Skillin, C.K. v The Queen
[1989] FCA 744
•15 NOVEMBER 1989
Re: CRAIG KENNETH SKILLIN
And: THE QUEEN
No. ACT G43 of 1989
FED No. 744
Evidence
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Kelly(1), Pincus(1) and Foster(1) JJ.
CATCHWORDS
Evidence - corroboration - robbery committed at time of murder - whether use of stolen item shortly after murder corroborative - what in general constitutes corroboration.
HEARING
CANBERRA
#DATE 15:11:1989
Counsel for the appellant: Mr T. O'Donnell
Solicitors for the appellant: Anthony Gillies of Legal Aid
Office (ACT)
Counsel for the respondent: Mr M. Weinberg Q.C. and Mr K.
Hempenstall
Solicitors for the respondent: Director of Public Prosecution
ORDER
The appeal be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal against a conviction for murder. The grounds of appeal were principally two. Firstly, it was said that the learned trial judge had not given a balanced summing up, but one which was too favourable to the Crown. Secondly, counsel contended that his Honour was in error in suggesting to the jury that a number of pieces of evidence were corrobative of the evidence of the principal Crown witness, one Cadona.
The Crown case was, and indeed it was not contested, that the victim was beaten to death on the night of 20/21 October in the suburb of Lyons, in Canberra. The Crown alleged that the victim was driven to the spot in his own car by the appellant in the company of Cadona. It was alleged that the appellant stopped the car and went into the bushes with the victim, robbed and killed him, and then returned to the car and told Cadona what he had done. It was further alleged that shortly after that the appellant and Cadona went to the residence of one Lowe, where the appellant made a further statement indicative of his guilt.
There was evidence that the victim was robbed. His wallet was found after his death at a considerable distance from the place where he died. It was also admitted that at 1.32 a.m. (after the death) his bank "keycard" was operated at an automatic teller.
There was evidence that the appellant was wearing a particular pair of grey shoes, and some evidence that they had spots of blood on them. In an unsworn statement to the Court, the accused said he did not remember whether or not he wore the particular shoes. There were two further pieces of evidence relating to the shoes which tended to implicate the wearer of them. First, there was evidence that there were prints appearing to have been made by the appellant's shoes, in the victim's car. The prints had the appearance of having been formed by blood. Secondly, there was evidence that there were marks, apparently made by one of the shoes in question, on a shirt taken from the victim's body.
The version of events put forward on behalf of the appellant, in his unsworn statement, was that Cadona had been solely responsible for the murder. The appellant told the Court that Cadona came to the appellant's place -
"... about 11, 11.30 and was upset and had blood on his clothes so I let him have a shower and gave him a clean set of clothing. Then we went to where the body was found. I went to see if Owen was still alive and if he was if I could help him in any way. By the time I got there it was too late. Owen was already dead. I felt for his pulse and it was too late."
He also admitted that he had gone to Lowe's residence to ask for help in disposing of the body.
Mr O'Donnell, who argued the case carefully for the appellant, has suggested that the learned trial judge's summing up could be described as being too favourable to the Crown. Mr O'Donnell suggested that his Honour had tended to undertake the role of advocate for the Crown in some of the expressions he used, and complained that points favourable to the defence case were not sufficiently put to the jury.
Almost all the material before the Court was Crown evidence, apart from the rather short statement made by the appellant and what might have been inferred from the direction the cross-examination on behalf of the appellant took. There was not a great deal the trial judge could have said about what counsel called the "defence case". Nevertheless, as was contended by Mr Weinberg Q.C., who appeared with Mr Hempenstall for the respondent, in truth his Honour dealt in considerable detail with some of the defence attacks upon the Crown case. In particular, there were a number of references to, and quotations from, what the jury might have thought to be the more effective points made in cross-examination of Crown witnesses.
In our opinion, reading the summing up as a whole, his Honour put the Crown case and the defence's answers to it (so far as they could be discerned from the limited material available) in a sufficiently fair and balanced way. One specific criticism made was that there was evidence that Cadona had blood on one of his shoes, but that was not mentioned in the summing up. That evidence was not necessarily inconsistent with Cadona's versions of events, but might have suggested to the jury that his role in the killing was different from that sworn to by him. However, we do not take the view that, in order that the summing up may survive scrutiny, it must contain a reference to every single piece of evidence which the jury might think to be inconsistent with the Crown case. Looking at the directions as a whole, we are of the opinion that the omission just mentioned did not cause them to lack that overall balance which is necessary.
Mr O'Donnell helpfully provided a list of what he claimed to be examples of the use of expressions by the trial judge constituting advocacy of the Crown case. We do not think it necessary to set them all out at length, but should refer to some which were particularly discussed during argument.
1. "Now, Cadona was right there only a few feet away on the Crown case when the accused bashed this man's face and skull in with the piece of concrete."Counsel appeared to suggest that the word "bashed", in particular, was unnecessary and might have inflamed the jury. We do not see anything wrong with the use of the word, which describes in a colloquial but accurate way what happened to the victim.
2. "And you will remember the drama in this Court, ladies
and gentlemen, when Cadona gave that evidence, the accused made an outburst from the floor of the Court. You will remember what he said."We find it difficult to understand this objection. The fact was that when Cadona gave evidence that the appellant admitted to him having "just killed Owen" (the victim), the accused said: "You are full of shit, Eric."
The suggestion by Mr O'Donnell was, as we understood it, that the use of the expression just quoted might have made an unfavourable effect on the jury so far as the appellant was concerned. We do not consider that the possibility that the jury might not have liked the appellant's mode of expression obliged his Honour not to mention it. His Honour was quite entitled to draw the jury's attention to the fact that the appellant, when Cadona gave evidence of the admission, made an immediate and emotional denial of it.
3. "Then Mr Crispin persisted:
'If we can just be clear about this ...'"
Mr Crispin was leading counsel for the appellant at the trial. The objection taken by Mr O'Donnell was to the use of the word "persisted". We do not think it is used in a pejorative sense, and even if it were, we fail to see how this could possibly inflame the jury.
4. "Then he reveals himself. What do you think of this man
as a witness of truth. It is up to you."This part of the summing up was a reference to evidence given by the witness, Lowe. The point being made by his Honour was that Lowe gave an account of his background, which might have provided the jury with a partial explanation of the mode in which he gave evidence; it was, to a degree, inconsistent and poorly expressed. The expression "reveals himself" as a description of Lowe's account of his educational standard and general background was not, in our opinion, tendentious. It should be noted that no attack was made on the balance of the summing up by senior counsel for the accused.
In summary, we are of opinion that the attack on the summing up as being unbalanced fails.
The second group of submissions made by Mr O'Donnell were put forward in support of the conclusion that the learned primary judge gave erroneous directions on the question of corroboration. Mr O'Donnell said that some pieces of evidence which were described by his Honour as capable of amounting to corroboration of Cadona's evidence did not merit that description and were not capable of being so used.
In our view, Cadona's connection with the events he described was plainly such as to make it necessary for the trial judge to sum up on the basis that the jury could treat him as an accomplice. He had pleaded guilty to the manslaughter of the victim; even on his own version of events, he went to the scene of the crime with the appellant, believing that the latter was likely to rob the victim.
The argument was advanced on behalf of the appellant that the pieces of evidence in question did not directly support Cadona's evidence on the critical point that it was the appellant and not Cadona who committed the murder. Secondly, it was said that some pieces of evidence, supposedly corroborative, mentioned by his Honour, were as consistent with the defence case as with the Crown case. We find it convenient to refer to two recent statements of the nature of corroboration in respect of the evidence of an accomplice. The first is in Richard John Doney (1988) 37 A Crim R 288. There Hunt J., with whom the other members of the Court of Criminal Appeal agreed, said:
"To amount to corroboration, the independent evidence must connect, or tend to connect, an accused with the crime with which he has been charged: Baskerville (1916) 2 KB 658 at 667. The word 'connect' is interpreted fairly broadly. The independent evidence does not itself have to establish beyond reasonable doubt the accused's guilt of that charge, otherwise the evidence of the accomplice would not be needed at all: Baskerville at 664. Nor does the independent evidence have to form any part in the chain of proof of that guilt, although of course it may do so. It does need to prove, or tend to prove, that the accused was implicated in the commission of the crime with which he has been charged, but the word 'implicate' does not necessarily mean 'incriminate' or 'inculpate'; it may mean only 'involve': Berrill
(1988) Qd R 508 at 523; 5 A Crim R 431 at 444. The fact that the independent evidence is consistent not only with the accused's involvement in the crime charged (here, the importation) but also with his involvement in some other lesser crime (here, the distribution) does not deny the capacity of that evidence to amount to corroboration: McK
(1986) 1 Qd R 476 at 477, 480-481."
In McK. (cited by Hunt J.) the statement from R. v. Berrill to which Hunt J. refers is again approved. One also finds this account of the law given by Thomas J., with whom Connolly J. agreed:
"I am unable to see why a party should be permitted to render evidence inadmissible or unusable by admitting it or part of it to be true. Such evidence may be consistent with both cases, but it is for the jury to say whether it regards the evidence as corroborating the complainant's evidence or not." (p 480)
It is necessary to apply these principles to the principal complaints made on behalf of the appellant.
Firstly, the complaint was made that the trial judge wrongly told the jury that evidence that there was an operation upon the victim's bank account by use of his credit card at 1.32 a.m. was corroborative of Cadona's evidence. What his Honour actually said, speaking of Cadona's evidence, was:
"He thinks that they went there, he says it was the accused who tried to operate the account. But it is some corroboration of robbery and it is some corroboration of the accused having done what Cadona told you he did."
In our opinion this direction was correct. Cadona's account of events included a robbery committed by the appellant at the time of the murder in which (inter alia) the card was stolen, and it is, in our opinion, clear that evidence supporting the commission of the robbery falls within the principles just set out even though it was arguably consistent with Cardona and not the accused being the robber. It should be mentioned, however, that the force of the evidence of use of the victim's card in the automatic teller went further. There was a formal admission on behalf of the accused that this use occurred at 1.32 a.m. - i.e. shortly after the murder. The appellant's version of events given in his statement to the Court was to the effect that he first heard of the murder when Cadona came to his residence about 11.00 or 11.30 p.m. with blood on his clothes. The appellant did not suggest in his statement, nor was there anything in the evidence, to support the view that the two men thereafter parted company so as to lend plausibility to the theory that it might have been Cadona alone who used the automatic teller. Indeed the evidence cast doubt upon the accused's statement.
The only contention made on behalf of the appellant relating to this topic which has some superficial attraction is that the trial judge wrongly told the jury that the appellant's presence at a place called "Carosello" was corroborative. The passage in which this occurs is as follows:
"First there is the fact that the accused was at the Carosello, as Cadona said. There is the fact, which Cadona had not said, but there is the fact that the accused had some sort of a fight with the deceased."
There was evidence, as his Honour said, that the appellant was at the place just mentioned and (a matter on which the Crown relied heavily) it was at that place the appellant and the victim had a fight. It is true that in the passage we have quoted his Honour separates these two elements, but it was argued for the respondent that the jury would have taken them together. That is, Mr Weinberg said that the jury would have understood his Honour to be telling them that it was the combination of the presence of the appellant and his engaging in the fight which provided corroboration.
It is our opinion that the mere presence of the appellant at the place in question could not, in the circumstances, have amounted to corroboration because it did not implicate the appellant in the commission of the crime. Nor are we convinced that the jury would necessarily have taken the direction as Mr Weinberg contends they would; it is possible that they would have understood his Honour to be suggesting that the mere presence at the "Carosello" was corrobative. But even if that be so, the point is of no real significance. There was, on any view, ample corroboration and we do not believe that there is any possibility that the impugned direction caused injustice to the appellant.
We should add that the appellant's counsel suggested, without elaborating the point to any extent, that in the circumstances the conviction was unsafe and should not be allowed to stand. This argument was not supported by any submissions other than those with which we have already dealt. There was, in our opinion, a very strong Crown case and the submission fails.
The appeal will accordingly be dismissed.
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