its importance we will quote the exhibit in full:

“LEGEND:
V1: = Maree Clark
V2: = Female Long Bay Gaol
V3: = Earl Heatley
V4: = Male

V1: Hello?
V2: Hello can I speak to Maree please/
V1: Who’s speaking?
V2: It’s the Remand Centre, I’ve got Earl on the phone to speak to ..
V1: Okay yeah, I’ll speak to him.
V2: Okay
V1: Thank you.
V2: Here you go mate.
V1: (Speaking to person in background – it’s Earl.)
V3: Hello?
V1: Hello, how are ya?
V3: Ah well I’m in here.
V1: Yeah I know mate, I know.
V3: Ah but the thing that, the thing that, the thing that really upset me is that the kids, the kid thought I was gonna knock him.
V1: Yeah. I think what’s happened Earl is that their heads have been poisoned.
V3: I know, I know.
V1: Do you know what I mean?
V3: Yeah yeah I’m just hopin’ ..
V1: And their, their heads have been poisoned and they’re just carryin’ it on. Does that make sense?
V3: They’re keeping’ goin’ though .
V1: Ya there?
V3: He?
V1: Are ya there, I thought – it’s just stopped.
V3: No no they keepin’ goin’, are they?
V1: Yeah but ..
V3: That ..
V1: well the kids are.
V3: He?
V1: The kids are.
V3: They’re not gonna back off?
V1: No I don’t think so mate. Uh mm.
V3: Aren’t they?
V1: No I don’t think so at all, especially Karen, especially Karen.
V3: Well you can tell ‘em that their heads have been, have been poisoned.
V1: No yeah, yeah I know yeah but I can’t tell ‘em any different Earl, they just come here and say this, that, you know, you know what they’re like, especially towards me.
V3: Yeah yeah.
V1: You know what they’re like. But Granny-chick’s over.
V3: Yeah.
V1: And ah, Prof’s comin’ tomorrow mornin’.
V3: Is she, he bringin’ Granny-chick out here?
V1: Yeah yeah yeah, now what they’re gonna do is I just pick my car up this afternoon.
V3: Yeah.
V1: Because it’s ready and so is your car.
V3: Yeah.
V1: And I was gonna go and get that after the funeral tomorrow.
V3: Yeah.
V1: But um, Granny-chick wants – said could I um, let her get it. Like I mean, I go and get it.
V3: Yeah.
V1: ‘Cause I’m the one – have to get it out.
V3: Yeah.
V1: I’ll go and get it and um, her and Prof drive straight over to you.
V3: Yeah righto well Granny chick ..
V1: then after you they’ll go and see um Tony.
V3: Yeah.
V1: And they want – and she wanted to call into Roger’s as well. So that’s alright for them to take that Earl?
V3: Yeah yeah ‘course it is. (Can’t decipher)
V1: But can I tell you one thing?
V3: What?
V1: That it’s your car okay and it’s your decision and they’re gonna ask you what you want done with it.
V3: Yeah.
V1: Don’t let the kids get it.
V3: No I won’t.
V1: Earl, please.
V3: Yeah well I won’t.
V1: I’m not sayin’ that, you I don’t, you know. I don’t, you, it it ..
V3: But they’re, they’re dead set filthy on me then?
V1: Yeah mate I’m sorry to say, yeah.
V3: Yeah.
V1: I’m sorry to say.
V3: Yeah well ..
V1: They are mate.
V3: .. they’ve got, yeah well they’ve got right in their ears the, the coppers.
V3: .. I can’t tell, I can’t, I can’t prove any different to them.
V1: I know, (can’t decipher) no. Is there anything I can do for ya?
V3: No, nothing.
V1: Has – your solicitor that came and saw you today?
V3: Yeah they’re comin’ back tomorrow.
V1: Well one of um, Ned’s friends ..
V3: Yeah.
V1: .. and that, he had that solicitor and he put him on to us. He rang him for us.
V3: Yeah.
V1: He rang for us and um, to see if she could go and see ya and what not.
V3: Yeah.
V1: Even though she’s a payin solicitor.
V3: Yeah.
V1: To see if she could just come and see ya and maybe take it under legal aid or, or something like that. But um, she just rang me and said that she’d made an application to the, oh governor, judge or something or something that ya can see if ya can go to the funeral tomorrow.
V3: Yeah I did.
V1: Escorted but she says she didn’t really like ..
V3: No, I don’t like me chances either. Alright then, you ya, you see if you can, if you can talk a bit of sense into the kids and that ..
V1: Oh God I’m tryin’ mate ..
V3: .. and ya, no I know, no ..
V1: ..I really ..
V3: .. no, no ..
V1: .. and Earl.
V3: .. ah get, get Jap [ Jap is the nickname of Michael Stevens] to have a yarn with ‘em if he can.
V1: Oh he’s tried but he’s the worst person in the world at the moment.
V3: Well can someone go out and see Grub and get, or tomorrow, see Grub and explain to Grub ..
V1: Yes yes.
V3: .. explain to Grub ..
V1: Yes.
V3: .. that what, what they’ve said is ..
V1: Yeah.
V3: .. Neddy was found forty to fifty metres away.
V1: Uh mm.
V3: From where it happened and just to say to Grub (stutters) how do you (sic) I never carried him there.
V1: Yeah yeah well the coppers told me it was nerves that got him there.
V3: Who?
V1: The, the police said to me that it was nerves ..
V3: Yeah.
V1: .. The last bits of his nerves.
V3: Yeah.
V1: That got him there because he was physically – all his main organs were gone ..
V3: (Can’t decipher)
V1: .. they didn’t get him that far, it was his nerves.
V3: Yeah well (stutters) and that’s probably right but ah ..
V1: Yeah and, and Earl um, I don’t, you know, like I don’t wanna say too much and that but, no matter what, you know, you know how I feel.
V3: Yeah.
V1: Do you understand what I’m tryin’ ..
V3: Yeah ..
V1: .. to say?
V3: .. yeah yeah.
V1: No matter what ..
V3: Yeah.
V1: .. no matter what ..
V3: Yeah yeah well I, as I said, I can’t tell ‘em anything.
V1: No.
V3: I can’t tell ‘em anything and I, I don’t know why the kids have gone like they have.
V1: Yeah. You wanna have a word to Mick mate?
V3: Yeah.
V1: Uh mm.
V3: Stick him on.
V1: Alright well listen um ..
V3: Maybe Grub could talk ..
V1: .. I’ll get that money out Wednesday.
V3: .. maybe, maybe if Jap talks to Grub ..
V1: Yes.
V3: .. tomorrow and you talk to Grub tomorrow maybe ..
V1: Yes.
V3: .. he can talk to them.
V1: Yeah.
V3: Like it’ll be eighteen months before, by the looks of it, before I even get to trial.
V1: Yeah I’m so sorry Earl I’m ..
V3: It can’t be ..
V1: .. so ..
V3: .. helped ..
V1: .. sorry.
V3: .. I’ll , I’ll sit here I, I’m safe here.
V1: Yeah yeah ..
V3: Because ..
V1: .. that’s right.
V3: .. the, the cars were followin’ me and it could’ve been anyone.
V1: Yeah but it was the police following’ you?
V3: It, it was but it could’ve been ..
V1: Oh it was ..
V3: .. anyone.
V1: Yeah I know, I know.
V3: Yeah you can tell the kids that ..
V1: .. but ..
V3: .. too, it could’ve been anyone.
V1: Yeah but no (can’t decipher). But um, yeah listen what I’ll do is get that money out Wednesday and I’ll put half of it into your property ..
V3: Yeah.
V1: .. and then I’ll leave the other half for the next week.
V3: Yeah I, I ..
V1: Or you want some sent ..
V3: .. I (stutters) I need ah ..
V1: Yeah.
V3: .. well they’re comin’ out tomorrow are they ..
V1: Yeah ..
V3:1.. Granny-chick and ..
V1: .. yes they are.
V3: Can they come out ah oh, oh it doesn’t matter when they come out. Okay?
V1: After the funeral they’re coming out.
V3: Yeah straight after the funeral?
V1: Yes.
V3: (Can’t decipher)
V1: Well as soon, well as soon as they’ve finished, the funeral’s finished, I’ll go to Flemington, pick up the car and they can go their way, straight to you. Although what I’m gonna do is ring the detectives in the morning and see if Prof can pick it up so I don’t have to go there at all.
V3: Okay.
V1: Do you know what I mean?
V3: (Speaking to person in background – What are the ..) Hang on a minute mate.
V1: Alright.
V3: (Speaking to person in background – What are the visits here (can’t decipher) closed box or what?
V4: (Speaking from background – Oh out in the open.
V3: Everybody?)
V4: Yeah. (Can’t decipher))
V3: Yeah out in the open the visits are so I’ll be able to talk to Granny-chick.
V1: Okay that’s, that’s good, that’s yeah, that’s good. I know yeah, she’d – yeah. Yeah um, yeah so what I’ll do is I’ll get that money put in on Wednesday afternoon okay?
V3: Okay then Maree.
V1: Just so you can get you know, get yourself a couple of things Earl.
V3: Alright then ..
V1: You know I don’t know if it makes any difference mate.
V3: Well there’s a – if it’s a big (can’t decipher) waitin for visits here, I’ll talk to Jap when I can. Tell him if he can, he can explain to the kids that, there was no you know ..
V1: Yeah, he’s been trying, Earl he has honestly been trying. It’s like brick – talking to a brick wall.
V3: Alright then.
V1: But we had – you know, he really has been. He’s been getting’ really bad flak over it and that. They hate him, they’re callin’ him this, that ..
V3: Yeah alright then I’ll
V1: But he – okay?
V3: Alright I’ll, I’ll see ya later.
V1: You’ll ring me hey?
V3: Alright I will.
V1: Make sure you do okay?

V3: I will Maree.
V1: I know, you know, there’s probably nothing but is there anything I can do?
V3: No nothing at all. Nothing at all. Oh you, I’m, I’m sorta, I’ve gotta wait until the police put all their evidence in and, and the kids are the only one who can sink me.
V1: Yeah.
V3: The kids can send me away for ever.
V1: Yeah.
V3: But that’s entirely up to them.
V1: Yeah yeah.
V3: Okay then?
V1: Okay mate, take care, my thought – Earl, I’m thinkin’ of you okay?
V3: Okay.
V1: Bye bye mate.
V3: Ta ta.
V1: Ta ta. (Speaking to person in background – he’s hung up. (Hangs up telephone)”

[The emphasis is ours.]

134 The above transcript should be read as a whole but the passages emphasised are of particular significance.

Telephone intercept involving the appellant and Marie Clarke and Michael Stevens, 7 October 1994 – Exhibit BF.

135 The legend to this transcript states that V1 is Marie Clarke and V3 is the appellant. At a later stage Michael Stevens came on to the telephone at Marie Clarke’s end. According to the legend he is V4.

136 We note the following portion of the conversation between the appellant and Marie Clarke at p 8 of the Exhibit:

“V1: And um, I know – I don’t know what to say, what to ..
V3: Oh yeah nothing you can say or do Maree. Just try and explain to them kids that what they’ve been told’s a lot of shit. I never, I never, ever contemplated killing them for God sake. ” [The emphasis is ours.]

137 We now quote in full the conversation between the appellant and Michael Stevens. According to the Crown case, the appellant is endeavouring in this conversation and the following conversation to induce Stevens to take steps to encourage the family members to change their statements.

“V4: Hey (sounds like) Early bird.
V3: Hey mate how are ya?
V4: Well it had to come mate.
V3: Yeah they were lookin’ for you last night. Did they find ya?
V4: Nup.
V3: Oh good. They’re still ..
V4: No.
V3: .. they’re still lookin’ for you I think.
V4: Why?
V3: Oh when the – they might try and hit you with an accessory I dunno after, I dunno.
V4: You’re kiddin’?
V3: No I dunno. I dunno. No but they, they really only got the statement from the kids, that’s about it.
V4: Yeah.
V3: They – ‘cause they’re lookin’ for extras.
V4: Yeah, yeah. Anyhow they got my statement mate and that’s ..
V3: Yeah.
V4: .. all they’re getting’.
V3: Well they’re looking for extras – they know, they know you know, they know, they know I can’t say anything, you know.
V4: Mm.
V3: Because I’m, I’m stuffed if I, I open me mouth, I’m off Jap anyway so ..
V4: Ohh.
V3: .. and I’ll be off straight away then well, they’ll just knock me straight away. ‘Cause they think, if they even thought like, point the finger in their direction they’d off me immediately.
V4: Yeah.
V3: Mm you know that, I know that.
V4: Yeah. How, how you handlin’ it mate?
V4: Yeah where, what are you at the gaol already?
V3: Yeah.
V4: Fuck that was quick Earl.
V3: Yeah.
V3: Yeah I wanna, I desperately need to sleep Mick, I haven’t slept since, I virtually haven’t slept for a week.
V4: Yeah a week. Did they ask you about me Earl?
V3: Yeah they asked you – me where you were and I said I didn’t know.
V4: Yeah.
V3: I don’t think, I think they’re gonna try and, and and crack them. As I said, you’re better off just stickin’ to the truth and and just tell ‘em the truth as far as you know. And ah ..
V4: Yeah I don’t know anything else.
V3: .. Maree’s better off you know, you just tell the truth as you know and, and ..
V4: Yeah.
V3: .. and they ..
V4: (Can’t decipher)
V3: .. Mick, you can’t, you can’t help any – by --
V4: (Can’t decipher)
V3: .. by tryin’ to help me you know.
V4: Yeah.
V3: Okay.
V4: Well put it this way, I wasn’t here all day anyway you know what I mean, so I don’t know what happened anyway.
V3: Yeah exactly.
V4: You know.
V3: Alright then mate ..
V4: I ..
V3: .. I’ll catch ya later.
V4: Okay?
V3: Good to hear from you Mick.
V4: Yeah man, really sorry.
V3: Nah, doesn’t matter. Doesn’t matter ..
V4: Yeah.
V3: I’ll catch ya later.
V4: Okay buddy.
V3: Ta ta.
V4: I’ll, I’ll be down as soon as I possibly can.
V3: Okay.
V4: Okay mate.
V3: Ta ta mate.
V4: Bye bye Earl. (Hangs up telephone)”

Telephone intercept between the appellant and Michael Stevens, 11 October 1994 – Exhibit BH.

138 According to the legend V1 is Michael Stevens and V3 is the appellant.

139 We quote from the latter half of the conversation:

“V3: I’ll see ya tomorrow and that, he said this is an opportunity to sorta you know ..
V1: Yeah.
V3: Yeah ..
V1: Yeah.
V3: .. so it, it gives everyone a bit of a chance.
V1: Yeah. I also spoke to Grub today.
V3: Good oh yeah ..
V1: And I said to him you know no matter what you hear (sounds like) Grubster, no matter what anyone says it was an accident.
V3: And ..
V1: And he said yes I know.
V3: And yeah well he oughta know as I’ve as I’ve been tryin’ to explain to any cunt I’ve carried me other brother in the boot of me car for years because ..
V1: Yeah.
V3: Because I couldn’t get rid of him, Prof couldn’t get rid of him, none of us you know, we were close.
V1: Yeah.
V3: Ahh anyway Jap I’ll ah, I’ll get onto that you know and get all the details ..
V1: Yeah alright.
V3: ..fixed up. And ah I was gunna tell you somethin’ else just tell Marie that (can’t decipher) that the original was the best.
V1: Yeah, yeah.
V3: And ahh, and the lawyers said to me virtually today that really the kids are the most damaging..
V1: Yeah, yeah well leave that one to me Earl.
V3: Alright mate.
V1: Okay.
V3: I dunno.
V1: (Can’t decipher)
V3: I know I know it’s divide and conquer even all the crims out here know it’s divide and ..
V1: I know, I know.
V3: .. conquer.
V1: I know, I know. I’m havin’ trouble with them now you know what I mean but that’s now.
V3: Yeah well I’m not worried ..
V1: But further down the line ..
V3: (Can’t decipher) yeah that’s what I say. Doesn’t matter even if they’re dirty on me you know doesn’t matter.
V1: Yeah.
V3: I, I, I still think, I still think I’m a I’m a chance even without them.
V1: Yeah.
V3: Even with them against me I still think I’m a chance.
V1: Yeah, so do I.
V3: Okay mate.
V1: Okay mate.
V3: ‘Cause even the lawyer said it’s pretty thin.
V1: Yeah, yeah.
V3: Alright then, now make sure you’re, you’re there Jap whatever you ..
V1: Yeah mate I’ll be there.
V3: Okey dokey, I’ll see ya later.
V1: Okay Earl.
V3: Ta ta.
V1: Be good mate.
V3: I will.
V1: Okay mate see ya tomorrow.
V3: Ta ta.
V1: By bye. (Hangs up telephone)”
[The emphasis is ours.]

Some aspects of the circumstantial evidence specifically relied on by the Crown.

140 Mr Scott said that at the factory Mr Thompson had grabbed the intruder, who was obviously Paul Heatley, by the neck and struggled with him, whereupon Paul Heatley had shouted to the other intruder “Shoot him” more than once and Karyn Heatley said that the appellant had said that the bloke had Paul by the throat and that Paul had said “Shoot him, shoot him” (T110).

141 Further, Marie Clarke testified to the appellant saying to her that at the scene Paul Heatley had said “Shoot him, shoot him”.

142 White adhesive tape was located at the scene of the crime with what appeared to be grey coloured hair (Mr Thompson had grey hair) stuck to the tape (T63) (T69) and a roll of such tape was found in the pocket of Paul Heatley (T69). The appellant was seen by Marie Clarke departing with Paul Heatley, who obviously had a roll of white adhesive tape. Karyn Heatley said that the appellant had stated at the Bondi apartment that they had “tied a bloke up ... put duct tape across his eyes” (T384).

143 Black plastic tie clips were found in the factory office (T69) and also at 7 Wayland Avenue when police executed the second search warrant (T57). Such ties were also found in the front of Paul Heatley’s jeans (T69).

144 Peter Elliott, an eyewitness to the aftermath of the murders, deposed that he had seen the intruder lying on the ground move and raise his head after the other person had left (T44). This means that Paul Heatley was alive when the other person had left. Karyn said that the appellant had told her that Paul was alive when he left him at the factory (T385).

145 At the Bondi apartment, the appellant had given himself a most thorough shower. Karyn said that the appellant mentioned the need “to get rid of powder burns”. He then had a shower. Afterwards the appellant was seen placing his clothes and shoes in plastic bags (T387).

146 The appellant was seen cleaning out the car in which he had returned to the house at Lidcombe at about 4 pm (T115).

147 The visit to Hornsby hospital by the family group including the appellant, being anxious as to the fate of Paul Heatley is relevant evidence. At that stage, the Crown contends, the group would not have known of Paul’s fate, unless they had been advised by the appellant of his participation in the events at the factory.

148 The Crown contends that the statements made by the appellant to police indicate knowledge by the appellant of the killings and of a concern for it to be understood that the shooting of Paul was an accident.

149 The statements on the listening device recordings indicate, the Crown contends, a desire by the appellant to indicate to Paul’s family that the shootings were not premeditated but unintentional.

150 Karyn deposed that the appellant told her that he kicked Mr Thompson in the face because he “laid there crying like a dog” (T384). Dr Ellis gave evidence that he located an abrasion about 3.8 cms long and 2.8 cms wide on top of Mr Thompson’s scalp, which could have been caused by a kick (T203-204). There was also another abrasion on the left cheek (T203).

Sufficiency of the evidence.

151 In the events which have happened, the first question for this Court is whether, leaving aside the impugned evidence, there was sufficient evidence upon which the jury could have been satisfied of the appellant’s guilt beyond reasonable doubt. In other words, would a reasonable jury necessarily have had a reasonable doubt about the appellant’s guilt based upon the available evidence independent of the impugned evidence.

152 If this issue is resolved in favour of the appellant, then no question of a new trial arises.

153 If, on the other hand, the question is resolved in favour of the Crown then the question for the Court is whether, having regard to all the circumstances, the miscarriage of justice associated with the quashing of the convictions, can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make: see s 8 Criminal Appeal Act 1912, as amended.

154 We turn then to what was described as the unsafe and unsatisfactory ground. In R v Benecke [1999] NSWCCA 163, Barr J stated (with the concurrence of Abadee and Ireland JJ) at par 26:

“Although it has been convenient in times past to use a formulation which asserts that a conviction is ‘unsafe and unsatisfactory’ that term is imprecise and it is necessary to have regard to the terms of s 6(1) of the Criminal Appeal Act. By s 6(1) the Court in any appeal under s 5(1) against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law, or that on any other ground whatsoever there was a miscarriage of justice.”

155 Benecke has similarities to the instant case. This Court determined in Benecke that the learned trial judge had incorrectly admitted evidence led by the Crown as to the behaviour of a tracker dog.

156 The Court then considered the evidence available to the Crown independently of the rejected tracker dog evidence, and rejected the argument that the verdict was unreasonable or could not be supported having regard to the evidence, or that there was any miscarriage of justice. Thus their Honours quashed the conviction and ordered a new trial.

157 As we have already indicated, in view of the seriousness of the subject offences, it is appropriate to assume in favour of the appellant that Michael Heatley’s long standing psychiatric condition may have rendered his evidence unreliable. Therefore it will not be considered in determining whether the first ground of appeal has been made out. Further, the evidence of Christine Heatley and Roger Bissett should be disregarded in its entirety.

158 With respect to ground of appeal 11, the Court has the benefit of detailed written submissions by senior counsel for the appellant directed to alleged weaknesses in the evidence which the Crown seeks to rely upon to justify an order for a new trial.

159 Particular reliance was placed upon the fact that Marie had been a heroin addict until age twenty-one and was thereafter on a methadone programme to which she became addicted. She has suffered from severe depression since the age of twenty-six and has suffered from five breakdowns, three of which she described as severe. She has been hospitalised at times in psychiatric clinics. The witness was medicated with anti-depressants at the time of giving evidence. The evidence with respect to these matters was amplified in the submissions.

160 Marie had on her own account made a detailed, but untrue statement to the police on 2 October 1994, for the purpose of their investigation into the death of her de facto husband. Albeit, it was argued that statement contained many true details as to personal information.

161 The submission referred in detail to material raised in the lengthy cross-examination of the witness at the trial before McInerney J.

162 There is no doubt that there was copious subjective and objective material upon which Marie Clarke was cross-examined. However, in our assessment, it was open to the jury in the light of other admissible and reliable evidence to accept her version of the relevant facts and the admissions which she alleges the appellant made to her.

163 With regard to the evidence of Karyn Heatley it was submitted that although there was no application under s 38 of the Evidence Act to treat her as an unfavourable witness, and the evidence was given without objection, it was no more than a recitation of what she had said out of court to the police. She endorsed the contents of the statements not because she remembered the facts asserted having occurred, but because she described herself to be a truthful person with no reason to have lied to the police.

164 With regard to this submission, the following passages from Karyn’s cross-examination should be noted. It was put to her:

“Q. No doubt the police were keen to have your signature on something. Did they say they wanted you to sign a new statement?
A. Yes, I had to sign where I wrote.
Q. But basically what you said in your statement of 6 October was true, is that right?
A. Yes.”

165 Shortly thereafter:

“Q. Wait, will you? Is what you are telling the jury today that the accused made those confessions to you, is that right?
A. Yes.
Q. All of them are true?
A. Yes, to my belief they are true.” (T396-397)

166 The admissibility of the evidence given by Karyn is, therefore, not struck down by Lee’s case. In Lee, evidence was admitted at the trial of out of court statements made by a witness which included a report of a confession made by the appellant to that witness. The evidence of these out of court statements was given because the witness gave evidence at the trial denying (or at least not admitting) that she had heard the appellant make the confessional statements. Clearly, therefore, Lee’s case has no relevance to the probative value of Karyn’s evidence of the admissions which she states the appellant made to her.

167 Karyn asserted in evidence that what she was recorded in the statement as having told the police was in fact the truth. In other words that the appellant had in fact confessed to her.

168 In Driscoll v The Queen (1977) 137 CLR 517 at 541, Gibbs J said that a record could be used to refresh the memory of any person who prepared it or supervised its preparation or read it while the facts were fresh in that person’s memory. The relevant principles are discussed in “Cross on Evidence” at pars [17180] and [17200]: see also s 32 of the Sentencing Act, 1995.

169 In our view the evidence given by Karyn Heatley was adduced in an admissible form.

170 As to the eyewitness accounts relied upon by the Crown, most importantly Thomas Bithel, it was argued they do not take the Crown case against the appellant any further than the fact that Paul Heatley and at least another were involved in a criminal activity which resulted in the deaths and wounding. On Mr Bithel’s evidence, it was submitted, Paul Heatley (or whoever was struggling with Mr Thompson) was not shot in the vestibule area in which the witness and Mr Thompson were shot by the masked gunman (an account not inconsistent with the ballistics evidence adduced by the Crown), be that masked gunman Paul Heatley or someone else. Further, the green rubber gloves found on the body of Paul Heatley were not “rubber gloves that the unmasked man had been wearing”, as the Crown alleged, but on Mr Bithel’s evidence, were “like them” (insofar as they were rubber gloves or “washing up” gloves), and his best recollection (stated in evidence to be the account provided on the day to the police) was that both the masked and unmasked offenders had been wearing rubber gloves.

171 These are, of course, illustrations of matters open to be raised by the appellant. However, their cogency is to be assessed in the light of the overall admissible evidence against the appellant.

172 The next point which is understandably made is that the forensic evidence called by the Crown, and supplemented by the defence witness Richard Collins, demonstrated that no bullet wound to either of the deceased men had first gone through the other or any intermediary. Further, the expert evidence did not support there having been any strangulation, throttling, or struggling in the nature of hands around the throat of the deceased, Paul Heatley.

173 Further detailed submissions were made on behalf of the appellant relating to the cogency of the Crown case. These submissions have all been carefully considered and evaluated.

174 Counsel for the appellant also seeks to rely upon the alibi evidence given by the appellant which, it is said, is supported by witnesses called by the Crown. The witnesses to whom reference is made include Wayne Backhouse, security manager of the Totalisator Agency Board of New South Wales and Gregory Fenwick who was at the relevant time the manager of the Lidcombe Hotel which contained a TAB. There was also evidence by Ian Lamont from the Berala TAB.

175 However, giving full weight to these submissions we are not satisfied that, to use the terms of s 6(1) of the Criminal Appeal Act, the verdicts of the jury should be set aside on the ground that they were unreasonable or could not be supported having regard to the evidence or that on any other ground there was a miscarriage of justice. Therefore, the appellant is not entitled to verdicts of acquittal.

176 That being so, the proper administration of justice and the public interest require that there be a new trial on all counts.

177 Accordingly, the orders of the court are:

1. Appeal allowed.
2. Convictions quashed.
3. There be a new trial on all counts.


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