Sumner v The Queen
[2010] VSCA 221
•2 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| JAMIE LESLIE SUMNER | S APCR 2008 0667 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH, MANDIE & BONGIORNO AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 17 June 2010 | ||
DATE OF JUDGMENT: | 2 September 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 221 | ||
JUDGMENT APPEALED FROM: | [2008] VSC 176 (Nettle JA) | ||
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CRIME – Conviction for murder – Whether Faure warning necessary in relation to principal Crown witness – Corroboration – Essential quality of corroboration evidence – R v Kuster (2008) 21 VR 407 applied – Circumstantial evidence amounting to corroboration – Corroboration of admissions made in numerous conversations – Consistency with facts admitted – Facts otherwise unknown to the person to whom the admission was made – Burns v R (1975) 132 CLR 258; Matusevich v R (1977) 137 CLR 633 applied – Improbability that consistencies were coincidence – Cumulative effect of facts rendering making of the admissions more probable – Facts more consistent with Crown hypothesis – Whether verdict unsafe or unreasonable.
SENTENCE – Vigilante action – Whether sentence should be reduced on account of the applicant’s distress and human frailty – Term of twenty two years’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr M J Croucher Mr K J Dernelley | Theo Magazis & Assoc |
For the Crown | Mr J D McArdle Q.C. | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
The applicant was jointly presented in the trial division of the Supreme Court with a co-accused, Shaun Benporath, on a count of having murdered Ray Allen. Following a jury trial, the applicant was found guilty and his co-accused was acquitted. The applicant was sentenced to 22 years’ imprisonment with a non-parole period of 18 years. He now seeks leave to appeal against his conviction and sentence.
The applicant relies upon two grounds of appeal against conviction. Under ground 1, it is contended that the learned trial judge erred by finding that particular pieces of evidence were capable of being corroborative of the evidence of the witness Chi Dung Lien, who testified that the applicant had made inculpatory statements to him on various occasions immediately before and after Ray Allen’s disappearance. Under ground 2 it is contended that the conviction is unreasonable or not open on the evidence.
The Crown Case
Raymond Allen, was last seen in the afternoon of Anzac Day 25 April 2005. He was reported as a missing person at the Mooroopna Police Station on 27 April 2005.
The Crown case was that Allen was abducted by the applicant and Benporath on the afternoon of 25 April 2005 and was later murdered. The motive was said to be the applicant’s belief that his brother, while under the influence of prescription drugs and cannabis, had been raped by Allen. This allegation, which was probably false, was made by his brother when he was admitted to a psychiatric hospital following an attempted suicide. He was then suffering from a psychosis with consequent florid delusions.
It was the Crown case that in response to his brother’s allegation, the applicant decided to take revenge upon Allen. He arrived in Shepparton, where Ray Allen resided, and enlisted the assistance of the co-accused who was his friend. A meeting was arranged with Ray Allen on the pretence that they would take part in a drug transaction. It was not in dispute that the said meeting between the applicant and Ray Allen was arranged to take place around 6pm at the local Bi Lo store. Nor was it in dispute that Ray Allen was last seen heading towards this meeting. It was the defence case, at trial, that the planned meeting did not eventuate. The Crown case was that the applicant abducted Ray Allen from that meeting and that he murdered him, probably at some time later on that evening.
A significant witness at the trial was the applicant’s drug supplier, Chi Dung Lien, who testified as to six inculpatory conversations he claimed to have had with the applicant at around the time of Allen’s disappearance at times when he was providing the applicant with heroin. The substance of this evidence is set out in more detail in respect of ground 1 below.
In essence, Lien testified that the applicant told him on 24 April 2005 that he was going to find and kill the boy who he said had raped his brother. Then on the evening of 25 April, the applicant again met Lien and said that he had found the boy who was then in his car. On four later occasions, he again met Lien and made comments relating to concealment of Ray Allen’s body and which included the suggestion that it had been burned and then disposed of in an area near the Victorian and New South Wales border. The content of each of these conversations was challenged by the defence during cross-examination.
Ground 1 – Evidence of Corroboration
The applicant’s primary ground of appeal relates to the evidence given by Lien. Ground 1 is in the following terms:
The learned judge erred in leaving the following items of evidence as capable of being corroborative of aspects of the evidence of Chi Dung Lien:
(1)the evidence suggesting that Raymond Allen’s DNA was deposited on the door of the Commodore;
(2) the evidence of Ricardo Lay as to the applicant’s meeting with Mr Lien;
(3)the evidence that a pipe was discovered by police at the Sumner family property;
(4)the evidence of Tony Glover as to the identity of the person he helped out of a bog.
It is necessary to describe in some detail the nature of the allegations made by Lien arising from the six conversations he had with the applicant.[1] Each meeting was for the purpose of Lien supplying the applicant with heroin. It appears, that with the possible exception of the time of the meeting at which Lay was present, Lien’s evidence that he met with the applicant on each of the occasions alleged, was not challenged.
[1]Lien was born in Vietnam and gave evidence with the assistance of an interpreter.
In the first conversation on 24 April 2005, he said that the applicant told him that he was going to find and kill the boy who he said raped his brother. The meeting took place in a park near Napoleon street in Footscray. The applicant did not state the name of the alleged rapist but he said that it was one of his brother Daniel’s friends, a young person who lived in Shepparton. The applicant told him that the friend gave Daniel marijuana and pills and then raped him and that he found out about the rape through his older brother. Lien said that a friend Ricardo Lay was also at the park at this time and that the applicant at one point asked Lay for a weapon. Lien said Lay offered the applicant a big metal pipe which the applicant refused.
Mr Lien said that on the night of 25 April 2005 (that being the night Ray Allen was last seen), he again met the applicant, this time at Craigieburn on the Hume Highway. There was another person present who alighted from the car. Lien said that the applicant told him that he had been to Shepparton looking for the boy, that he had found him, that he had hit the boy who may have a broken jaw and that he was lying on the back seat. Mr Lien observed that the car being driven by the applicant was a white Holden Commodore. The defence challenged the evidence that the applicant was driving the Commodore, which belonged to his mother. It was said that he was driving a utility.
The third conversation occurred the next day, or the day after, when Lien again met the applicant, this time at the Central West Shopping Centre. Lien said that the applicant told him that he had killed the boy by cutting his throat and stabbing him several times. He said that the boy had offered to ‘sick his dick’ and that this made him angry and that he then killed him. Lien said he asked where the body was and his was told ‘far in the mountain or the forest or something’. When pressed, Lien at trial appeared to have stated that he thought the applicant said it was at ‘Melton’ but the contention was also put that due to language difficulties he may have meant ‘in the mountain’. Lien also said that the applicant told him the body was under a big concrete pipe. Lien said that when the applicant told him this he looked as though nothing had happened. Lien claimed that this made him ‘scared’.
On the next day he said he met the applicant in a park in Footscray. The applicant wanted more heroin than usual. The applicant told him that the family of the boy he killed had contacted him to try to find the boy. He met the applicant again later that day at around midnight at the park. He said the applicant had heard that the family had contacted the police. He was scared that someone would ‘see’ the body. He wanted more heroin because he was going to go away for a few days to dispose of the boy’s body. Lien said that the applicant drove to the park in a white Ford van, which contained one other person.
Finally, some days later, Lien again met the applicant. He said the applicant was driving the same van which was dirty with mud half-way up its sides. He said the applicant, too, had mud on his pants. The applicant said he had been near the border. He told Lien that he had burned the body of the boy. When Lien asked what he had done after he burned the body the applicant held up his hands and blew on them as if he had done something to make it disappear into dust. The applicant told him the van got stuck in the mud in the forest and that he had to walk a long way to get help until, luckily, he saw a man with a four-wheel drive to help him pull the van out of the mud.
Lien was extensively cross-examined by Senior Counsel for the applicant. Lien had convictions for drug-dealing and dishonesty and he admitted to lying. He also had outstanding charges for drug-dealing and dishonesty offences and had promised to assist police in return for a letter of support on those charges. Further, evidence was given by the witness Lay, that Lien was angry with the applicant for attracting attention to Lien’s drug-dealing activities. Thus, it was the defence position, that Lien was prepared to lie, to exaggerate his evidence and to tell the police what they wanted to hear.
A significant part of the cross-examination of Lien concentrated upon inconsistencies in his evidence. Lien had made two statements to the police. The second was a much more detailed statement. The defence explored in cross-examination what were said to be material differences between the two statements. Attention was drawn to Lien first statement in which he said that the applicant was driving a utility vehicle rather a Commodore. Lien did not say in that statement that the applicant had said that he found the boy or that he had cut his throat, or that he had hidden the body or that he referred to a ‘pipe’ in the ‘Mountain’ or in ‘Melton’. While Lien claimed that he was ‘scared’ and ‘confused’ by what the applicant said, he admitted during cross examination that he continued to deal with the applicant even after the time of his first police statement.
A Faure Warning
The trial judge sought the view of counsel as to whether a Faure direction ought be given in respect of the witness Lien. In response to this inquiry, prosecuting counsel gave a qualified response, but did not appear to take issue with the view that such a direction might be required in the circumstances of the case. Counsel for the applicant submitted that a Faure direction was required by reference to a number of factors. The existence of these factors was not in dispute. They included that Lien was a drug dealer with prior convictions for theft, handling stolen property and breach of bail. The defence relied upon the fact that he had a motive to lie. He had agreed to give evidence for the Crown and had been offered a letter of support from the Homicide Squad. He received a suspended sentence on unrelated charges in return for his undertaking to give evidence against the applicant. Reference was also made to the evidence of Lien’s friend Lay, that Lien was angry with the applicant, believing him to have attracted police attention to his drug trafficking operations. The defence also relied upon the fact that Lien had given a prior statement to the police that was inconsistent with his evidence at trial. This combination of factors was said to potentially affect his evidence and required that a Faure warning be given to draw attention to those dangers.
The learned trial judge acceded to this submission and duly directed the jury that they ought be slow to rely upon Lien’s evidence except as to those aspects which they considered to be ‘inherently probable’ or supported by independent corroborative evidence.
On the hearing of the appeal, Senior Counsel for the Crown submitted that the giving of a Faure direction at the trial was unduly favourable to the applicant as such a warning was unnecessary. There is some force in this contention. It is well recognised that need for such a warning may arise where factors exist, relating to the evidence of a witness, which call for a high level of care before reliance is placed upon that evidence by the jury. As was observed in R v Kuster,[2] the warning is directed to the risk that the jury will not appreciate the dangers which arise from the presence of those factors. Typically, such a warning is required in recognised categories of circumstances such as evidence led from a prison informer, from one who suffers from a relevant mental disability or, confessions to police witnesses.[3] The categories of circumstances in which a warning should be given are not closed. In the present case it appears from the charge of the learned trial judge that the warning was given in response to a combination of factors, although principally because of Lien’s incentive to provide evidence in return for assistance from the police.
[2](2008) 21 VR 407, [8].
[3]See variously Pollitt v R (1992) 174 CLR 558; Bromley v R (1986) 161 CLR 315; Carr v R (1988) 165 CLR 314.
In circumstances such as these, which fall outside the recognised categories, a Faure direction may nonetheless be required where the trial judge considers that such a warning is necessary to avoid a perceptible risk of a miscarriage of justice. As was made clear in R v Kotzmann[4] the ultimate question is whether such a direction was ‘necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice’. The basis for the warning will exist where ‘the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasised by the judge’.[5]
[4][1999] 2 VR 123, [77].
[5]R v Latina (Unreported, Supreme Court of Victoria, Court of Appeal, Phillps CJ, Brooking JA, Southwell AJA, 2 April 1996).
In support of the need for such a warning, the applicant drew upon the principle that is applied to admissions said to have been made to a prison informer. These were described by Deane J in R v Pollitt who observed:
One reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a ‘prison informer’ will be of bad character. Another is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressure of a type which may easily arise in a prison environment and which may not be apparent to a jury.[6]
[6](1992) 174 CLR 558.
The trial judge adopted the prudential course of giving such a direction although I doubt that the circumstances which prevailed necessitated the conclusion that he was, in law, a ‘dangerous witness’ in the sense described in Faure. The factors relied upon by defence counsel as bearing upon the reliability of Lien were explored at great length in the trial and would have been ‘readily apparent to the jury’.[7] Further, they concerned issues that were within the ability of the jury to assess for themselves, in the light of their own experiences and observations, and with the benefit of counsel’s addresses.[8] But in taking a precautionary approach, his Honour was acting in conformity with his duty, by warning the jury of the danger of convicting on evidence which it was considered was potentially unreliable
[7]R v Kuster (2008) 21 VR 407, [9].
[8]See discussion in R v Kotzmann [1999] 2 VR 123, [77].
The four items of corroboration
Regardless, however, of whether in law such a direction was required, the trial judge identified the four items of evidence upon which the Crown relied as corroboration of Lien’s account. The applicant contends that the four items of evidence, the subject of ground 1 of the appeal, were wrongfully left to the jury as capable of providing corroboration of Lien’s account. Were this submission to succeed, then the credit of Lien could have been improperly bolstered by reference to that evidence.
First, the jury was referred to evidence led from one Detective Peck, who testified that deposits of DNA, were found on the inside rear door of a white Commodore vehicle belonging to the applicant’s mother and which the applicant was said to be driving on the night. That DNA, which could have been in blood, was highly likely, he said, to have been Ray Allen’s DNA. Peck said the vehicle was searched and the sample was found following Lien’s second statement, in which Lien had described the white commodore vehicle and had said that the applicant told him on the night of the 25th that Ray Allen was lying on the back seat of the car. The trial judge directed the jury that if they were satisfied that the DNA was that of Ray Allen and that it was deposited on the door on the occasion of the 25th April as opposed to an earlier occasion when Ray Allen was in the car driven by Mrs Sumner, it would be capable of supporting Lien’s testimony that Sumner was driving the commodore on that night, that Ray Allen was in the car and that the applicant had told Lien that.
Second, the jury was instructed that the evidence led from Lien’s friend, Lay, that he was present at a meeting between Lien and the applicant on 24 April 2005 was capable of amounting to corroboration of Lien’s account. At this meeting, he claimed that the applicant was upset and crying and that he offered him the use of a weapon (being a metal stand of some kind) at this time. The applicant did not accept the weapon. This was said to provide corroboration of the fact that Lien met with Sumner on the night of 24 April 2005, and was told at this time that the applicant was going to kill Allen. Evidence was led from Detective Peck that before Lien’s second statement the presence of Lay at the meeting was unknown to police. The jury were warned that they could only rely upon that evidence as corroboration if satisfied that it was ‘probable’ that the conversation at which Lay was present was on 24 April 2005 and was the same conversation of which Lien spoke. If so, the jury were directed, that it would be open to them to use Lay’s evidence as supporting Lien’s testimony to the extent of saying that Lien had a conversation with the applicant that night in which Sumner was emotional and that there was some discussion about weapons at this time.
Third, corroborative evidence was said to be provided by the discovery of a buried concrete pipe at 50 Ridge Road, Christmas Hills, that being a property belonging to the applicant’s parents. Evidence was led from Senior Sergeant Robert Gatt who said that he was involved in searching the property and found the pipe after seeing an area of ground where the soil appeared to have been turned and was without vegetation. The existence of the pipe was not known at the time of Lien’s second statement. This was said to provide corroboration of Lien’s account that the applicant told him that he had put the body in a cement pipe (possibly in the forest in the Mountains or in Melton). In relation to the evidence about the pipe, the jury were directed that if they considered it ‘likely’ that the body of the deceased was stored in the pipe, then the existence of the pipe would be capable of supporting Lien’s evidence that the applicant told him that the body was hidden in a pipe.
Fourth, evidence was led from a witness named Tony Glover who said that in the period following Anzac Day in 2005, he towed a white van from a bogged position in the Barmah State forest. This was said to provide corroboration that the applicant had told Lien he was going to dispose of the body of Ray Allen and of Lien’s account that the van was in a muddy condition and that Lien was later seen in dirty clothing. In relation to the evidence of Mr Glover, the jury were directed that if they came to the view that the man who Glover saw with the van in the bush was the applicant, his evidence would be capable of supporting Lien’s evidence to the extent that it corroborated Lien’s account that the applicant told him that he had been into the forest, in the van, to dispose of the body and got bogged.
Circumstantial evidence amounting to corroboration
The applicant’s submission was that each of the items, considered separately, were incapable of amounting in law to corroboration and did not render Lien’s account more probable. Before examining each individual item of corroboration, I should first deal with an unsound assumption which underlay the entire argument, that the jury was required to consider each item of corroboration in isolation. It is therefore necessary to refer to the manner in which circumstantial evidence amounting to corroboration should be approached.[9]
[9]See the discussion in R v Gill and Mitchell (Ruling No 5) (2003) 142 A Crim R 22, [3]–[18].
Corroboration may be provided by circumstantial evidence. It is the very essence of circumstantial evidence that the items of evidence need not be examined in isolation, but may be considered in their totality [10] As Dawson J stated in R v Sheppard
the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.[11]
[10]R v NG (2002) 5 VR 257, [151].
[11](1990) 170 CLR 573.
This was again emphasised in the joint judgment of Gummow, Hayne and Crennan JJ in R v Hillier[12] who observed that in a circumstantial case it is often the case :
that there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in Reg v Van Beelen; and see Thomas v The Queen and cases there cited.
[12](2007) 228 CLR 618.
Such a process of reasoning applies to circumstantial evidence as corroboration.[13] In the Australian edition of Cross on Evidence it is said:
…, corroborative evidence may be circumstantial as well as direct. Where there is before the court evidence of a chain of circumstances which in combination implicate the accused, this may amount to corroboration notwithstanding that any one link in the chain would not.[14]
There may be independent facts and circumstances proved in a case which, whilst incapable individually of providing corroboration, in combination, are perceived as capable of having that effect. That is to say, although a particular fact or facts looked at in isolation may not tend towards the implication of the accused, the combined weight of those facts may do so. Hence corroboration can be founded in a chain of circumstances.[15]
[13] R v Baskerville [1916–17] All ER 38; Doney v R (1990) 171 CLR 207, 211; R v Rayner [1998] 4 VR 818; R v Tadic & Gibb (Unreported VCCA BC9300826, 31 August 1993); R v Camilleri [1999] VSC 162 (Vincent J); R v Gill & Mitchell (2003) 142 A Crim R 22 (Redlich J); R v Ngo [2002] VSCA 188.
[14] At [15175].
[15] See R v Tadic & Gibb (Unreported VCCA BC9300826, 31 August 1993); R v Kendrick [1997] 2 VR 699; R v Nanette [1982] VR 81; Conwayv R (2002) 209 CLR 203; R v D (1998) 71 SASR 99.
Accordingly, the jury did not need to consider each item of corroboration in isolation to determine whether there was corroboration of Lien’s account. The jury could act upon the cumulative effect of all of the corroborative evidence as providing corroboration without reaching a separate conclusion about anyone individual item of corroboration. It was open to the jury to find that the pieces of corroborative evidence in combination with each other, all unknown to Lien and consistent with his account,[16] provided a powerful constellation of corroborative material.
[16]The reason why consistency with the impugned witnesses account is sufficient is explained when dealing with each separate item of corroboration at [43]–[46].
The circumstantial evidence of corroboration also permitted this further reasoning. Lien’s account was that the applicant had six conversations with him about Allen. The applicant’s defence involved a denial that he had ever had cause to discuss Ray Allen with Lien in any of these conversations. It was said in his defence that the applicant did not know that his brother had made any allegation against Ray Allen until after his disappearance. Once the jury concluded that one of the items of circumstantial evidence made one of the admissions more probable, they could take that conclusion into account when considering whether it was probable that he had made any of the other admissions concerning Allen.
Both at the commencement of the trial and in his charge, the trial judge gave the jury conventional directions concerning the use of circumstantial evidence. Counsel for all parties in their opening and closing addresses, emphasised that the Crown case rested upon circumstantial evidence. In addition during the charge the trial judge gave the jury examples of how they might use circumstantial evidence such as the testimony of Glover, as part of their process reasoning as to whether he had made the admission which Lien alleged. The combined effect of the items of corroboration was such that the jury was entitled to conclude that Lien’s account was corroborated without concluding that any item in isolation did so. They were entitled to consider the combined force of each of the pieces of circumstantial evidence consistent with the Lien’s account of his conversations with the applicant. It would have been open to the jury to regard the factual matrix as providing strong support for the impugned witness.[17] They could also consider the improbability that each of these pieces of evidence proved to be consistent with Lien’s account unless his account was true.
[17]R v Camilleri [1999] VSC 162, [21] (Vincent J).
I turn then to the applicant’s contention, that each of the four items of evidence, considered separately, was incapable in law of corroborating Lien’s account. It was said that ‘none of the pieces of evidence rendered Lien’s evidence in a material particular, more probable by implicating the applicant in the offence charged’. Even if the contention were sound that each item should be independently assessed, the applicant’s submission must be rejected. It misconceives the general nature of corroboration and fails to recognise the particular nature of the corroboration with which we are presently concerned. Each item of evidence was capable of corroborating Lien’s account that the applicant made the admission alleged.
(1) DNA
As to the DNA evidence, the jury were directed that it could only rely upon that evidence as corroboration if satisfied that the source of the sample was deposited in the Commodore on the night that the applicant was said by Lien to have told him that Ray Allen was on the back seat.
It was accepted by both parties that the forensic evidence could not date the deposit that provided the sample. Fabio Guarino, a forensic specialist specialising in biology, examined the sample from the car. He said expressed the conclusion that it was ‘probably’ blood, but could not be certain.[18]
[18]At T 899.
Evidence was obtained from the applicant’s mother, the owner of the Commodore, who said, who said that Ray Allen had been in her car ‘quite a lot of times’ or ‘about eight to ten times’ as one of the applicant’s brother’s friends. The witness, Katrina Rowlands who was the deceased’s mother, further testified that she had seen him in the back of a white four door Commodore Sedan driven by the applicant’s mother on ‘maybe all up five occasions’. She said of her son and his friends that ‘they’d sit in the back’ and that this was where he would sit. She also
said that one time he was being driven by Mrs Sumner, he seemed to have ‘a little scratch’ on his leg and that this might have been caused by falling from his bike.[19]
[19]At T 266–267.
On the appeal, the applicant submitted that there was no probative basis upon which the jury could decide that the DNA evidence was left there on the relevant evening. As a consequence the DNA was said to be ‘intractably neutral’ and could not be used as corroboration.[20]
[20]The applicant relied upon the decision in R v Kerim [1988] 1 Qd R 426.
The general nature of corroboration
The essential quality of corroborative evidence was discussed in R v Kuster[21] in these terms:
[21](2008) 21 VR 407.
Whether evidence amounts to corroboration is governed by the fundamental principle that it must be evidence - independent of the witness to be corroborated - which tends to confirm the evidence of that witness that the crime was committed and that the accused committed the crime. This principle has from time to time been misconceived as requiring the corroboration evidence itself to be probative of the fact that the accused committed the crime. Vincent JA in R v Taylor noted that there has been a ‘remarkable persistence of the misconception’ that evidence relied upon as corroboration ‘must itself be probative of guilt.’ The present argument rests upon this very fallacy.
In Doney v R (‘Doney’), the corroborative evidence did not itself directly link the accused to the crime charged. The High Court rejected a submission that the evidence could not be corroborative because it did not implicate the accused in the offence charged. The joint judgment adopted the classic statement from R v Baskerville (‘Baskerville’) that corroborative evidence must [tend] to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.
The highlighted words are not always included when Baskerville is cited, which may explain why the essence of corroboration is sometimes misunderstood. The passage from the judgment of Callaway JA in R v McLachlan, upon which the applicant placed heavy reliance, does refer to the relevant part of the judgment in Doney, which was in these terms:
The essence of corroborative evidence is the presence of some confirmation, support or strengthening of other evidence such that that other evidence is rendered more probable. ...
...
In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: see Baskerville; Reg v Hester.
This Court has repeatedly rejected the notion that corroborating evidence must itself prove that the crime was committed and that the accused was involved in its commission. Thus, in R v Rayner, Winneke P observed:
In truth, the essence of corroboration is that it is evidence coming from a source independent of the person to be corroborated which renders that person's evidence in a material particular more probable, in the sense that it tends to show not only that the crime charged was committed but that the accused was involved in its commission: R vBaskerville's[1916] 2 KB 658 at 667 per Lord Reading CJ; R vKendrick [1997] 2 VR 699 at 708.
Similar observations were made in R v Taylor. In R v Trong Duy Ngo, the Court said:
The locus classicus of what amounts to corroborative material is the decision in Baskerville. The decision in that case is not authority for the proposition that potentially corroborative material must itself prove the crime was committed and that the accused was involved in its commission.
In none of these cases did the corroborative evidence, viewed in isolation from the evidence to be corroborated, prove the commission of the offence or that the accused was implicated in it.
In BRS v R, Brennan CJ observed that: ‘[I]t is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends. The essential quality of corroborative evidence is that it must independently ‘confirm’, ‘support’ or ‘strengthen’ the evidence to be corroborated, by rendering that ‘other evidence more probable.’ It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated. Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated. Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal. It is for the jury to determine whether it is corroborative.[22]
[22]Ibid [14]–[18].
The applicant relied upon the general proposition that if no basis exists upon which a jury could possibly prefer one hypothesis to another it cannot constitute
corroboration. In Goonan v R the New South Wales Court of Appeal constituted by Hunt CJ, Gleeson CJ and Ireland J observed:
But as pointed out in Kerim at 447; and in Kalajzich at 432-433, whether a particular matter is capable of corroborating the guilt of the accused must depend on the issues at the trial, and even though it may have a consistency with both versions, it must nevertheless be capable of being regarded as being more consistent with guilt than innocence. It must possess some independent thrust and not be intractably neutral in its effect.[23]
[23](1993) 69 A Crim R 338, 345–6.
For reasons which will become apparent it is unnecessary to consider whether there is any conflict between the observations in Goonan and those of Winneke P with whom Ormiston and Vincent JJA agreed in R v Taylor[24] who in rejecting the notion that the corroboration was intractably neutral said:
[24](2004) 8 VR 213.
The mere fact that it might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration……
Thus it seems to me to be clear from the authorities that it is not necessary that the ‘supportive evidence’ be consistent only with the prosecution case or indeed more consistent with that case than with the defence – even if such a conclusion could be reached. R v Baskerville above, is it itself a prime example of that, because the written note there relied upon, was arguably, as consistent with the case made by the accused as it was with the case made by the Crown. As is commonly said, circumstantial evidence usually does give rise to competing inferences.[25]
[25]Ibid [13]–[15].
Circumstantial evidence which renders the making of an admission more probable
Items (1) – the DNA, (3) – the pipe and (4) – the observations of Mr Glover, are evidence the character of which is said to make it more likely that the applicant had made the admissions alleged. Evidence of facts unknown to the person to whom an alleged admission was made, has a particular quality. The consistency of such evidence with the fact said to have been admitted provides confirmation of the alleged admission. It tends to make it more likely that the admission was made. Such evidence need not be more consistent with the prosecution hypothesis as to guilt. Such evidence derives its probative weight from the proposition that where the facts demonstrate the truth of an alleged admission in a confessional statement and those facts are unknown to the person to whom the statement was made, those facts may render it more likely that the statement was in fact made.[26] It was on this basis that the Crown identified these items as constituting corroboration and the trial judge so treated them as capable of being corroboration.
[26]Burns v R (1975) 132 CLR 258; Matusevich v R (1977) 137 CLR 633.
Both parties to the appeal referred to the decision of this Court in R v Kuster.[27] The Court there was concerned with an appeal against conviction brought on related counts of murder and arson. The murder victim had been found burned in a fire damaged house. An autopsy revealed stab-wounds and skull fractures. This evidence indicated that the victim had died prior to the beginning of the fire. A key witness in the crown case gave evidence that the appellant had admitted to her that he had killed the victim by striking him on the head with a brick and by stabbing the victim about 15 times. The defence contended that the skull fracture was equally consistent with the roof falling on the victim during the fire so that the evidence of the fracture was ‘intractably neutral’. The trial judge directed the jury that expert evidence suggesting that the victim had suffered a fractured skull by means of the application of blunt force was capable of corroborating the testimony of the witness.
[27](2008) 21 VR 407.
Kuster, like the present case, was concerned with corroborative evidence, which tended to suggest that an inculpatory statement was more likely to have been made as alleged. Of this, the Court referred to a number of relevant authorities:
In Burns v R (‘Burns’), Barwick CJ, Gibbs and Mason JJ identified the circumstances in which evidence showing that a confession was true might also be relevant to the question whether the confession was made. They observed:
Where an accused by his confession admits facts not then known to his interrogators which are subsequently found to be true, this circumstance affords strong evidence that the confession was in fact made. Where, however, the accused by his confession admits only facts already known to his interrogators the probative value of the truth of what is admitted on the issue whether the confession was in fact made is less cogent and it should, in general, be excluded from the jury’s consideration of that issue in fairness to the accused because is prejudicial effect in the minds of the jury may well outweigh any probative value it has.[28]
[28](1975) 132 CLR 258.
In Pollitt v R (‘Pollitt’), Deane J spoke of the need for corroboration of the ‘actual making of the oral confessional statement’ to a prison informer. An example of such corroboration would be:
…evidence establishing both that disputed material in the alleged oral confessional statement is accurate and that the material would not have been known to the witness if the alleged confessional statement had not been made.[29]
R v Georgiev was another case in which this form of corroboration was recognised. Brooking and Phillips JJA referred to Burns and said:
And so in the present case, in considering how probable it was that the applicant made the confession, it was material to consider whether the alleged confession admitted facts which were true and which were unlikely to have been known to Joanne Guziak unless the applicant himself had related them to her. The mother’s evidence of what her daughter said to her. The mother’s evidence of what her daughter said to her on the day after the killing corroborated Joanne’s evidence that very shortly after the killing she was aware of certain facts (facts which were true and which the jury could be asked to find she was unlikely to be aware of unless she had them from the applicant…In the present case what was important was the Crown’s allegation very shortly after the killing, and so at a time when she was unlikely to have learned of the facts from a source other than the applicant, she was aware of them. She manifested her awareness of them by herself relating them as having been told to her by the applicant.[30]
…
[29](1992) 174 CLR 558.
[30](2001) 119 A Crim R 363.
Kuster also referred to Matusevich v The Queen where, Murphy J and Aickin J explaining the process of reasoning approved in Burns, identified as critical, proof that the fact was more likely to have come from the accused than from the police to whom the confession was made.[31]The trial judge in Kuster had directed the jury that the evidence could not be so used unless at the time the witness made her statement, she was not, by other means, in a position to know that the victim had suffered head fractures. As it was open to the jury to conclude that the skull fracture, could only have been known to the witness if she had been told by the accused, the evidence was capable of amounting to corroboration of the witness’ account as it rendered it more probable that the applicant did in fact confess in the terms recounted.
[31](1977) 137 CLR 633.
The applicant attempted to distinguish Kuster and the principle upon which it rests on the basis that it was not open to the jury to be satisfied that any of the purportedly circumstantial evidence was capable of rendering Lien’s account, in a material particular, ‘more probable’.[32] The applicant’s submission was that because the DNA may have been deposited in the car on some other occasion, it was intractably neutral. This submission misconceives the purpose and effect of this species of corroborative evidence.[33]
[32]R v Rayner [1998] 4 VR 818, 850–851. Referred to above in R v Kuster.
[33]Items (1), (3) and (4).
Where it is established that evidence of a fact renders it more likely that a particular admission was made, then it may be corroborative of the witnesses claim that the admission was made, though the fact be equally consistent with both the prosecution hypothesis and an innocent hypothesis. Kuster was such a case. If the evidence of a fact is consistent with an alleged admission of the accused, and it is established that the fact was unknown to the person to whom the admission was made, that fact may render it improbable that the consistency is coincidence. The fact will not be intractably neutral on the question whether it is likely that the admission was made.
That DNA of Ray Allen could be found on the back seat of the vehicle was plainly consistent with the account given by Lien at trial that he observed the white Commodore and the applicant told him that Ray Allen was in the car. The location of the DNA on the rear door trim under the rear door handle was also consistent with Lien’s account that he had been told that Ray Allen was laying on the back seat and that he may have broken his jaw. Peck gave evidence that the DNA was found in a place on the rear door side trim at a level at which one would expect if the boy was lying on the back seat.
The applicant at trial challenged both the fact that he was driving the Commodore or that he said anything about Allen. The fact that there was other evidence before the jury which raised as a possibility that the DNA of Ray Allen may have been deposited in the vehicle on some other occasion did not deny the DNA the character of potential corroboration. It was not suggested that Lien could have known by any other means that Ray Allen had been in the applicant’s mothers white Commodore on other occasions.[34] In this way, the presence of the DNA in the Commodore was capable of corroborating the account given by Lien. The probative weight of the DNA as corroboration was derived from the improbability that its consistency with the content of Lien’s account of the applicant’s alleged admissions was merely coincidence.
[34]Lien testified that the applicant had told him to tell the police he was driving his utility. The applicant was later tape recorded saying that that Lien should tell the police that he was driving the ute and that the police ‘think I’m driving another car, they’re trippin.’
It was a matter for the jury whether or not the fact that Allen’s DNA was present in the white Commodore in the location in which it was found, tended to confirm Lien’s account that the applicant was driving the white Commodore and had said that Ray Allen was lying on the back seat and was probably injured. Accordingly, had the jury viewed the DNA evidence in isolation, it was evidence capable of constituting corroboration. But as I have said, the jury were not required to view each item of corroboration separately. The cumulative effect of some or all of the items of circumstantial evidence permitted them to reach the conclusion that the DNA did corroborate Lien’s claim as to what he was told.
The jury were directed that if they were persuaded that the DNA was deposited on the door on the night in question, it could be independent evidence supporting Lien’s evidence that the applicant was driving the Commodore on that night and that Ray Allen was in the car that night. That direction was unduly favourable to the applicant as it diverted the jury’s attention from the fact that its consistency with Lien’s account made it more likely that Lien was told that Ray Allen was in the car. For obvious forensic reasons no objection was raised by defence counsel to this direction which advantaged the applicant. In any event the jury could have concluded that the place where the DNA was found in the car was not merely consistent with it being placed there on the night in question but rendered the alleged statement that Ray Allen was laying in the back of the car more probable. If they had so concluded, then in accordance with the further direction they received, they may have acted upon such an admission if satisfied as to its truthfulness. By that process of reasoning the jury could have concluded that the DNA was placed there on the night of the 25th April.
(2)Evidence of Ricardo Lay
The evidence of Lay was relied upon as corroboration of the fact that Lien had a conversation with the applicant on 24 April and that the applicant was upset and emotional on this occasion and wanted a weapon. The evidence of Lay did not fall within the same species of corroboration as the DNA and items (3) and (4). Lay was called because he was present and could confirm certain observations made by Lien and because he participated in part of the conversation. The significance of Lay’s evidence as potential corroboration was to be assessed in the conventional manner.
The applicant submitted that Lay could not provide corroboration as his evidence contained insufficient detail in order to corroborate any aspect of Lien’s account. Of this, it was submitted first that Lay could not put a date on his claimed conversation with the applicant and Lien; second, that his evidence was limited to the observation that the applicant was upset or crying. Lay did not say he heard the applicant say he intended to kill someone.
To address the applicant’s complaint it is necessary to consider how the evidence of Lay was left before the jury. The key part of the directions of the learned trial judge’s direction was as follows:
…If you considered it was probable that the conversation at which Lay was present was on 24 April 2005 and was the same conversation of which Lien spoke, it would be open to you as a matter of law to use Lay’s evidence as supporting Lien’s testimony to the extent of saying that Lien had a conversation with [the applicant] that night in which Sumner was emotional and that there was some discussion about weapons.
His Honour went on, however, to warn the jury as to the limits to which that evidence could be put:
Plainly, however, it does not go any further than that. Of itself, it does not directly support Lien’s evidence as to what [the applicant] said to him about seeking out the boy to kill him and to the extent it does go, it is up to you to determine whether you think it is probable that the conversation of which Lay spoke was the conversation on 24 April and thus whether it had the effect of providing support to Lien to the limited extent I have mentioned.
It is clear that his Honour directed the jury that the evidence was capable of supporting Lien’s testimony only to the extent that it supported his contention that there had been a conversation on 24 April 2005 during which Sumner was crying and upset and that there was a discussion about a weapon.
Although Lay was unable to state the day of the conversation, I reject the applicant’s submission that it was mere ‘speculation’ to contend that Lay was describing the conversation of the 24th. Lay was able to confine the conversation to a point between two dates (the date on which Lien had moved to Footscray and the date Lien was raided by the police-25 April 2005). It was therefore open to the jury to conclude that the conversation occurred on 24 April 2005. It was not suggested to either Lien nor Lay that there was more than one conversation during which the applicant had been crying and emotional when they were both present and a weapon was discussed. Further, Lay was able to identify a park near Napoleon Street in West Footscray as the location of the conversation, a location which corresponded with Lien’s evidence. Like the trial judge, I do not consider that the fact that there were differences in the accounts of Lien and Lay as to what was said during the conversation, denied Lay’s evidence its capacity as corroboration.
In my opinion it was open to the jury to accept Lay’s evidence as making it more probable that Lien had a conversation with the applicant on 24 April 2005 and that the applicant was crying and emotional at this time and that he made inquiries about a weapon as Lien alleged. It was capable of corroborating his testimony to that extent and the jury was properly directed. That evidence could also have been considered in combination with the other items of circumstantial evidence as corroborating Lien’s testimony. The contention that the evidence was incapable of corroborating Lien is not made out.
(3) The concrete pipe discovered at the Christmas Hills property
This item of evidence fell within the same genus as the DNA. The evidence of the discovery of the concrete pipe was said to corroborate Lien’s account that the applicant told him that he had placed the body in a concrete pipe (either in the forest in the ‘mountain’ or in ‘Melton’), a fact unknown to Lien or the police at the relevant time. Its probative value rested upon its possible consistency with Lien’s account of what the applicant had told him.
The trial judge carefully directed the jury’s attention to the difficulties associated with that evidence and about which no complaint is made. The jury were directed that if they considered it likely that the body of Ray Allen was stored in the pipe, the evidence of the pipe’s existence would be capable of supporting Lien’s evidence that the applicant told him that the body was in the pipe. As in the case of the DNA, this aspect of the direction was also unduly favourable to the applicant as it was unnecessary for the jury to be satisfied that the body had been in the pipe before the evidence could be employed as corroboration.
The issue for the jury was whether the finding of the pipe on the property, a fact unknown to Lien, was consistent with Lien’s account so as to make it more probable that he was told what he alleged. This evidence could also be considered in conjunction with the other circumstantial evidence of facts unknown to Lien which in combination could constitute corroboration of Lien’s account.
It was submitted on the appeal that as no blood or any other forensic material was uncovered and that many properties have concrete pipes on or in them it was not possible for the jury to find it likely that the body had been stored in the pipe. Accordingly, it was submitted that it could be ‘no more than speculation’ to say that the existence of a pipe at the property could be used by the jury in the manner directed by the trial judge.
I reject this submission. There were aspects of the evidence relating to the pipe from which it was open to the jury to infer that it supported Lien’s account. First, was evidence from Robert Gatt who was a Senior Sergeant of Police and a member of the Search and Rescue Squad. He was involved in searching the property and testified that the pipe was located after he noticed an area of ground that looked different to the surrounding area, in that the soil appeared to have been freshly turned and had no vegetation. Photographs of the property admitted into evidence, suggest it was a property of some size and so the evidence of him finding the pipe provides some support for the conclusion that the pipe had been recently accessed. Further, the location of the meeting at which this particular conversation occurred is significant. It represents the point at which the car in which the applicant was driving would have been able to turn East off the Hume Highway to travel in the direction of the Sumner family property at Christmas Hills. Were it not for that reason, on the Crown case, the applicant would have arranged to meet Lien at their usual meeting place in Footscray, a location which was closer and more convenient to both the applicant and Lien’s homes. Lien gave evidence that after the meeting the applicant drove to a point which was consistent with him intending to travel in the direction of his parent property at Christmas Hills. That evidence was not disputed.
In my view, these considerations provide a sufficient basis for the jury to rely upon the evidence of the pipe, whether in isolation or in combination with other circumstantial evidence, as providing corroborative support for Lien’s account.
(4) The identification evidence by Mr Glover
This evidence was of the same class as the DNA and the pipe. The evidence of Glover was left to the jury as providing potential corroboration of Lien’s account of the final confessional statement, in which the applicant had told him he had been to the bush to dispose of the body and the van had got bogged. It was also said to support Lien’s evidence that he observed that the van and the applicant’s clothes were in a muddy condition. If consistent with what Lien alleged the applicant told him, and being facts otherwise unknown to Lien, those facts made it more likely that the applicant said what was alleged. But the trial judge directed the jury in terms that if they came to the conclusion that the man Glover saw in the bush was the applicant, the evidence would be capable of supporting Lien’s account. For the reasons I have already given in relation to items (1) and (3), that direction was also unduly favourable to the applicant. The jury was entitled to act upon the consistency of such evidence with Lien’s account as bearing upon the probabilities that the applicant told Lien what was alleged. They were also entitled to view the combined effect of all the pieces of circumstantial evidence consistent with Lien’s account for that purpose.
Glover contacted police in response to the investigating police publishing a notice after Lien had provided them with his account. Glover gave evidence that he had towed a man with a van out of a bog on 7 May 2005. Glover was unable to identify the applicant’s photo from amongst photos on a photo board. He provided a composite face image which was admitted into evidence. That image was said to be of striking similarity to the applicant.
The trial judge directed the jury that if they were satisfied that the man who Glover saw with the van in the bush was Sumner, his evidence would be capable of corroborating Lien’s evidence to the extent that the applicant told Lien that he had been into the forest, in the van, to dispose of the body and got bogged.
The applicant contended that this evidence was incapable of providing corroboration for Lien’s evidence because the jury could not conclude that it was the applicant that Glover had observed. The applicant pointed to the fact that Glover described towing a man in a bog on 7 May 2005, a date outside the timeframe Lien suggested which was about (30 April 2005). Second, Glover gave an account of a van which did not have a rear window or any pipe work on the rear. This was inconsistent with the features of the van that the applicant was said by Lien to have been driving. Third, as I have said, he failed to identify the applicant from a photo-board. As a consequence, the applicant submitted that it would have been ‘speculation’ for the jury to conclude that Glover towed the applicant from the bog. If the jury could not be satisfied that the applicant was that man, then, they could not use that evidence as corroboration.
As I have said in dealing with items (1) and (3), this argument misconceives the character of this class of corroboration and examines this evidence in isolation. Putting those errors aside and assuming that it was necessary for the jury to make the finding which the applicant asserts, it was in my opinion clearly open to the jury to conclude on the balance of probabilities, that the applicant was the man Glover towed from the bog. The composite face image was rightly described as very compelling evidence. It bore a striking resemblance to the applicant. Despite differences in some respects in the description of the van by Glover and Lien, their descriptions were similar. Although Glover described the event as occurring on a later date than that stated by Lien, it was sufficiently close in its proximity to permit the jury to conclude that he was, nonetheless, describing a period which corresponded with Lien’s evidence. That is to say, the discrepancy in the date given by Glover was explicable as an error in memory. It was plainly open to the jury to conclude that Glover’s evidence concerned the applicant. It was evidence that tended to confirm Lien’s account. It was capable of satisfying the requirement stipulated by the trial judge and it was corroboration in the ways I have previously explained.
This ground is not made out.
Ground 2
By way of ground 2 the applicant contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.[35] The question raised by this contention is whether the jury must or was bound to entertain a reasonable doubt as to the applicant’s guilt. The applicant’s submissions on this ground were, in essence, that the witness Lien could not have been accepted by the jury in relation to the admissions said to have been made by the applicant. In my view the prosecution case viewed in its entirety was a strong one.
[35]See M v R (1994) 181 CLR 487.
It was admitted by the applicant that he had been looking for the deceased on the day he was last seen and that he agreed to meet the applicant in Shepparton at the time he was last seen. The jury had before it a written statement by the applicant in which he said that on 24 April he visited his friend (and co-accused) Benporath in Maroopna. He agreed also that he sought out Ray Allen on that day, claiming that he knew him as a marijuana smoker (through his brother) and that he sought him out for the purpose of acquiring some of that drug. Given the evidence that Benporath had access to a supply of the drug in Melbourne, the explanation of the applicant was not particularly compelling. As to the events of ANZAC Day, the 25th, he claimed that he again rang Ray Allen and asked again for drugs. Then, another 45 minutes later he rang again, and that he agreed to meet him at the Bi Lo Maroopna. The phone records showed repeated attempts to contact Allen during the course of the day. The applicant said in his statement that Ray promised to meet him at the Bi Lo in 15, 20 minutes. The applicant claimed that after realising 40-45 minutes had passed, he and Benporath drove past the Bi Lo but ‘there was no sign of Ray [Allen]’. He claimed to have then returned to Melbourne without meeting Allen.
The applicant’s contact with the deceased through those telephone calls was reflected in evidence of phone records led at trial. That he planned to meet the deceased at this time was further supported by witnesses before the jury. Evidence was led from Bianca Allen, Ray Allen’s sister, that she last saw her brother on 25 April 2005. She said she was at home with him and her grandmother on that. After a series of calls, he said to her that he was going to meet the caller at the Bi-Lo store in Mooropna. She testified that after Ray went missing she called the Sumner family to find out if they knew where Ray was. Evidence was also led from the grandmother who said that a male rang that day who asked for Ray Allen, and said his name was Jim or John. Under cross-examination she admitted that when she made her statement to the police she said ‘Jamie’. She said that later in the afternoon, and she heard Ray Allen say ‘who is this’ and then ‘Jamie’. She also said that she heard the Ray Allen tell Bianca that he was going to meet ‘Daniel’s brother’.
It was common ground between the parties that Ray Allen was seen by the witness, Robyn Atkinson, walking near to the Bi-Lo store at around 6pm. The overwhelming weight of evidence suggests that Ray Allen is deceased. He has not been seen since being sighted by Mrs Atkinson at about 6.00pm on Anzac Day 25 April 2005. He did not return home, he has not accessed his bank account or social security entitlements and despite police checks in Victoria and interstate, he has not been detected on any database or register. There is no evidence of any planning beyond his intention to meet with the applicant on that night.
Phone records show that the applicant called Lien, on Benporath’s mobile phone at 10.41 whilst en route to Melbourne for the purpose of meeting Lien at Somerton to obtain heroin. Lien described his meeting with the applicant and another man who alighted from the applicant’s car in a dark place off the highway. The DNA evidence provided corroboration of Lien’s claim that that Ray Allen was in the rear of the car. Lien’s evidence was that the applicant left him travelling in a direction which was consistent with him proceeding to the family home at Christmas Hills. Lien described the subsequent meetings with the applicant in which he told Lien that he had killed the boy and had stored the body in a pipe. There was evidence of a pipe on the property which corroborated Lien’s allegation as to what he was told. On a later occasion the applicant told Lien that he would have to move the boy’s body. The police were then making inquiries with the Sumner family as to whether they knew anything as to the whereabouts of Ray Allen. At a further meeting he told Lien that he had taken the body away and had got bogged in the bush. The evidence of Glover provided corroboration of that allegation.
Finally, significant evidence existed that the applicant had a motive to kill, provided by the claim by his younger brother Daniel to have been raped by Allen. Daniel Sumner believed himself to have been sodomised by Ray Allen and that information was in the knowledge of members of the Sumner family by 24 April 2005 at the latest.[36] There was evidence that the Sumner family were shocked and dismayed by the allegation of what had been done to Daniel. There was evidence that the applicant had called Ray Allen on the afternoon of 24th April. Lien testified that the applicant was emotional and distraught on the evening of the 24th April and wanted to kill the friend of Daniel who had raped him. Lay corroborated Lien’s evidence that the applicant was distraught and was inquiring about a weapon. Although it was pressed by the applicant’s defence counsel at the trial that there existed no conclusive evidence that the applicant was aware of this allegation prior to the disappearance of the deceased, such an inference was plainly open in the circumstances. The evidence of motive was also supported by the evidence of Damien Ballantine, a friend of Daniel who said that he had a conversation with the applicant when Daniel was in hospital and that he wanted to speak to ‘Ray [Allen]’ and sought information from Ballantine that Ray had moved to Sheparton and was living with his father. There were phone records from the Sumner house on or after the 24th April to various people named Allen in Shepparton. The evidence supported the inference that the applicant knew of the allegation being made by Daniel against Ray Allen prior to Allen’s disappearance.
[36]Salo T 285, Bedggood T 292, Popovski T 298, Collins T 307, Cross T 313–315.
Not surprisingly, it was acknowledged on the appeal that were the applicant to fail under ground 1, then the submissions under ground two would fall away. That concession was rightly made. The Crown case was a compelling one which plainly permitted the jury to reach the verdict which they did. This ground is not made out.
The application for leave to appeal against conviction should be refused.
I agree for the reasons given by Bongiorno JA that leave to appeal against sentence should also be refused.
MANDIE JA:
I agree with Redlich and Bongiorno JJA.
BONGIORNO JA:
I agree with Redlich JA as to the disposition of the applicant’s appeal against conviction for the reasons his Honour has given. I have nothing to add.
Appeal against sentence
The applicant sought leave to appeal against the severity of his sentence on two grounds. The first was that the trial judge failed to take into account as a mitigating factor the applicant’s ‘distress and human frailty’ in view of his belief that the deceased had raped his brother; the second that, in any event, the sentence was manifestly excessive and failed to have proper regard to the principle of totality.
Neither of these grounds has been made out. The basis of each of them was specifically referred to by the trial judge in his published sentencing remarks.[37] There is no need to repeat what his Honour said in any detail to demonstrate that they are without merit.
[37]R v Sumner [2008] VSC 176.
Distress and human frailty
In his sentencing remarks the trial judge specifically referred to the fact that the applicant believed that his brother has been anally raped by the deceased, although his Honour also found that it was unlikely that such a rape had in fact occurred. Counsel for the applicant in this Court conceded that the law does not
countenance vigilante conduct and that there can be no lawful justification or excuse for such behaviour. However, he also submitted that ‘… the law recognises that, when faced with such disturbing revelations, human frailty can be exposed and can act out of understandable anger and distress’.
Assuming such a principle exists, the difficulty with the application of it in this case is the degree of premeditation and planning in which the applicant engaged before killing the deceased and disposing of his body. The evidence before the Court was that he told Mr Lien on the evening of 24 April that he intended to find the deceased and kill him because of what he believed he had done to his brother. The applicant then spent the next day or so carrying out this plan; finding Allen, kidnapping him, killing him and subsequently disposing of his body. This activity involved the applicant in driving long distances and engaging in significant logistical planning. Whilst such activity may be not inconsistent with continuing anger – even rage – it did give the applicant ample time and opportunity to reflect on his decision and to reconsider it. On the evidence before the Court he probably had Allen in the vehicle he used for the kidnapping for some time before he killed him. At any point during that period he could have desisted from his original plan. He did not.
There is no basis for ameliorating a proper sentence in this case by any consideration of distress and human frailty. Murders are committed for a variety of reasons and none. This murder was a premeditated act of revenge for a perceived wrong to the applicant’s brother. It was, in effect, a vigilante killing. He took the law into his own hands, something which he had no right whatsoever to do.
In his sentencing remarks the trial judge referred to Brooking JA’s judgment in DPP v Whiteside and Dieber[38] where his Honour condemned vigilante action in no uncertain terms, adverting to the fact that such activity often involves violence ‘… inflicted on individuals who are quite innocent of any offence whatsoever’.[39] His Honour said: [40]
Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on ‘rumour and innuendo’, assaulted a fifth for ‘messing with kids’, the Court of Appeal endorsed the judge's description of the ‘vigilante action’ and said that it called for serious reaction from any court anxious to preserve the rule of law; R. v. Sheekey.[41] Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Attorney-General's Reference (Nos. 17 and 18 of 1994)[42] (‘That is what this case was about, people taking the law into their own hands. It has to be stopped’); R. v. Kennedy[43] (‘vigilante enterprises of this kind are simply not tolerated by the community’.); R. v. Demittis[44] (‘The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this Court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community.’); R. v. Brelsford[45] (‘Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.’)
These comments are apposite in the context of this case. This ground should not be upheld.
[38](2000) 1 VR 331.
[39]Ibid 339.
[40]Ibid.
[41][1996] EWCA 385.
[42](1995) 16 Cr App R (S) 418, 421.
[43][2000] QCA 48 (McMurdo P).
[44](Unreported, Queensland Court of Appeal, 29 May 1997), 5-6 (McPherson, JA).
[45](Unreported, Queensland Court of Appeal, 14 September 1995), 4 (McPherson JA).
Manifest excess: totality
The trial judge specifically referred to the sentence the applicant was undergoing at the time of his arrest as a matter to be taken into account in fixing an appropriate sentence for this offence. He did not simply add the sentence the applicant was serving to the sentence for this offence. He specifically imposed a lesser sentence because of the existence of the unserved period of the former sentence. Thus, he applied the principle of totality appropriately.
The applicant’s complaint is that notwithstanding the trial judge having adverted to totality the total effect of sentence arrived at is in the order of 23 years and 5 months, with a total non-parole period of 19 years. This, his counsel submitted, is a manifestly excessive sentence. He referred to a number of mitigating factors in support of this contention.
This ground must be rejected. The applicant’s action in killing the deceased merited condign punishment. The trial judge made no identifiable error in imposing the sentence he did and that sentence was not, itself, such as to suggest some underlying unidentifiable error. In the circumstances of this case it was well within the confines of an appropriate sentencing discretion.
Conclusion
The applicant should be refused leave to appeal.
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