The State of Western Australia v Coates - [2007] WASC 307

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- COATES [2007] WASC 307

CORAM: BLAXELL J

HEARD: 2 - 4, 8 - 12, 15 - 19, 22 - 26, 29 - 31 OCTOBER & 12 16 NOVEMBER 2007

DELIVERED : 19 DECEMBER 2007

FILE NO/S: INS 171 of 1999

BETWEEN: THE STATE OF WESTERN AUSTRALIA
State
AND
MARTIN GRAEME COATES
Accused

Catchwords:

Criminal law and procedure - Trial by judge alone - Indictment alleging wilful murder - Prosecution case dependent upon accomplice's evidence - Limited corroboration of accomplice by direct evidence - Extent of corroboration which arises by way of inference from circumstantial evidence

Criminal law and procedure - Admissibility of hearsay statement made by alleged cooffender in furtherance of common unlawful purpose

Criminal law and procedure - Whether a 'Jones v Dunkel' inference arises from prosecution's failure to adduce evidence which may have contradicted its principal witness

Legislation:

Criminal Code (WA), s 7

Result:

Verdict of guilty of wilful murder

Category: B

Representation:

Counsel:

State: Mr S E Stone & Ms A J Burrows
Accused: Mr L M Levy & Ms A L Capper

Solicitors:

State: Director of Public Prosecutions (WA)
Accused: Legal Aid (WA)

Case(s) referred to in judgment(s):

Ahern v The Queen (1988) 165 CLR 87
Baskerville [1916] 2 KB 658
Borg v R [1972] WAR 194
Doney v The Queen (1990) 171 CLR 207
Dyers v The Queen (2002) 210 CLR 285
Edwards (1993) 178 CLR 193
Galluzzo (1986) 23 A Crim R 211
Humphry v The Queen [2003] WASCA 53
Johns v The Queen (1980) 143 CLR 108
Jones v Dunkel (1959) 101 CLR 298
Ling (1982) 6 A Crim R 429
Nanette [1982] VR 81
Punevski v The Queen [2000] WASCA 71
R v Demirian [1989] VR 97
R v GEC (2001) 3 VR 334
Royall v The Queen (1991) 172 CLR 378
RPS v The Queen (1999 ‑ 2000) 199 CLR 620
Thorne (1977) 66 Cr App R 6
Tripodi v The Queen (1961) 104 CLR 1
Ward v The Queen (1997) WAR 68

Introduction................................................................................................................................ 5
An overview of the prosecution case.......................................................................................... 5
The defence case....................................................................................................................... 11
The general principles of law that apply.................................................................................. 12
Rulings on particular legal issues that have arisen during the trial.......................................... 20

Admissibility of hearsay statements made in furtherance of the alleged crime........... 20
Whether an adverse inference arises from the prosecution's failure to call certain evidence 21
The admissibility of the video record of interview of Mr X........................................ 24

Background circumstances that are largely common ground.................................................. 25
Evidence as to the alleged incident at Gnangara Pine Plantation............................................ 27
The evidence of Mr X............................................................................................................... 28
Evidence from witnesses associated with Coates, Hoy or Nicholls......................................... 39
The evidence of motel staff...................................................................................................... 41
The medical evidence............................................................................................................... 44
The toxicological evidence....................................................................................................... 47
Other forensic evidence............................................................................................................ 50
Records of telephone calls on 22 and 23 August 1998............................................................ 51
The intercepted telephone call on 25 September 1998............................................................. 54
The arrest and interview of Coates........................................................................................... 56
Evidence of further intercepted telephone conversations......................................................... 60
The evidence as to the alleged alibis........................................................................................ 64
The evidence of the defence witnesses..................................................................................... 66
Mr X's demeanour as a witness................................................................................................ 67
Other factors relevant to the assessment of Mr X's credibility................................................. 68
The extent to which Mr X's version of events is corroborated................................................. 71
Anomalous facts which cannot be explained by Mr X's evidence........................................... 79
Whether Mr X's evidence is reliable........................................................................................ 82
Findings of fact......................................................................................................................... 94
Conclusions (as a matter of law) and verdict......................................................................... 101

BLAXELL J:

Introduction

In this matter I have conducted a trial of the accused by judge alone on an indictment alleging that:
(1)On 23 August 1998 at Rivervale Martin Graeme Coates wilfully murdered Clare Garabedian.
(2)And in the alternative to count (1) on 23 August 1998 at Rivervale Martin Graeme Coates murdered Clare Garabedian.
The accused was first charged with this offence in October 1998. At that time there were three other co‑accused being Mr X, Amanda Kayelene Hoy, and Thomas Nicholls. Subsequently Mr X pleaded guilty to wilfully murdering Clare Garabedian, and became the main prosecution witness against his co‑accused.
The trial of Coates, Hoy and Nicholls on a joint indictment proceeded before a judge and jury in October 2000, and all three accused were convicted of wilful murder. They then appealed from those convictions to the Court of Criminal Appeal but their appeals were dismissed. Nicholls and Coates took further appeals to the High Court from the judgment of the Court of Criminal Appeal. In February 2005 the High Court dismissed Nicholls' appeal but upheld Coates' appeal, as a result of which the latter's conviction was quashed and an order made for a new trial.
It is that re‑trial that has proceeded before me as judge alone and in respect of which I must now deliver my verdict.

An overview of the prosecution case

During 1998, Martin Coates and Amanda Hoy were living together and dealing in illicit drugs from a house in Bassendean which they shared with Thomas Nicholls. One of their customers was the 21‑year‑old Clare Garabedian who was a heroin addict working as a street prostitute in order to finance her habit.
Ms Garabedian regularly visited the Bassendean house, and on one of those occasions while using the bathroom, she stole a bottle of perfume belonging to Amanda Hoy. It is the State's case that this minor act of petty theft led to a chain of snowballing events culminating in the murder of Ms Garabedian. When the theft was discovered Martin Coates and Amanda Hoy interrogated the two women to determine which of them was the thief. They then deprived Ms Garabedian of her liberty and took her to Gnangara Pine Plantation where they assaulted her.
Ms Garabedian complained to the police about the incident, following which Coates and Hoy were jointly charged with offences of deprivation of liberty, unlawful assault, and unlawfully threatening to kill. Clare Garabedian was the only prosecution witness capable of implicating Coates and Hoy as having committed these offences. At that time Martin Coates was on parole and subject to a sentence of 4 years' imprisonment that had been imposed on 19 April 1996. He 'owed' 533 breach of parole days, and if convicted of the alleged offences against Ms Garabedian, faced a return to prison for that length of time.
Coates and Hoy first appeared in court on those charges on 31 July 1998, and it was approximately three weeks later (on 23 August 1998) that Ms Garabedian was found dead in a motel room at Rivervale. It is the prosecution case that Ms Garabedian was murdered, and that her death was arranged by Coates and Hoy in order to thwart the prosecution that was then pending against them.
It is further alleged that the plan to murder Clare Garabedian was discussed at the Bassendean house on the evening of Friday, 21 August 1998 while Coates, Hoy, Nicholls and Mr X were all present. Mr X was a tattooist and drug addict who was regularly obtaining drugs from Coates and Hoy, and on 21 August 1998 he was visiting their house to complete a tattoo on Coates' right arm. Mr X had not previously met Clare Garabedian, and it was agreed that he would pick her up while posing as a client for sexual services. He would then take her to a motel room or brothel and provide her with a lethal injection (or 'hot shot') of heroin.
It is also alleged that this plan was implemented on the following evening of Saturday, 22 August 1998. All four were present at the Bassendean house once again, and Mr X agreed that he would pick up Clare Garabedian that same night. A telephone call was then made to a brothel associated with Ms Garabedian in an effort to track down her whereabouts. As a result, a decision was made to search for her in the vicinity of Hyde Park in Northbridge.
It is the prosecution case that the others present then supplied Mr X with the various items that he would require to carry out the plan. Thomas Nicholls provided him with a change of clothes. Amanda Hoy provided him with a mobile telephone, the keys to her car, and $200 cash to pay for Ms Garabedian's services. Coates gave Mr X a 1 gram bag of heroin to use as the 'hot shot'. Mr X himself obtained a syringe or syringes from the bathroom.
Hoy and Coates then departed from the Bassendean house in the latter's vehicle, with Mr X following in Amanda Hoy's car. It is alleged that the two vehicles travelled in convoy so that Hoy and Coates could identify Clare Garabedian to Mr X (via the mobile telephone) when the two vehicles reached Hyde Park.
It is the prosecution case that the first part of the plan was successfully implemented in that Clare Garabedian was found walking along a street near Hyde Park, was identified to Mr X, following which he lured her into his car. Mr X then drove Ms Garabedian to the Great Eastern Motor Lodge on Great Eastern Highway, Rivervale where she booked them both into room 18. Mr X had previously offered to provide drugs to Ms Garabedian as part payment for the proposed sexual services, and as soon as they entered the motel room he gave her the bag of heroin as well as a syringe so that she could inject herself.
Although Clare Garabedian subsequently self injected herself with heroin from the bag at least twice, it is alleged that the only immediate effect was that she went into a drug induced stupor (which Mr X describes as being 'on the nod'). It is also alleged that while Ms Garabedian was 'on the nod', Mr X left the motel room and telephoned Hoy and Coates from a public telephone box to tell them where he was and what was happening. Arrangements were then made for Mr X to be supplied with a further 'hot shot' of heroin, and he was told that a parcel would be left behind the front wheel of Ms Hoy's car which he was to park in a side street near the motel.
It is alleged that Mr X then returned to the motel and parked the vehicle in a side street as arranged. He later retrieved a sunglasses case from underneath the car which contained a ready to use syringe of heroin. It is the State's case that Mr X by then had reservations about killing Ms Garabedian, and for that reason injected a large proportion of the contents of the new syringe down the sink. He then placed the syringe with its remaining contents beside Clare Garabedian (who was still 'on the nod') and allowed her to inject herself a third time. This third injection did not appear to have any immediate additional effect upon Ms Garabedian.
It is alleged that the next significant thing to occur was that Mr X answered a call on the motel room telephone. Coates was on the other end of the line and asked Mr X whether or not he had 'done it yet'. Nicholls also then spoke on the telephone and it was clear to Mr X that the others were both unhappy with the way in which events were unfolding.
It is the prosecution case that shortly after that telephone call Coates and Nicholls went to room 18 at the Great Eastern Motor Lodge and were let in by Mr X. Clare Garabedian was unaware that Coates and Nicholls had entered the room because she was still 'on the nod'. Coates and Nicholls then went into the bathroom and closed the door. Not long afterwards Nicholls left the motel room, but returned some time later with a large syringe.
It is alleged that when Nicholls entered the room a second time Clare Garabedian started to stir, looked up, and saw that he and Coates were there. She 'made a run' for the front door but Coates grabbed her and placed her in a headlock. Coates then shook her by the neck and forced her to the floor.
It is the State's case that there was then a struggle on the floor during which Coates straddled Clare Garabedian while Nicholls held a pillow over her face. Coates also attempted to inject Ms Garabedian's right arm with the large syringe but was unable to find a vein. Mr X then took hold of the syringe and injected Ms Garabedian in the left arm, following which she ceased to struggle. It is alleged that before leaving the motel, the three men 'staged' a heroin overdose by tidying up the room and placing all incriminating items inside a pillow case which they took away with them.
Employees of the Great Eastern Motor Lodge have testified as to Ms Garabedian checking into room 18 at 10.14 pm, and about the suspicious movements of a vehicle (allegedly Mr Nicholls' utility) as well as two men during the early hours of 23 August 1998. Later that morning, motel cleaning staff discovered Ms Garabedian's body in room 18.
After the police had attended, a forensic pathologist was called to the scene. The pathologist later conducted a post mortem examination which revealed minor injuries consistent with a struggle, signs consistent with suffocation, various vene‑puncture wounds, bruising in the arms, and a red mark on the left ankle. Following toxicological analysis of body samples, the cause of death was ultimately determined to be 'the combined effects of neck and airway compression in a woman with acute opiate toxicity'. The toxicological analysis also established that at least four of the many vene‑puncture wounds on the body were injection sites for heroin, and that the largest of these (in the left arm) had most probably occurred within minutes of death.
The State acknowledges that proof of the prosecution case against Coates depends upon my acceptance of Mr X as a truthful and reliable witness. In this regard, there is evidence (including that from the medical and forensic experts as well as from telephone intercepts and telephone records) which supports some aspects of Mr X's version of events. However, Mr X is the only prosecution witness who implicates Martin Coates as being present within the motel room and this aspect of his evidence is uncorroborated.
The prosecution also relies upon evidence of admissions made by Martin Coates in the course of two video records of interview with police on 7 October 1998. In broad terms, these admissions (and exculpatory explanations) were to the following effect:
(a)On the evening of Saturday 22 August 1998, Coates was at the Bassendean house and overhead Mr X and Nicholls discussing a plan to kill Clare Garabedian with an injection of heroin. Mr X said it would be easy for him to pose as a client, pick up Ms Garabedian in the Palmerston Street area, and then take her to a motel room.
(b)Because Mr X did not know Ms Garabedian, Nicholls was 'going to show him or something' (viz. identify her to him).
(c)Coates had 'no input whatsoever' into the discussion between Mr X and Nicholls.
(d)While discussing the plan with Nicholls, Mr X was also 'on the phone to some bloke, and he was talking on the phone about it'. He was going to get this person to book a motel room.
(e)Coates thought that the discussion about killing Clare Garabedian was 'just talk' and did not take it seriously. He and Hoy then went to bed and did not see Mr X again until the following day.
The prosecution also relies upon evidence of statements made by Martin Coates during telephone conversations which were intercepted by police before and after his arrest. The meaning to be attributed to some of these statements is a question which requires careful consideration, but subject to this qualification, they are capable of amounting to admissions to the following effect:
(a)(In exhibit 66.1):
(i)By murdering Clare Garabedian, Mr X had 'done the righty' in order to help Coates and Hoy out.
(ii)The fact that Coates' and Hoy's door hadn't 'even been knocked on' by police had been part of 'the plan'.
(b)(In exhibit 66.2):
(i)Prior to 22 August 1998 Coates had joked with others that it would be good for Clare Garabedian 'not to be around'.
(c)(In exhibit 66.3):
(i)On the night of the murder, Mr X had asked for Hoy's car keys and then departed the Bassendean house in her vehicle.
(ii)Not long afterwards, Hoy left with Nicholls 'for a drive in his ute'.
(d)(In exhibit 66.5):
(i)On the night of the murder Mr X had borrowed Hoy's car.
(ii)An hour to an hour and a half later Mr X had telephoned and 'wanted something dropped off to a hotel room'. Hoy then went with Nicholls (in the latter's ute) to Rivervale to drop it off.
(e)(In exhibit 66.10):
(i)On the night of the murder, Coates went to Rivervale but did not go to the motel room. He was 'on the opposite side of Great Eastern Highway'.
(ii)At that time Nicholls and Hoy were 'at the room'.
(iii)Coates had gone to Rivervale 'to get something off' Hoy 'that someone wanted to buy'. Hoy was 'in the car park' but she came across Great Eastern Highway to meet Coates.
(f)(In exhibit 66.12):
(i)On the night of the murder Coates and Hoy went to Rivervale 'the first time' in order 'to drop the money off him for the room'.
(ii)The second time, Nicholls and Hoy went to Rivervale to drop off 'speed'.
(iii)The third time, it was Coates and Hoy 'across the road'.
An important part of the prosecution case comprises records from Telstra and Optus of calls made to or from mobile telephones and public telephone boxes allegedly used by Coates, Hoy, Nicholls or Mr X on 22 and 23 August 1998. These records include the locations of cell towers via which mobile telephone calls were transmitted or received. Additionally, there is evidence of a technical or expert nature capable of supporting inferences as to the general geographical location of those mobile telephones when each call was made. It is fair to describe this area of the evidence as being broadly consistent with Mr X's version of events, but nevertheless revealing some anomalies.
The State further contends that Coates told lies during his video record of interview, and also attempted to fabricate two false alibis as to his whereabouts during critical periods on the night of the murder. In respect of the first alibi Coates enlisted the aid of his sister and brother‑in‑law in asserting that he had remained at the Bassendean house until about midnight. For the second alibi Coates asked Ms Kristie‑Lisa Elvy (one of his regular drug customers) to verify that he had delivered drugs to her at the Bayswater Hotel at some time between 4.00 am and 5.00 am. The State contends that the alleged lies, and the attempts to fabricate the allegedly false alibis, all constitute implied admissions of guilt.

The defence case

The accused has elected not to give evidence but relies upon the various exculpatory statements to be found in his video record of interview. It is also the defence submission that I cannot be satisfied that Mr X is a truthful and reliable witness, and accordingly should reject his evidence which implicates Coates in the murder of Clare Garabedian.
I have been referred to many anomalies in Mr X's evidence and in the evidence of witnesses generally. By reason of these it is submitted that I cannot be satisfied beyond reasonable doubt that Mr X did not act alone. It is also suggested that it would have been relatively easy for Mr X to commit the murder on his own given Ms Garabedian's drug induced condition. Alternatively, if I am satisfied that more than one pair of hands committed the crime it is said that the evidence leaves open the possibility that it was Nicholls and/or Hoy who were involved.
The defence has also called evidence from two former prisoners who spent time in custody with Mr X. They have testified as to statements allegedly made by Mr X which are said to be inconsistent with his evidence at this trial.

The general principles of law that apply

Section 120(2) of the Criminal Procedure Act 2004 (WA) requires me to state the principles of law that I apply in coming to my verdict. In the particular circumstances of the present case, most of the relevant legal principles are so fundamental as to be almost trite. Nevertheless it is necessary that they be stated.
The starting point, and the most fundamental guiding principle of our system of criminal justice, is the presumption of innocence. By pleading not guilty, the accused has put in issue of all the facts that go in law to make up the charge (and the alternative charge) against him. That being so the State bears the burden of proving every element of the charge. Because the charge against the accused is a criminal one, the State has a very high standard of proof to meet which is proof beyond reasonable doubt.
Accordingly, before I can return a true verdict of guilty against the accused the prosecution must satisfy me beyond reasonable doubt that he is indeed guilty. I must be satisfied beyond reasonable doubt that the State has proven each and every one of the facts or elements which go to make up the charge. This does not mean that the State must prove each and every fact alleged by prosecution witnesses. In order to establish guilt, all that need be proven beyond reasonable doubt are the elements of the alleged offence. The presumption of innocence also means that if the prosecution fails to bring sufficient evidence or if I am left with a reasonable doubt in my mind as to the guilt of the accused, then the only true verdict is not guilty.
Another effect of the presumption of innocence is that the accused does not have to prove his innocence. An accused is entitled to remain silent and still be acquitted if the prosecution fails to prove its case to the required standard. In the present case, the accused has exercised this right of silence by electing not to give evidence, and that is not something that can give rise to any adverse inference against him.
Theoretically there are four possible verdicts on the indictment against the accused, and these are:
(a)Guilty as charged in court 1, (ie guilty of wilful murder);
(b)Guilty of the alternative charge in count 2, (ie guilty of murder);
(c)Guilty of manslaughter; or
(d)Not guilty.
However in the particular circumstances as revealed by the evidence in this case, I consider that there are really only two possible verdicts, namely, guilty of wilful murder or not guilty. In my opinion, there is no reasonable view of the evidence which would leave open verdicts of either guilty of murder or guilty of manslaughter.
If I am to find the accused guilty of wilful murder, the prosecution must satisfy me beyond reasonable doubt as to the following elements of that offence:
(a)That Clare Garabedian was unlawfully killed.
(b)That the accused committed that act of unlawful killing or was a party to the act of unlawfully killing Clare Garabedian by another.
(c)That at the time of that unlawful killing, the accused intended to cause the death of Clare Garabedian.
As to the first element, the law provides that any person who causes the death of another directly or indirectly by any means whatever is deemed to have killed that other person. A killing is unlawful unless it is authorised, justified or excused by law. There is no suggestion in the present case that the killing of Ms Garabedian was lawful.
As to the second element, it is not alleged in this case that a direct act by the accused caused Clare Garabedian's death (ie, that he smothered her with the pillow or injected her with the heroin). In this regard it is common ground that Mr X was a principal offender in causing the death of Clare Garabedian by injecting her with heroin. The State also alleges that Thomas Nicholls was a principal offender in that he suffocated her with a pillow.
The State also alleges that the accused's role in the killing was that he counselled and procured that act while at the Bassendean house, supplied heroin and assisted with the identification of Clare Garabedian for the purpose of enabling that act to happen, and later went to the Rivervale motel room and actively assisted in killing of Ms Garabedian by holding her down on the floor while she was smothered with a pillow and injected with heroin. Accordingly, the second element of the alleged offence will only be established if I am satisfied beyond reasonable doubt that the accused did one or more of these things and thereby made himself a party to the unlawful killing.
When (as in the present case) it is alleged that more than one person was involved in the commission of a crime s 7 of the Criminal Code (WA) deems certain persons 'to have taken part in the offence and to be guilty of the offence', namely:
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
(d)Any person who counsels or procures any other person to commit the offence.
A person can only be criminally liable under s 7(b), s 7(c) and s 7(d) above, if at the material time he or she knew that the alleged offence was then being committed, or (where the acts of complicity occur in advance) might be committed as a result of what was expressly or tacitly agreed with the principal offender (Johns v The Queen (1980) 143 CLR 108; Ward v The Queen (1997) WAR 68, 75 ‑ 76). Consequently, the test for criminal liability under s 7 is:
[S]ubjective … and the person charged as accessory should not be held liable for anything but what he either expressly commanded or realised might be involved in the performance of the project agreed upon. It would, on this principle, therefore be a question of evidence to satisfy the jury that the accused did contemplate the prospect of what the principal has in fact done. [Borg v R [1972] WAR 194, 199]
So long as the crime committed by the principal offender is one which was within the contemplation of the alleged party to that offence, it does not matter that it was committed in a different way from that intended. In Royall v The Queen (1991) 172 CLR 378 at 392, 400, 411 and 452 a majority of the High Court approved the following statement of principle:
If a person creates a situation intended to kill and it does kill it is no answer to a charge of murder that it caused death at a time or in a way that was to some extent unexpected. [R v Demirian [1989] VR 97, 113]
With regard to s 7(d), the 'procuring' of an offence is something different from 'counselling' it to happen. Counselling involves words or action on the part of the alleged party to the offence which positively encourages the principal offender to commit it. To 'procure' means to produce by endeavour. In Humphry v The Queen [2003] WASCA 53, the Court of Criminal Appeal approved the trial judge's direction in that case that 'you procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening'.
The third element that must be proven beyond reasonable doubt is that at the time of Ms Garabedian's unlawful killing, the accused intended to cause her death. That intention can only be established by way of inference from all of the relevant circumstances including what the accused allegedly said, what he allegedly did, and the alleged existence of a motive. Accordingly, this third element will only be established if I am satisfied that the existence of that intent is the only reasonable inference in all of the circumstances as found.
There is a considerable array of evidence which is capable of satisfying me beyond reasonable doubt as to the first element of the alleged offence. Proof of the second and third elements is very much dependent upon a finding that the evidence of Mr X implicating the accused in what occurred is truthful and reliable. Mr X is of course an accomplice, and therefore his evidence falls into a special category which requires that I give myself the following warning.
Experience over the years has shown that the evidence of an accomplice can often be unreliable. Human nature being what it is, an accomplice might be motivated to shift or spread the blame and for that reason to give false evidence against another accused. That is particularly so in circumstances such as the present where the accomplice's testimony is given under agreements with the State providing for reductions in his sentence, and when that sentence was previously subject to review in the event of non‑cooperation.
For these reasons it is dangerous to convict an accused person upon the uncorroborated evidence of an accomplice, and I must look for any other evidence which might corroborate what Mr X has had to say. Corroboration is simply independent evidence which tends to confirm Mr X's version of events and to implicate the accused in having committed the alleged offence.
This does not mean that I cannot accept Mr X's evidence if it is uncorroborated. I am entitled to act upon his uncorroborated testimony if after scrutinising it with great care and paying heed to the warning, I am thoroughly satisfied as to its truth and accuracy. On the other hand, if there is corroboration for Mr X's testimony that does not mean that I should necessarily accept it, because his evidence as an accomplice must still be treated with great caution.
In view of the critical importance of Mr X's evidence in the present case, I will elaborate on the legal principles which govern the nature of corroboration. The classic statement of the law as to corroboration is to be found in Baskerville [1916] 2 KB 658, where Lord Reading CJ said:
We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it (667).
It is not a requirement of corroboration that it should confirm the detailed account of the witness to be corroborated. What is required is corroboration of 'two broad factors', namely that a crime was committed and that the accused person committed it (Galluzzo (1986) 23 A Crim R 211, 215). It is also unnecessary that the corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In respect 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 (Doney v The Queen (1990) 171 CLR 207, 211).
It is also well settled that corroboration may be in the form of circumstantial evidence (Doney (211)) and that it can 'be found in a chain of circumstances which is inconsistent with [the accused's] innocence' (Nanette [1982] VR 81, 85). Even though particular circumstances looked at individually may be 'little more than straws in the wind', when taken together they may well 'present a pattern' in which corroboration can be found (Galluzzo (216)).
A lie told by the accused can be used as part of a chain of evidence constituting corroboration, but only if 'it reveals a knowledge of the offence or some aspect of it and … was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence' (Edwards (1993) 178 CLR 193, 210). Similarly, an accused's fabrication of a false alibi can be corroborative of an accomplice's evidence 'provided that the jury is satisfied that the falsity has not arisen from mistake and that the fabrication has not come about through panic or stupidity' (Thorne (1977) 66 Cr App R 6, 18).
Yet another circumstance which can be linked with other circumstances to establish corroboration is evidence of the accused's motive in committing the crime (Ling (1982) 6 A Crim R 429, 436 ‑ 439).
In my opinion the accomplice warning I have referred to is especially important when a judge alone is deciding guilt, and the issue of guilt essentially turns upon the credibility of the accomplice. In the present instance Mr X testified over a long period, and for most of that time he was subject to a very thorough and searching cross‑examination. Because of his demeanour during that cross‑examination, I formed some fairly strong (albeit tentative) views as to his credibility; but unlike a juror, I cannot share or discuss those views with 11 other people who have had the same opportunity of hearing and seeing the evidence.
The determination of a witness' credibility on the basis of demeanour does not require the exercise of any legal skill, and is not something which can be the subject of reasoned analysis. It is largely a semi‑intuitive process, and most ordinary members of the community have the life experiences which equip them to make such an assessment. The great advantage of the jury system is that 12 randomly chosen people of different ages and backgrounds collectively decide such issues of credibility. As the High Court stated in Doney (214):
[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experiences of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.
When 12 people unanimously agree on the credibility of a critical witness there can be the highest degree of confidence that that assessment is correct. However, in a trial without a jury only one person makes that assessment, and in my view it follows that exceptional care must be taken before accepting an accomplice's evidence.
In the course of their evidence Mr X and other witnesses were referred to statements they previously made to the police or during their testimony at the preliminary hearing or first trial. Needless to say, those prior statements or testimony are not evidence before me unless they were adopted or agreed to by the witness in the present trial. However, to the extent that any prior statement or testimony is inconsistent with evidence in the present trial it is relevant to my evaluation of the particular witness. The fact that a witness has said something previously which contradicts what he or she has said in this trial, can, and indeed should be used by me in deciding whether or not that witness' evidence can be safely accepted as being truthful and reliable.
Obviously, the assessment of each witness' credibility will be matter of critical importance in arriving at my findings of fact. It may be that I accept the whole of a witness' evidence or that I reject it all. It may also be that I accept part of what a witness has had to say but reject the rest. The fundamental question in relation to each witness, and in relation to each matter the subject of his or her testimony, is whether or not I believe the evidence. The answer to this question will turn on my evaluation of a number of factors, including the truthfulness of the witness, the reliability of the observations made by him or her at the material time, and the accuracy of his or her recollections (which in this case is after a very long lapse in time).
Matters to be taken into account in this evaluation include the witness' general demeanour whilst testifying, the consistency of the evidence (both within itself and with other evidence in the trial), personal characteristics such as powers of expression and apparent levels of intellect, the possible impact of alcohol or drugs, and the emotional state of the witness at the material time. In the end, I should carefully assess all relevant matters and decide whether or not I can accept the witness' evidence on a particular issue as being truthful and correct.
In this case there is also evidence of admissions (either express or implied) made by the accused in the course of his video records of interview or during telephone conversations which were intercepted by the police. However, some of the accused's statements which were admitted into evidence are of an exculpatory kind. In these circumstances I am obliged to have regard to the whole of the relevant statements, not just to those admissions which are adverse to the accused, but also to those portions which may be favourable to him.
In this case, the prosecution also relies upon alleged lies by the accused during his video records of interview which are said to show a consciousness of guilt. I can only find that any of those statements is inconsistent with innocence and constitutes an implied admission of guilt if I am satisfied as to a number of things. The first requirement is that there must be independent evidence to prove that the particular statement was indeed a lie. Secondly I must be satisfied that the lie was a deliberate one (and not for example a slip of the tongue, a mistake, or the result of factors such as confusion or intoxication at the material time). Thirdly the lie must relate to a material issue which is of significance in respect of the accused's guilt or innocence. Lastly I must be satisfied that the accused's motive in telling the lie was a realisation of his guilt of the offence in the indictment and a fear of telling the truth (and not due to causes such as embarrassment, panic, or a desire to escape an untrue accusation). It is only if I am satisfied as to those four things that I am entitled to treat the lie as evidence helping to establish the guilt of the accused.
Similar considerations apply to the evidence of alleged attempts by the accused to fabricate false alibis. I should only accept the evidence of these matters as implied admissions of guilt if I am satisfied that there is independent evidence to show that the claimed alibis were false, that the accused deliberately attempted to fabricate the false alibis, that the claimed alibis related to material issues, and that the accused's motive in fabricating the alibis was a realisation of his guilt (and not for example a desire to escape an untrue accusation).
In reaching my findings of fact I am entitled to and certainly will draw inferences as to what happened at material times. I can only draw such inferences from facts which I have found in the first place to be established. There is simply no room for speculation, conjecture, or for looking for theories unsupported by the evidence. Moreover, before drawing an inference against the accused, I must be satisfied that it is the only inference which can reasonably be drawn consistent with the proven facts. If I consider that there might be an alternative inference available which can be reasonably drawn and which is open on the proven facts, then I must not draw any adverse inference against the accused.

I must also limit my findings of fact to those that are established by the evidence. At the commencement of the trial I informed counsel that I had not read any of the depositions or transcripts of previous proceedings because I did not want to contaminate my memory of the evidence. Accordingly, I will have regard to those other materials only to the extent that they have been introduced into evidence in the present trial. Needless to say, I must also disregard newspaper reports and any other external sources of information that I may have seen or heard which are not evidence in this trial.
Finally, in coming to my verdict, I must guard against the effect of any prejudice or sympathy that I may feel towards anyone involved in this case. It would be very easy to be prejudiced against the accused by reason of the evidence I have heard as to his drug dealing and general character; but he is not on trial for his lifestyle or for other offences that he has committed. It would also be understandable if I feel sympathy for Ms Garabedian and her family. However, my duty is to put aside such feelings of prejudice or sympathy and to assess the question of the accused's guilt or innocence of the charge in the indictment objectively and dispassionately.

Rulings on particular legal issues that have arisen during the trial

Admissibility of hearsay statements made in furtherance of the alleged crime

On 29 October (ts 5262) I reserved my decision as to the admissibility of certain evidence from the witness Sharon Beattie, and went on to receive that evidence provisionally.
The evidence in question is to the effect that Nicholls telephoned Ms Beattie on the evening of 22 August 1998 and asked that she come to the Bassendean house to replace him as babysitter for Hoy's 3‑year‑old son (whom I shall refer to as 'the infant'). The reason that Nicholls gave for this request was that he had to leave the house to take some replacement mobile phone batteries to 'Marty and Mandy'. (If admissible, this evidence would corroborate Mr X's evidence that the battery on the mobile telephone that Hoy had given him had gone flat.)
The prosecution contends that this evidence of what Nicholls said is admissible under the principle in Tripodi v The Queen (1961) 104 CLR 1, 7. In Ahern v The Queen (1988) 165 CLR 87, the High Court expounded on that principle as follows:
Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co‑conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant (100).
This so called 'co‑conspirators rule' can also apply in a trial for a jointly committed substantive offence, where the alleged crime is said to have been committed pursuant to an agreement, even though the accused is not also charged with conspiracy (Tripodi (6 ‑ 7).
In Punevski v The Queen [2000] WASCA 71 [38] ‑ [41], Anderson J observed that two things must be established before the utterances and acts of the other parties become admissible against an accused who was not present. Firstly, there must be evidence of an arrangement or combination for an unlawful purpose of the same general character as the offence charged. Secondly, it must be made to appear (by independent evidence) that the accused was a participant in that unlawful arrangement or combination.
In the present case, it is alleged that Coates, Hoy, Nicholls and Mr X combined for the unlawful purpose of arranging for Mr X to take Clare Garabedian to a motel room and kill her. It is also alleged that in order to affect this purpose, it was necessary that there be a means of communication between Coates and Hoy in one vehicle, and Mr X in another. For this reason, Mr X was provided with a mobile telephone, and when the battery in that telephone allegedly went flat, it was necessary for Nicholls to bring a replacement battery from the Bassendean house to Coates and Hoy in Northbridge. Nicholls was only able to perform that task if he could obtain a replacement babysitter, and he accordingly telephoned Ms Beattie.
If those facts are established, it necessarily follows that the reason given by Nicholls to Beattie as to why he needed a replacement babysitter was an utterance made in furtherance of the alleged unlawful combination between him and the others. As will become apparent towards the end of these reasons for decision, there is independent evidence to establish that Coates was a participant in that unlawful combination. Accordingly, I rule that the evidence is admissible.

Whether an adverse inference arises from the prosecution's failure to call certain evidence

The defence asks me to draw an adverse inference against the prosecution (pursuant to Jones v Dunkel (1959) 101 CLR 298) by reason of its failure to lead evidence identifying the callers (or the subscribers of the relevant telephone numbers) in respect of the following two telephone calls:

Date Time of Call Number making call Number receiving call Length of call

22.08.98 23:44:02 9375 1461 #846 1 min. 26 secs.

23.08.98 08:51 9344 7695 93623611 Great Eastern Motor Lodge 1 min. 29 secs.

I will be explaining the significance and relevance of these two telephone calls when I summarise the evidence (at [288] below). All that matters for present purposes is that the record of each call is an anomalous fact which is inconsistent with Mr X's version of events. It is also reasonable to infer that the existence of the record of each call presented an obvious line of enquiry to the investigating police.

In the present trial there is not any evidence to indicate whether or not those calls were ever investigated. I also do not know whether any question concerning the identity of each caller or subscriber was asked of a relevant police witness at the preliminary hearing or the first trial. (However I assume that counsel would have informed me of this if it had occurred.) Notwithstanding this lack of evidence, the fact and significance of each telephone call would have been readily apparent to the defence upon close scrutiny of the depositions at any time over the past eight years. In all of these circumstances, the defence contends that I should draw a 'Jones v Dunkel' inference that the evidence in relation to each call would not have assisted the prosecution case.
On the present state of the authorities, there is only limited scope for the application of the Jones v Dunkel principle in criminal trials. Because of the right to silence, it is usually inappropriate to draw an inference against an accused by reason of any failure to call evidence (RPS v The Queen (1999 ‑ 2000) 199 CLR 620, 632 ‑ 633). Similarly, any failure by the prosecution to call a witness will rarely justify a Jones v Dunkel inference. In Dyers v The Queen (2002) 210 CLR 285, Gaudron and Hayne JJ (with whom Kirby J agreed) held:
[A]s a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was a breach of the prosecution's duty to call all material witnesses (291).
The following 'deep-seated reasons' (as outlined in Dyers (295)) explain the underlying rationale for this general rule:
As was held in R v Apostilides (1984) 154 CLR 563 at 575, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic (cf R v GEC (2001) 3 VR 334).
As can be seen (from the last sentence above), the decision in Dyers leaves open the question whether the principle in Jones v Dunkel can be applied in circumstances where the prosecution has called the relevant witness but has failed to adduce evidence about a particular topic. In R v GEC (2001) 3 VR 334 the Victorian Court of Appeal gave an affirmative answer to this question. In circumstances where the prosecution in a sexual case had failed to adduce evidence (supportive of the complainant's version of events) from a witness in a position to give that evidence, it was held that:
[A]pproached from the perspective of the assessment of the reliability of the evidence of the complainant which provided both the foundation and the superstructure of the prosecution case, the absence of support for her version, in circumstances where it was arguably reasonable to anticipate that it would have been forthcoming if that version was correct, could have been regarded by the jury as significant. They would have been entitled to reason that the failure of the prosecution to adduce evidence from the complainant's mother on this matter reflected an acknowledgment that her evidence would not have advanced their case [44].
It is apparent from the facts in R v GEC that the evidence which the prosecution failed to call was central to the complainant's credibility and thus the foundation of its case. It may well be that because of this, and because of the consequent breach of the prosecution's obligation to call all material evidence, the decision in R v GEC falls within one of the exceptions to the general rule referred to in Dyers.
In the present instance, the evidence which the prosecution has failed to call, although significant, does not necessarily contradict Mr X's evidence (see [288] below], and is potentially only one of very many factors which are capable of impacting upon his credibility.
Furthermore, the prosecution case is based upon a very complex set of facts (including a multitude of telephone calls), and in my opinion the failure to adduce the evidence of the two particular calls might well be due to oversight. The existence of the two calls has always been known to the defence, and I am certainly not satisfied that the prosecution has deliberately breached its obligation to make available all of the material evidence. In these circumstances I am not prepared to draw any inference pursuant to Jones v Dunkel.

The admissibility of the video record of interview of Mr X

On 10 October 2007 (ts 4059 ‑ 4066) the defence sought to tender an excerpt from a video record of a police interview of Mr X conducted on 7 October 1998 (MFI 28). This video excerpt was said to be admissible on two alternative bases. Firstly as evidence of prior inconsistent statements by Mr X, and secondly, as evidence of his demeanour when telling admitted lies (which is said to be relevant to my assessment of Mr X's credibility in the present trial).
After hearing brief submissions I reserved my ruling as to the second ground advanced for tendering the video excerpt. I also allowed the video excerpt to be played to Mr X because he had not distinctly admitted the statements that it was said to contain. However, Mr X readily admitted the contents of the video when he saw it, and therefore it does not become admissible on the first ground.
Accordingly it is necessary to determine whether the video record of interview is admissible for the second purpose. Although I have not been able to find any relevant authority, I have already observed that Mr X's credibility is a critical issue in the present trial and that much of his evidence is uncorroborated. It follows that any material which has the potential to impact adversely upon Mr X's credibility is relevant and should properly be admitted into evidence.
For these reasons, I have come to the conclusion that the material in the video excerpt is relevant in that it will enable me to compare his demeanour as a witness in the present trial with his past demeanour when telling lies concerning the same facts which are the subject of his evidence. (Of course, the weight to be given to this material is an entirely different matter.)

Background circumstances that are largely common ground

Martin Coates was born on 23 August 1963 and his 35th birthday was on the same day that Clare Garabedian died. On 19 April 1996, Coates was sentenced in the Perth District Court to 4 years' imprisonment for an offence of grievous bodily harm, and on 18 August 1997 he was released to parole in respect of that sentence. The evidence makes it clear that while on parole, Coates was extensively engaged in illicit drug dealing, and had associations or friendships with members of 'bikie' gangs. It is also apparent that Coates did not use drugs himself and that he regarded them as 'filthy shit' (prosecution brief 2288 - NB throughout these reasons I refer to documentary exhibits by reference to the relevant page in the prosecution brief).
For approximately seven months prior to October 1998 Coates was living with Amanda Hoy. However, he had previously had a relationship with an older woman Gail Valentino, who was a friend of his sister Alison Bloomer. I infer from the evidence that although the break‑up between Coates and Gail Valentino may have been acrimonious, there was still some residual attraction between them and that they continued to see each other quite regularly. For example, Coates spent much of his birthday on Sunday, 23 August 1998 with Valentino, and there could be as many as 'half a dozen' telephone calls between them within a two day period (prosecution brief 1491).
Amanda Hoy was 28 years of age in 1998, and she was dealing in drugs on a regular basis. She lived in rented accommodation, and over the previous two year period had resided in a succession of houses at Girrawheen, Warwick, Dianella and Bassendean. Apart from Coates, those living at the Bassendean house with Hoy were Thomas Nicholls and the infant. It is also relevant to note that at all material times Hoy possessed two mobile telephones.
Thomas Nicholls regularly used amphetamines, and he worked unusual hours as an employee in his parents' vegetable business (which was based at the Canning Vale Markets). Because of this employment he had the use of a flat top utility which was usually loaded with vegetable crates. Nicholls had had a long‑term platonic relationship with Hoy, and I infer from all of the evidence that he was accustomed to doing her bidding. In this regard, he often babysat Hoy's son while she was away from the house.
Mr X turned 26 years of age on 30 October 1998. He had spent his childhood in Victoria and Queensland, and reached year 9 with his schooling. He had then followed in his father's trade as a tattooist, and (because of their clientele), had come to know the members of various bikie gangs (ts 3984 ‑ 3985).
Mr X travelled to Western Australia in 1994 and worked as a tattoo artist firstly at Kalgoorlie and then at Scarborough. While in Kalgoorlie members of a local bikie gang financed the establishment of his tattooing business. By 1998 Mr X was a chronic methylamphetamine addict as well as a small time drug dealer. He came to know Amanda Hoy while she was living at her Girrawheen house as a result of buying amphetamines from her. Through Hoy, Mr X also met Nicholls and Coates.
By mid 1998, Mr X had accumulated significant drug debts including $1,700 owing to a former employer at a tattoo parlour (ts 3967, 3980), $800 borrowed from bikie gang members to establish himself in Kalgoorlie, $2,000 owing to a bikie gang in Gosnells for a 'spilt bag' (meaning a bag of drugs he had been given to sell but which he had used himself), and $1,200 owing to Amanda Hoy for another 'spilt bag' (ts 3878 and prosecution brief 1714).
During August 1998 Mr X did not have any permanent place of residence and he was living with a friend in Maylands. For this reason he had stored his tattooing equipment (which was his only real asset) at Amanda Hoy's Bassendean house. He had also agreed with Hoy that he would tattoo Coates and Nicholls as a means of helping to pay off the debt that he owed her (ts 3878).
In 1998 Clare Garabedian was 21 years of age. Her closest friend was Christine Cunniffe who was approximately two years younger and whom she had known since their school days. During their early teenage years Ms Garabedian and Ms Cunniffe had commenced using 'soft' drugs, and by the time of the events the subject of this trial they had each progressed to long‑standing habits involving serious substances including regular injections of heroin. They had turned to prostitution as a means of funding their heroin addictions (ts 5037 ‑ 5038) and mainly worked the streets around Northbridge. Ms Cunniffe (and to a lesser extent Ms Garabedian) also sometimes worked at a brothel in Inglewood known as '835' (ts 5039 ‑ 5040).
Ms Garabedian and Ms Cunniffe came to know Coates and Hoy as a result of buying drugs from them. Ms Cunniffe was also friendly with Thomas Nicholls and they sometimes injected amphetamines together.

Evidence as to the alleged incident at Gnangara Pine Plantation

According to Ms Cunniffe, some months prior to Clare Garabedian's death, the two of them went to Amanda Hoy's house at Dianella to 'score' drugs. They then went into the bathroom of the house to change for work and to 'shoot up' amphetamines. While they were in the bathroom Clare stole a bottle of Yardley Lace perfume (ts 5052).
When Ms Cunniffe next returned to the Dianella house she was questioned by Coates and Hoy about the missing perfume but denied any knowledge of it. She next saw Coates and Hoy after requesting that they deliver drugs to her at the '835' brothel. Coates and Hoy duly arrived at the brothel in a vehicle driven by the latter, and they were accompanied by Clare Garabedian who was 'crying and a bit shaken up'. After Ms Cunniffe got into the back seat alongside Clare Garabedian the vehicle drove off.
Coates was in the front passenger seat and when he turned around he had a gun in his hand. He waved the gun towards the two young women in the back seat and demanded to know who had stolen the perfume. When as a result of further questioning it became clear that Ms Garabedian was the thief, Hoy stopped the vehicle at a bus stop in Bayswater. Ms Cunniffe was then told to get out and wait until the car returned (ts 5053 ‑ 5054).
Ms Cunniffe waited at the bus stop until the car returned approximately 45 minutes later. Clare Garabedian was no longer inside the vehicle and Coates had 'blood all down his right white sleeve'. Hoy told Ms Cunniffe that Clare had been left 'face down in a pile of mud' and that she was 'going to be a sore little girl when she gets back from where we left her' (ts 5055).

At 2.10 am on 29 June 1998, Andrew Ovens was driving along Gnangara Road past the pine plantation when he came across a young woman staggering along the road. He stopped his vehicle to speak to her and saw that she 'had been either in an accident or had been beaten up pretty badly'. Her face and lips were badly swollen, there was blood on her face, and wet mud and sand was all over her clothes and in her hair. At the young woman's request, Mr Ovens drove her to an address in Osborne Park (ts 3838 ‑ 3839).
At 3.40 am on the same morning, police were called to that same address in Osborne Park where they spoke to Clare Garabedian. She was lying on a lounge and was bleeding from cuts to her face, head, neck and hands. An ambulance was called and she was taken to Sir Charles Gairdner Hospital (ts 3829 ‑ 3830).
When Ms Garabedian was interviewed by a detective on 2 July 1998 she complained that on 28 June she had been abducted by Coates and Hoy who had taken her to the Gnangara Pine Plantation and assaulted her (exhibit 14). The police took photographs of her injuries (exhibit 13.1 ‑ 13.5). Coates was interviewed by detectives on the following day and he and Hoy were then charged with offences of assault occasioning bodily harm, deprivation of liberty and threats to kill (exhibit 15).

The evidence of Mr X

It is Mr X's evidence that on the weekend prior to Clare Garabedian's death, he commenced to tattoo Martin Coates' right arm. He had arranged with Coates and Amanda Hoy to do this tattoo by way of part payment of the $1,200 debt that he owned for the supply of drugs. He did not complete the tattoo that weekend, and arranged to return the following Friday. Mr X had also agreed to tattoo Nicholls after completing the one on Coates.
On Friday, 21 August 1998 Mr X returned to the Bassendean house as arranged and continued to tattoo Martin Coates. Amanda Hoy was present and she was 'answering her phone and making up drug deals' (ts 3880). While the tattoo was being done, Coates told Mr X for the first time about a girl who was going to give evidence in a court case against him and Hoy. Coates also said that 'he was pissed off because he had lined up somebody else to give her a hot shot and get rid of her so she wouldn't give evidence'. Coates mentioned the nickname of the person who had been lined up to do the 'hot shot' but Mr X now cannot remember that name (ts 3880).
After Mr X had ceased tattooing that night, the subject of the girl came up in conversation once again, and Coates said that she was a prostitute. According to Mr X: 'Marty asked me if I'd help him out with this problem, with doing the same, if I'd take on giving this Clare a hot shot'. During the conversation that followed, Mr X agreed that he would do this in return for payment of $2,000. Mr X's evidence as to the reason why he agreed to the proposition was that:
I was in debt and I sort of didn't want to upset them because it was a pretty big thing to be asked to be involved in, to knock somebody (ts 3882).
(This statement should be understood in the context of other evidence which suggests that Mr X looked up to Coates and was somewhat in awe of him. Accordingly I understand Mr X to say that he did not want to 'upset' Coates and Hoy in the sense of disappointing them.)
Thomas Nicholls was also present during this conversation, and there was a discussion about how easy it would be for Mr X to pose as one of the girl's clients in order to give her a 'hot shot'. The purpose of this 'hot shot' would be 'for her to die so she wouldn't give evidence'. It was then agreed that instead of Mr X tattooing Nicholls the following night, 'we'd do that instead' (ts 3882).
On Saturday, 22 August 1998 at about 5.30 pm, Mr X returned to the Bassendean house in order 'to get ready to go and pick up this girl' (ts 3886). When he arrived, Hoy and Nicholls (but not Coates) were present. For a short time another person he knew only as 'Laza' (Paul Nicholas Lazarakis) was also in the house, probably to 'score drugs'.
Mr X thinks that it was around the time when Martin Coates arrived home that he went to the bathroom, had a shower, and changed into some of Thomas Nicholls' clothes. He did this because he had been up for two nights without sleeping, was wearing grubby clothes, and needed to look 'neat and tidy'. He also took two syringes from 'Thomas' cupboard' near the bathroom (ts 3890).
After Mr X came out of the bathroom Hoy 'punched a number' into a mobile telephone, handed it to him, and told him to 'ask for Clare'. Mr X understood that the call was to a brothel in Beaufort Street associated with the girl that he was to pick up. When the call was answered, Mr X (at Hoy's directions) asked questions as to the whereabouts of 'Clare'. When Mr X was told by the person at the other end of the line that Clare could be found at 'the park', Hoy said that she knew where the park was, and he hung up (ts 3890).
Hoy then gave Mr X that same mobile telephone as well as the keys to her car. She said that '[y]ou'll need them to follow us. We'll show you where she is. Follow us into town and we'll show you who she is' (ts 3893). Mr X was also given $200 cash by Hoy and a bag of heroin by Coates. The bag contained about 1 gram of heroin which was 'to be mixed up to use as a hot shot for the girl Clare' (ts 3894). When handing the bag to Mr X, Coates said '[h]ere's the gear you'll need' (ts 3895). Mr X, Coates and Hoy then left the house with Hoy and Coates travelling in the latter's vehicle, and Mr X following behind in Hoy's vehicle. Although not mentioned before leaving the house, 'it eventuated' that the means of communication between Coates, Hoy and Mr X was via the mobile telephone that he had been given (ts 3895).
The parties then drove in convoy along Beaufort Street towards the city, and during this time Mr X received a couple of calls on the mobile telephone from Hoy. In this regard she was 'just checking to see if the phones were working' (ts 3896). Eventually they arrived at a park which Mr X now knows to be Hyde Park.
The two vehicles then commenced to drive laps along streets around the park with Mr X following behind Coates and Hoy. Communications between the two vehicles continued but these ceased when Mr X discovered that his mobile telephone had a flat battery (ts 3896). The vehicle in front then stopped and Mr X pulled in behind. Hoy came up to his window and he told her that the battery of the mobile telephone was flat (ts 3896).
Hoy then said that the girl 'was coming up the same road and she's in a blue checked shirt, a blonde girl with a blue checked shirt' (ts 3897). When told this, Mr X drove around the block and pulled up by the side of the same road (which he now knows to be Palmerston Street) near a girl matching the description that he had been given. She came over to the car.
After the girl (who Mr X now knows to be Clare Garabedian) got into his car, he drove slowly around the park while they conducted negotiations. He told her that he 'needed someone to hang out with me for the night' and her response was that 'I don't normally do it'. (Mr X understood this to mean that Ms Garabedian didn't normally spend the whole night with a client.) Mr X also told Ms Garabedian that he had '$200 and a bit of slow [meaning heroin]'. At her request he allowed her to look inside the bag of heroin. Ms Garabedian then again said that 'she doesn't normally do this because apparently she had a contract on her head, a 40 grand hit on her head' (ts 3898 ‑ 3990).
By this time the car had driven a full lap around the park and Ms Garabedian had also told Mr X about the prices for her services. Mr X was 'spinning out over the fact that she had brought up this contract for $40,000', and said that he needed to get some 'pot'. As I understand his evidence he gave that as a false reason for wanting to use a telephone box. He then stopped the vehicle at a public telephone box outside a delicatessen on a street corner near Hyde Park (ts 3899).
Mr X got out of the car to use the telephone box and at the same time Ms Garabedian went inside the delicatessen. Mr X's real purpose in using the telephone box was to ring Coates and Hoy to tell them that he was 'with the girl'. However as he was about to make the telephone call Coates and Hoy pulled up 'right in front of Mandy's car … in the middle of the road'. What happened next was that 'Clare's run out of the shop and gone for the passenger seat of the car and they've left' (ts 3900). (As I understand this evidence it is to the effect that Ms Garabedian did not seem to notice Coates' vehicle as she got back into the car.)
Mr X had previously asked Ms Garabedian where she wanted to go and she had said that there were 'some motels in Belmont'. After leaving the delicatessen he drove 'towards the Casino and over to Belmont'. They ended up at a drive-in bottle shop near the Belmont Forum where Mr X purchased 'a packet of cigarettes, three cans of Bundaberg and a couple of bottles of Kahlua'. The Bundaberg (in cans mixed with cola) was for Mr X, and the Kahlua was for Ms Garabedian. He brought the Kahlua at her request after asking her whether she wanted something (ts 3901 ‑ 3902).
Mr X then drove the vehicle (in accordance with directions given by Ms Garabedian) to the Great Eastern Motor Lodge in Great Eastern Highway, Rivervale. He pulled up next to the reception area while she went in to book a room. Before she left the car he gave her $100 cash to pay for the room. When Ms Garabedian returned to the car, he parked it in the rear car park of the motel, and they walked to room 18 on the first floor. It is relevant to note that Mr X did not take the flat mobile telephone with him, but left it behind in the console of the car (ts 3903 ‑ 3904).
Mr X did take the heroin and syringe with him, and after entering the motel room Ms Garabedian asked if 'she could have a go at some of the gear'. Mr X 'gave her the bag to have a go' and Ms Garabedian then 'mixed up a shot' and injected it into 'the hinge' of (what he thinks) was her left arm (ts 3905).
Following that 'some time passed' during which Ms Garabedian was lying across the bed while under the effect of heroin, and Mr X was drinking Bundaberg. Mr X then told Ms Garabedian that he was going 'down to the service station' and gave a reason for doing so which he now cannot remember. Before he left she asked 'if she could have a bit more gear' and used heroin from the bag to inject herself a second time (ts 3907).
When Mr X left the motel room on the pretext of going to a service station, his real reason was to telephone Coates and Hoy. According to Mr X, he was 'freaking out because she had mentioned about a hit on her head' which he thought was 'a pretty bizarre coincidence and I was running paranoid from then' (ts 3907 ‑ 3908).
Mr X drove Hoy's vehicle away from the Great Eastern Motor Lodge and found a public telephone box in Acton Avenue, Rivervale. He telephoned Amanda Hoy and 'proceeded to tell her that this girl Clare - she knows; she knows about the hit'. Coates then got on to the telephone and Mr X also told him that 'she knows about the 40 grand hit'. Coates said '[d]id you do it? Did you give it to her?' and Mr X responded '[y]eah, I've given her a few goes but most of the gear's run out' (ts 3908).
During the discussion which followed Coates said 'we'll bring you another parcel and … leave it underneath the car'. Mr X told Coates what motel he was in and said that he would park the car in a nearby side street (ts 3909).
After that first telephone call from the Acton Avenue telephone box Mr X returned to his car, but realised that he had given Coates the wrong motel room number. For this reason he went back to the telephone box, telephoned Hoy once again, and told her that he was in room 18. Mr X then drove back to the motel and parked the car in a side street as arranged (ts 3909).
When Mr X returned to the motel room Clare Garabedian was still laying across the bed. As he walked in, she looked up, acknowledged his presence, and 'sort of went back on the nod'. (The latter term is 'what heroin users do when they're on the gear … its like a sleep state, like a dreamy state'.) By this time, Mr X was 'spinning' and 'was really worried about having to go through with killing Clare' (ts 3910).
About half an hour later Mr X left the motel room and returned to where he had parked the car. He was expecting to find a parcel underneath but nothing was there and he went back to the room. After waiting again for a 'lot longer' he returned to the car a second time and this time found a parcel behind the front wheel on the driver's side (ts 3911).
When Mr X opened the parcel it contained something 'like a sunglass case, the ones that open up at the top but it was a bit bigger … the bulk of it was full'. When Mr X opened up the top by pinching it and fanning it open, he could see the top of a mobile telephone and 'the end of a syringe that still had its wrapping on it but it wasn't sealed' (ts 3911).
Mr X carried the parcel back to the motel room where he emptied out the whole contents of the sunglasses case. He pulled out the syringe which still had wrapping on it and 'seen that it was full' with around '100 units' of golden‑brownish liquid. It 'looked like a liquid version of the powder that I had had earlier on in the night' (ts 3912).
At that time, Clare Garabedian was sitting on the side of the bed and 'was on the nod'. Mr X took the syringe and 'injected a lot of the contents down the sink' because 'I didn't want to kill her'. He then put the syringe with what remained of the contents in a glass of warm water on a side table near Ms Garabedian. He told her 'if you want to have that later or whatever, you know, you can have it'. She looked up, acknowledged him and said 'yeah, thanks' (ts 3912 ‑ 3913).
Mr X then went into the bathroom and had 'a long shower' for about 20 or 25 minutes. While under the shower he smoked a cigarette, and after extinguishing the butt in the shower he threw it in the bin. When he came out of the bathroom, Clare Garabedian was 'slumped over, on the nod' and the syringe he had previously placed in the glass was in her hand. The syringe was empty and it was obvious that she had injected herself a third time (ts 3914).
Mr X then sat down on a chair and drank some Bundaberg. After a while the telephone in the room rang which 'freaked' him 'out a fair bit'. He did not want to answer the telephone so (after locating it under the bed) 'turned it down' and it stopped ringing. When the telephone rang again, he answered it, and Martin Coates was on the other end of the line. Coates asked Mr X, 'have you done it yet' and Mr X responded, 'yeah, yeah. I've fucked her. Me monies run out. It's time to go. I've got to go'. Coates sounded confused and aggravated by Mr X's answers, and he put Nicholls on the line. Nicholls asked 'well have you done it yet?' and Mr X responded in much the same way as he had to Coates. Coates then spoke to Mr X again and said '[i]t's alright then. Can we come and have a look then? Can we come and have a go too then?' Mr X responded '[i]f you've got the money I suppose it'll be alright' and that was the end of the conversation (ts 3915).
After what 'seemed like moments' following this telephone discussion there was a knock on the door, Mr X looked through the peephole and could see that Coates and Nicholls were outside. He let them into the room, and 'Marty was looking at Clare and looking at me and he would shake his head and look at Clare and then me again. To me it looked like he was upset' (ts 3917).
Coates and Nicholls then went into the bathroom and partially closed the bathroom door behind them. Mr X could hear them talking and at one stage it seemed to him that Coates was using his mobile telephone. Coates also 'popped out' in that he would 'come out and he'd look at Clare and then go back in the bathroom'. While this was happening, Clare was 'sitting on the side of the bed on the nod' (ts 3917).
Not long afterwards Nicholls left the motel room and during this period 'Marty would just stand there and just look at the pair of us'. Mr X cannot say 'how long the gap was before Thomas come back' (ts 3917).
When Nicholls did return he brought with him a 'bigger syringe' which was not a normal sized syringe and was like 'something you would see in a hospital' (ts 3922). What happened next was that Clare Garabedian 'started to stir and she looked up and she seen the three of us standing there' (ts 3918).
According to Mr X Ms Garabedian 'sort of glanced around at all three of us' but was 'primarily looking at Marty'. She 'sort of got up and … jumped back, let a little yelp out … and she was staring at us and she was rocking back and forward … at the head of the bed' (ts 3919).
While Ms Garabedian was standing on the bed Coates was verbally abusing her with repeated words to the effect 'you're a dog' and she was looking 'petrified'. Ms Garabedian did not remain standing on the bed but 'put one leg on the floor and then she put it back on the bed, back on the floor and back on the bed like she was ready to make a run for it'. Ultimately she did make a run for the front door but Martin Coates 'grabbed her, spun her around and got her in a headlock' (ts 3919 ‑ 3920).
Coates then dropped to his knees and shook Ms Garabedian's head back and forward with his hand over her mouth. According to Mr X it looked like 'he was trying to break her neck like you see in the movies with the commando and stuff'. That went on for a short while but then 'all in one motion he's pushed her down, down on to the ground and he's got her pinned'. While in this position, Ms Garabedian was 'half on her back, half on her side and he was sitting on her legs'. Her arms were 'out splayed on the ground' (ts 3920).
According to Mr X, Coates looked at Nicholls and said 'put something over her mouth shut her up' and also told Mr X to help him hold her down. Mr X grabbed a pillow which had rolled off the bed and threw it to Nicholls. Mr X also 'stepped over Marty and Clare and crouched down and held a hold of Clare's left arm round her wrist area and held on to her [left] ankle'. While this was happening Nicholls 'pinned the pillow straight over her face with both hands to the floor with his fists' (ts 3921).
Coates then 'shifted over her body a bit' and 'picked the syringe off the ground that was on the carpet'. This was the syringe that had 'come back with Thomas'. Coates then started pushing the syringe into the hinge of Ms Garabedian's right arm and 'was trying to find a vein'. According to Mr X:
[T]hen he just stopped and he palmed the syringe off to me, handed me the syringe and said, 'Fucking do it. Just do it,' and I just stuck it in her arm and pushed it in.
Mr X did not attempt to find a vein and 'didn't muck around'. As soon as he inserted the syringe, he 'just squirted it in'. Up until then Mr X could hear Ms Garabedian's muffled screaming through the pillow and she was also continuing to struggle. However as soon as Mr X injected the syringe into the front elbow area of her left arm she 'ceased to move' (ts 3923).
All three men then stood up and 'the pillow came off the face'. Blood was smeared all over her face and 'someone' asked 'is she dead?' or 'something like that'. Coates then stepped on her throat and pressed it, following which he 'starting giving orders to clean up the room, clean up everything we had touched'. Coates also told Nicholls to get a wet towel which Coates then used to wipe down the body (ts 3923).
According to Mr X he was at this time 'pretty baffled' and was 'trying to get me bearings and it wasn't quite working'. He nevertheless wiped down furniture, benches, the telephone and various other items. While the bed was being straightened the pillow was thrown at Mr X which resulted in some of the blood on it being transferred to his shirt. The pillow case was then taken off the pillow, and various items such as cigarette butts, the ashtray, empty cans and a Kahlua bottle went into it. While all of this was happening Coates was telling the others to 'wipe down everything you've touched' (ts 3924 ‑ 3925).

My overall assessment of Mr X's credibility must also take into account the evidence from the defence witnesses Ross and Wimbridge. There is a measure of common ground between Mr X and Ross as to the nature of their interaction while they were both at the Canning Vale Remand Centre. To the extent that they differ I consider that Ross is a fairly credible witness but I also consider that Mr X's denials are credible. However, in my view it is unnecessary to determine whether the relevant conversations (ts 5304 ‑ 5306) ever took place because the statements that were allegedly made by Mr X are not necessarily inconsistent with his evidence.
Ross' evidence is to the effect that Mr X was agonising over whether he should cooperate with the police and implicate Coates, Nicholls and Hoy in the murder of Clare Garabedian. Ross does not say that Mr X indicated that he might falsely implicate the others, and the alleged conversations are equally consistent with Mr X being concerned about the consequences (within the prison system) of becoming a Crown witness. In this regard, there is ample evidence before me to show that any prisoner who testifies as a prosecution witness is regarded by other prisoners as a 'dog' and is treated the same as a paedophile.
Wimbridge did not impress me as being a credible witness at all. Furthermore, the alleged conversations at Casuarina Prison (ts 5322 ‑ 5324) were in October 1999 by which time Mr X had already reached his first agreement with the State, testified at the preliminary hearing, and been sentenced. Consequently, the alleged conversations along the lines of whether or not Mr X should go ahead and accept 'a deal' in return for a lesser sentence are contradicted by the dates when the two men were in contact, and I do not accept Wimbridge's evidence.
Having carefully considered all of the factors that I have summarised above I remain of the view, and am quite convinced, that Mr X was a truthful witness in the present trial. However, unlike a member of a jury, I have not been able to test that view against the opinions of 11 other jurors, and I must acknowledge the possibility (however remote) that I might be wrong.
I also have some residual doubts as to the reliability of Mr X's evidence. These doubts arise from the high level of amphetamines that he had injected at the material time, and the effects that these may have had upon his perceptions and memory. By reason of his prior amphetamine habit, it is not beyond the realms of possibility that on 23 August 1998 he was subject to a delusional disorder of the type described by Professor Joyce. In this regard some aspects of Mr X's story (as referred to at [128] and [139] above) are quite bizarre, and he also states that he was frequently 'spinning out' or 'freaking out'. Furthermore, Mr X's evidence of his memory lapses (ts 4102) would seem to echo what Professor Joyce had to say about the recovery process following an amphetamine induced delusional disorder (ts 4853). Although it is Professor Joyce's expert opinion that such a disorder would not affect memory in the long term, these considerations obviously raise question marks as to the reliability of Mr X's evidence.
For all of these reasons I have come to the conclusion (which is also consistent with the accomplice warning) that it would be dangerous to rely solely upon Mr X's evidence when making any critical finding of fact. Accordingly, I will only consider accepting Mr X's evidence of any of the alleged events if it is corroborated by other evidence which I consider to be reliable.

Findings of fact

I am satisfied that Clare Garabedian was the victim of an assault committed at the Gnangara Pine Plantation around midnight on 28 June 1998. That fact is established by the evidence of Mr Ovens, the fresh injuries seen by Mr Ovens and police officers who visited her at her home, and the photographs of those injuries which are exhibit 13. Christine Cunniffe was a credible witness and I accept her evidence concerning the events earlier that night. Accordingly the inevitable inference follows (and I am satisfied) that the assault was committed by Coates and Hoy.
Coates and Hoy were charged with offences in relation to that assault and first appeared in court on those charges on 31 July 1998. I accept Christine Cunniffe's evidence that Coates and Hoy subsequently arranged for her to provide a false statement to their lawyers. I also find that Coates later made a statement to the effect that he had arranged to pay $40,000 to have Ms Garabedian killed. This statement was made in the presence of Ms Cunniffe who then relayed that information to Ms Garabedian. (The latter facts are corroborated by Mr X's evidence that Clare Garabedian repeated the same information to him on the evening of 22 August 1998. Mr X and Cunniffe had no opportunity to collaborate or concoct this piece of evidence, and in effect they corroborate each other.)
I make no finding that Coates had in fact arranged a $40,000 contract on Ms Garabedian's head. An alternative inference which is open on the evidence is that he simply told a lie to Ms Cunniffe, knowing that it would be relayed to Ms Garabedian, and in the hope that the latter would be frightened into withdrawing her complaint.
I find on the basis of Coates' admissions (35) and (47) that prior to 22 August 1998 he 'joked' with others that it would be 'good' for Clare Garabedian 'not to be around'. However I am satisfied (by reason of the findings which follow) that what he said on those occasions was not a joke.
In the absence of corroboration of Mr X's evidence, I make no finding that there was a discussion about killing Clare Garabedian on the night of 21 August 1998. However, I do find that there was such a discussion on the evening of 22 August 1998 while Mr X was at the Bassendean house with Coates, Hoy and Nicholls. The subject discussed was a proposal that Mr X would kill Clare Garabedian by posing a sex client, luring her to a motel, and providing her with a 'hot shot' of heroin. Mr X's evidence to that effect is confirmed by Coates' admissions (17), (18), (19), (23), (24), (27) and (34).
I also find that Coates lied (in respect of admissions (20), (25) and (28)) when he said that he thought the matters being discussed were 'just talk' and that he had 'no input whatsoever really'. I am satisfied (by reason of the findings which follow) that Coates was a full participant in that discussion, and I accept Mr X's evidence that Coates and Hoy were the instigators of the plan which was implemented later that night. Coates' motive in joining in that plan was to prevent the prosecution of the charges which would have resulted in his return to prison. I am satisfied as to the existence of that motive by way of inference from all of the surrounding circumstances including Coates' conduct towards Ms Cunniffe after he was charged, the statement he made concerning the $40,000 contract, the admissions to be found in his conversation with Mr X on 25 September 1998 (about police not 'knocking on his door'), and admissions (34), (35) and (47).
I further find that Coates and Hoy agreed to pay Mr X $2,000 in return for him carrying out the plan. That fact is corroborated by the reference to 'two gorillas' in the telephone conversation between Coates and Mr X on 25 September 1998.
In the absence of any confirmatory evidence I make no finding as to whether Mr X then showered and changed into Nicholls' clothes. I am nevertheless satisfied (by reason of Mr X's financial circumstances) that before leaving the house he must necessarily have been supplied with a quantity of cash (to pay for the motel and for Clare Garabedian's services) together with a quantity of heroin to be used as the 'hot shot'. By reason of the corroboration offered by admission (36) (which I am satisfied was a deliberate lie told out of a consciousness of guilt and in the knowledge that Mr X had not had any money to buy heroin) I accept the latter's evidence that the heroin was supplied by Coates. I make no finding as to whether Mr X also obtained a syringe or syringes from Nicholls' cupboard. (If he did not do this, the only reasonable inference is that Clare Garabedian, being a known heroin addict, was expected to have syringes of her own.)
I accept Mr X's evidence that he did not know Clare Garabedian (as confirmed by admission (26)). For that reason it was necessary for one or more of the others to accompany Mr X and to point out Clare Garabedian wherever she was to be found. I find that at 8.25 pm a call was made on one of Hoy's mobile telephones ('846') to the '835' brothel in order to discover where Clare Garabedian could be found. (This fact is corroborated by admission (32) and by the mobile telephone records in exhibit 75.)
I find that Mr X, Coates and Hoy then departed the house in two vehicles travelling in convoy and headed towards Northbridge. Mr X was in Hoy's car and had with him Hoy's '846' mobile telephone. Coates and Hoy were in Coates' vehicle and had with them Hoy's other mobile telephone ('295'). In finding these facts I accept Mr X's evidence as corroborated by:
(a)Coates' admissions (51), (52) and (54);
(b)The pattern of calls between the two mobile telephones (during the period from 8.54 pm until 9.15 pm), including the progressive and simultaneous transfer from base station to base station as the vehicles proceeded towards Northbridge.
(c)Sharon Beattie's evidence that Nicholls was the only adult in the Bassendean house when she first visited at about 9.10 or 9.15 pm (viz. approximately 15 or 20 minutes prior to Nicholls' 9.30 pm telephone call).
(d)Sharon Beattie's evidence that when telephoned by Nicholls at 9.30 pm he told her that 'Mandy and Marty were out'. (Beattie was a very credible witness and I accept all of her evidence.)
(e)The necessary inference that Coates had left the Bassendean house prior to his mobile telephone call at 9.44 pm (via the Rivervale base station) to Nicholls. This call was made only 29 minutes after the last of the calls between the '846' and '295' mobile telephones at Northbridge.
(f)Coates attempts to fabricate the false alibi (involving Mr and Mrs Bloomer) to account for his whereabouts at that time. In that regard I have no hesitation in accepting Mr Bloomer's evidence as corroborated by the telephone intercepts. (It should be noted that the conversation between Coates and Hoy at prosecution brief 2155 on its own proves the falsity of the alibi.) I am also satisfied that Coates fabricated the false alibi out of a consciousness of his guilt in accompanying Hoy and Mr X into Northbridge.
(g)The deliberate lies constituted by admissions (2), (3), (5), (12) and (21) which I am satisfied were told by Coates out of a consciousness of his guilt in accompanying Mr X to Northbridge (as well as in respect of his other activities that night).
I accept Mr X's evidence that after the two vehicles arrived at Hyde Park the battery on the '846' mobile telephone went dead. This fact is corroborated by the inevitable inference arising from Sharon Beattie's evidence, Nicholls' departure from the Bassendean house while carrying replacement batteries, and the telephone call from Coates at 9.44 pm being received by Nicholls via a base station in Northbridge.
I also accept Mr X's evidence that after he arrived at Hyde Park Clare Garabedian was identified to him by Hoy. (This fact is the only reasonable inference given that Mr X had no other means of effecting that identification.) Ms Garabedian then got into his vehicle.
I find that not long afterwards, Hoy and Coates separated, and that the latter then drove to the Rivervale area where he made his 9.44 pm telephone call to Nicholls. Shortly afterwards (at approximately 9.50 pm) Hoy arrived back at the Bassendean house accompanied by an unknown male and told Sharon Beattie to 'leave straight away'. In the meantime, and shortly after the 9.44 pm call, Nicholls had driven to the Belmont/Ascot area where he received two further calls from Coates (at 9.51 pm and 10 pm) and made a telephone call to Hoy (at 10.10 pm). Nicholls later proceeded via Bentley (at 10.28 pm) to Canning Vale where he received a further telephone call from Coates at 11.14 pm. I infer that Nicholls went to Canning Vale for some purpose connected with his employment. (These facts are established by Sharon Beattie's evidence, and by necessary inference from the telephone records.)
Mr X and Ms Garabedian booked into the Great Eastern Motor Lodge at 10.14 pm and then went to room 18. I infer from all of the surrounding circumstances that Mr X necessarily had the heroin with him for use as the 'hot shot' and that he supplied this to Ms Garabedian for the purposes of self injection. I am satisfied that while Ms Garabedian was in room 18 she self injected three times and was later forcibly injected once with heroin. In this regard I accept those aspects of Mr X's evidence as corroborated by the traces of heroin found on three separate spoons, the toxicological evidence establishing that two of the injection sites were 'recent' (with the last being within minutes of death), and Dr Margolius' evidence as to the signs of a struggle and of injuries at the 'fourth' injection site indicating that it was not self administered.
The results of the analysis of the 'P' trap contents are very significant, and strongly corroborate Mr X's evidence that he injected a substantial proportion of a syringe of heroin down the sink. In my view, the logic of the surrounding circumstance is incapable of supporting any inference which would be inconsistent with that evidence. In this regard, Ms Garabedian, as a heroin addict, was hardly going to dispose of the substance that she craved for. Mr X, having agreed to provide the 'hot shot' would surely not have injected the heroin down the sink unless he had had a change of heart at that particular time.
For these reasons I accept Mr X's evidence that a further quantity of heroin was delivered to him at the motel, and that he disposed of most of this because of the reservations that he was experiencing at that time. I accept Mr X's evidence that there were a total of two deliveries of heroin to the room, but make no further findings as to the particular circumstances of those deliveries (viz. that the first delivery was the 'parcel', and that the second delivery was the large syringe carried by Nicholls). I am satisfied that there were two deliveries because of the following circumstances:
(a)Mr X would hardly have injected any heroin down the sink if Nicholls or any other co‑offender had been present. The only reasonable inference is that that particular delivery was made prior to the arrival of the white utility at the motel.
(b)The only reasonable inference in all of the subsequent circumstances is that there was a second delivery of heroin to the room connected with the arrival of the white utility. There can be no other logical explanation as to why the two men would have wanted to go to the room.
I am also satisfied that Mr X did not commit the murder solely on his own. In this regard, the evidence establishes that the two men in the utility arrived at the motel around 4.30 am and were seen to leave again no more than an hour and a half later. Mr Le Bas' identification of the utility, its uniqueness in being stacked with vegetable crates, and a telephone call received at 4.40 am on Nicholls' mobile telephone via the Maylands base station corroborates Mr X's evidence that one of those two men was Nicholls.
Because of the state of the evidence I am unable to make any finding as to the identity of the second person seen by Mr Le Bas. However, Mr X's description of the fleeting incident involving Mrs Nemeth (as corroborated by her), satisfies me that he was one of the two men that she then saw. I am also satisfied that Amanda Hoy was not one of the two persons seen by either of Mr Le Bas or Mrs Nemeth, because her mobile telephone records prove that she was at the Bassendean house during the same period. Coates' mobile telephone records combined with his admissions also establish that he was in the vicinity of the motel during that same period. Furthermore, the necessity for someone to baby‑sit the infant confirms the fact that Amanda Hoy must have been at home.
In my opinion, upon close examination of the evidence there is insufficient corroboration to prove that there was a third person in the room at all. In this regard it is possible that there were other comings and goings by Mr X that he does not remember or has not accounted for. Accordingly (and in light of the anomalies in their descriptions), the evidence leaves open the possibility that the two men seen by Mr Le Bas and Mrs Nemeth were Nicholls and Mr X.
In view of the above, there is little point in me making any findings as to the public telephone box calls or the incoming telephone calls to the motel room. Those aspects of the evidence were relevant to my assessment of Mr X's credibility, but cannot lead to any findings which would further implicate (or alternatively, tend to exculpate) Coates.
The medical, toxicological, and forensic evidence confirms the fact that more than one pair of hands was involved in the murder of Ms Garabedian. The defensive wounds, the other injuries, and the findings at the 'fourth' injection site, all broadly corroborate Mr X's evidence as to the manner in which the death occurred. In my view, the only reasonable inference which can be drawn from all of this evidence is that more than one person committed the physical acts which caused Ms Garabedian's death.
In the end, the evidence is insufficient for me to be satisfied beyond reasonable doubt that Coates entered the motel room and participated in the physical acts which brought about Ms Garabedian's death. However, I am satisfied that Coates was at or in the vicinity of the Great Eastern Motor Lodge during the early hours of the morning and at the time that Ms Garabedian died. I base this finding on the evidence that I have previously outlined (at [285] when detailing the corroboration relevant to this aspect of Mr X's testimony) including the times of the various calls made from Coates' mobile telephone which show that he was in the vicinity of the motel between at least 4.07 am and 5.20 am. These times correspond fairly neatly with the estimates of the motel witnesses as to when the two men were seen arriving and departing in the utility.
The only reasonable inference in all of the circumstances (including Coates' participation in the events of the previous evening) is that his presence at or in the vicinity of the motel during the early hours of 23 August was connected to the activities of these two men. (Any other inference would be totally specious.) Therefore I am also satisfied beyond reasonable doubt that Coates was a party to the delivery of the further quantities of heroin to room 18 with a view to ensuring that Clare Garabedian would be killed.
The relevant admissions by Coates contain exculpatory material which, (by inference), are to the effect that he was at the motel for purposes connected with an unrelated drug deal (presumably involving Kristie‑Lisa Elvy). It is important to appreciate that the assertions on which this exculpatory explanation is based were made in the knowledge that what was being said was being recorded and would be heard by the investigating police officers.
In my view, the facts which I have found as to Coates' participation in the events involving Ms Garabedian earlier that night conclusively prove that those assertions were a deliberate lie. The only reasonable inference from all of the surrounding circumstances is that Coates was present at the motel between 4.07 am and 5.20 am for reasons connected with the earlier plan to murder Clare Garabedian. Accordingly, I am also satisfied that the lie I have referred to was told by Coates because of his consciousness of guilt in that respect.

The evidence overall satisfies me beyond reasonable doubt that Coates was not only a party to the original plan to murder Clare Garabedian by providing her with a 'hot shot', but accompanied Mr X into Northbridge to aid him in identifying Ms Garabedian, and was also a party to the delivery of further quantities of heroin after the initial 'hot shot' had failed to kill her. Nevertheless, the evidence does leave open the possibility that Coates was not present when a decision was ultimately made to smother Ms Garabedian with a pillow and to forcibly inject the final syringe of heroin.

Conclusions (as a matter of law) and verdict

On the facts as found Coates counselled and procured the death of Clare Garabedian while at the Bassendean house with Hoy, Nicholls and Mr X on the evening of 22 August 1998. Their discussions resulted in a plan whereby Mr X was to pose as a client for sexual services, take Ms Garabedian to a motel, and provide her with a 'hot shot' of heroin. Coates then aided Mr X in the implementation of that plan by providing the heroin and driving Amanda Hoy to Hyde Park so that she could identify Clare Garabedian to Mr X. Subsequently, when the initial 'hot shot' failed to have the desired effect, Coates either supplied or was a party to the supply to Mr X of further quantities of heroin in order to ensure that Ms Garabedian would be killed (and thereby continued to aid Mr X in committing the offence).
In the end, the object of the plan to which Coates was a party was achieved. Although the final means of achieving that object did vary from those originally planned, the injection of a 'hot shot' of heroin remained a substantial contributing cause to Ms Garabedian's death and the offence committed was the same as that planned.
In these circumstances, (and pursuant to s 7 of the Criminal Code) Martin Coates is deemed to have committed the offence of wilful murder as alleged in count 1 of the indictment. Accordingly, I am satisfied beyond reasonable doubt and have come to the verdict that he is guilty of that wilful murder.

Date	Time of Call	Number making call	Number receiving call	Length of call
22.08.98	23:44:02	9375 1461	#846	1 min. 26 secs.
23.08.98	08:51	9344 7695	93623611 Great Eastern Motor Lodge	1 min. 29 secs.