CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Evidence - Whether excessive judicial intervention at trial - whether verdict unsafe and unsatisfactory.

Queensland Director of Public Prosecutions for the Crown

The circumstances giving rise to this appeal are set out in the judgment of the other members of the Court.

The appellant's primary contention was based on one, or perhaps two, incorrect premises; the first, that because the appellant and the complainant had been co-conspirators to defraud insurance companies by faking the complainant's death, the appellant had no motive to kill him, is illogical; the second, that his evidence lacked credibility because he was a co-conspirator and told lies in his evidence, some of which were indicated by discrepancies in his versions of events, fails because, on a review of his evidence, it cannot be concluded that a reasonable jury, acting reasonably, ought not have believed his account of the shooting. Indeed, this matter is an example of the inappropriate use, which is regrettably common, of the "unsafe and unsatisfactory" ground of appeal; the jury verdict, far from being "unsafe", was amply justified by a strong prosecution case.

The appellant's other principal complaint was that she was denied a fair trial by excessive intervention by the trial judge.

The length of modern trials, in an ever-expanding search for perfect solutions, is increasing the cost of litigation and over-burdening the courts; for example, this trial occupied a Supreme Court judge, and jury, for 13 sitting days. Judges are expected to conduct hearings efficiently, and avoid time wastage by the parties and their lawyers.

Some judges interrupt more than others, and sometimes interventions are unnecessary, unnecessarily prolonged or argumentative, discourteous or otherwise inappropriate; it is possible for interventions to add to, rather than reduce, the length of a hearing. Obviously, these occasions for criticism should be avoided. However, a judge conducting a hearing has a wide discretion, provided that he or she acts fairly and in accordance with settled rules of practice. It is not a function of the appeal process to review the exercise of that discretion, point by point, case by case, and a practice of using "excessive judicial intervention in the trial" as a standard ground of appeal like "unsafe and unsatisfactory verdict" should not be encouraged or permitted to develop.

Trial judges can help to avoid this, but, in my opinion, this Court should only allow an appeal by reference to judicial intervention in the trial if there has been a miscarriage of justice. Such a miscarriage will have occurred only if, because of the interruptions, the appellant lost a significant possibility of acquittal: cf. Mickelberg v. R. [1989] HCA 35; (1989) 167 C.L.R. 259; M. v. R. [1994] HCA 63; (1995) 126 A.L.R. 325. That conclusion is plainly not warranted in this instance.

The head sentence imposed on the appellant was lenient, and I agree that the recommendation for early release on parole should not have been made.

JOINT REASONS FOR JUDGMENT OF PINCUS JA AND THOMAS J

In these proceedings Patricia Margaret Byers appeals against her conviction of attempted murder and the Attorney-General appeals against alleged inadequacy of sentence.

The Crown case was that Mrs Byers ("the appellant") shot her de facto husband, Mr Asquith, in the head, intending to kill him. Various versions of events were advanced on different occasions by the appellant. The account she gave at trial was that the shooting was an accident in which she played no part.

It was common ground that on the night of 13 April 1993 the appellant and Mr Asquith were the only occupants of the appellant's 24 foot fibreglass boat. It was anchored about a mile west of Stradbroke Island. Mr Asquith was shot in the head with a bullet from a .22 rifle. He and the appellant had shared a meal and wine, and had had sexual relations. According to the appellant's version at the trial, they had an argument at the stern of the boat. Mr Asquith "stormed off" into the cabin, and a few seconds later she heard a gunshot; upon her investigating, he said that "the f...ing thing went off", and explained that he had placed the gun on top of an overnight bag on the galley bench, and that as he went to lie down the gun must have fallen and discharged.

Mr Asquith said otherwise. He said that they had retired to bed, he in the right hand and she in the left hand bunk. He went to sleep, and next recalled waking with a tingling feeling in his arms, legs and back with blood coming from a wound to his forehead. Although seriously injured he was able to move about. He could not find the appellant for some time. As he moved from the rear to the front of the boat he saw a rifle which looked like a sawn off version of the .22 rifle which the appellant kept in the main bedroom of her house. He eventually found the appellant lying across the bow of the boat. Initially she did not respond. He obtained a blanket for her. Upon his asking what was wrong she said that she had been hit over the neck or had a sore neck. He attempted to call for assistance on radio channels. Whilst waiting for help he asked her what the gun was doing in the boat and she said that she did not know anything about it. At that stage he did not suspect that she had harmed him.

After they had been taken to the mainland and Mr Asquith was in hospital, the appellant told the police that they had been asleep, that she was awakened by a noise, went upstairs, felt a pain in her head and became unconscious; when she came to, Asquith was putting a blanket around her and she noticed blood all over him. He radioed for help and eventually they were brought to the mainland. She gave similar accounts to an ambulance officer, a nurse and a relative tending to suggest that some third person or persons had come on board and attacked them. She also said that she did not know he had been shot until his examination at the hospital revealed that fact.

Asquith's skull suffered a compound depressed fracture of the skull. Multiple fragments of bone and bullet were lodged within his brain to a depth of six to seven centimetres. Forensic evidence confirmed a blood soaked bunk consistent with his having been shot in that location. As well, fragments of a bullet or bullets were found within the cabin.

The evidence obtained by the police included the taking out by the appellant of four insurance policies of substantial value on Asquith's life during the months preceding the shooting. She obtained these by forging his signature on the proposals and then forging his signature on transfers of policies into her name. She paid the premiums and stamp duty on the transfers. Incorrect telephone contact numbers were placed on the proposals, consistently with the inference that these facts were being concealed from Asquith. A postal box in the name of the appellant was opened and used for correspondence in relation to such insurance policies as distinct from the house where she and Asquith lived. She answered a number of insurance inquiries directed to that address. When one of the companies required additional evidence in relation to Mr Asquith's blood pressure, the appellant visited a doctor using the name "Joan Asquith", was duly examined, and subsequently altered the medical certificate to "John Asquith" before submitting it to the company. The last two policies were registered in the appellant's name on 12 March and 5 April, the last date being eight days prior to the shooting.

Mr Asquith denied knowledge of any of these policies prior to the shooting.

In her final account to the Court the appellant admitted that her rifle was the one that had caused the injury and that its barrel and stock had been sawn off prior to taking it on board. It, and ammunition for it, had been thrown overboard after the shooting but the appellant said that Mr Asquith had done these things. On the same day as she returned to the mainland with the injured Asquith she purchased a "replacement" rifle and took it home. This, she said, was done in order to answer any queries from people who knew that she kept a gun at the house.

There are two principal grounds of appeal - (1) that the conviction is unsafe and unsatisfactory because of evidence "which led inescapably to the conclusion that the complainant Asquith was aware of and acquiescent to the existence of insurance policies ..." and (2) that the learned trial Judge intervened unduly to the prejudice of the defence.

The primary Crown case was that the appellant shot Asquith in the head, intending to kill him, motivated by the desire to collect life insurance payouts. The first premise in the appellant's principal submission is that on the evidence Asquith must have known of the existence of these policies, or of some of them. Having examined the evidence we do not think that this is necessarily so. However for the purposes of examining the submission we shall assume for the moment that at some stage Mr Asquith became aware of the existence of the policies and of the transfer of their benefit to the appellant. Part of the appellant's story was that she and Mr Asquith devised a plan to stage his disappearance so that she could collect the insurance monies. It was submitted that if Asquith was aware of the existence of any of these insurance policies before the shooting, this would be inconsistent with a vital aspect of the Crown case, namely motive. It was also submitted that her taking out of those policies without Mr Asquith's knowledge was an essential and integral part of the Crown case and that knowledge on Mr Asquith's part would make the case unsafe. It is difficult to see why that is so. Mr Asquith could have known of the existence of policies without being party to a fraudulent plan. Additionally, even if he were party at some stage to a fraudulent plan, nothing would exclude a change of heart on the part of the appellant. The critical part of Mr Asquith's evidence was that when he went to sleep the appellant was in the other bunk, that he was shot whilst he was asleep, and by clear inference that he did not do it himself. Even if the jury doubted or disbelieved his assertion that he had no knowledge of the existence of these policies, it does not follow that they should disbelieve his account of the relevant events on the boat.

It was further submitted that Mr Asquith's credibility was seriously damaged by a number of matters appearing in the cross examination. One of these was the fact that he had made an insurance claim after his shop had been broken into, by falsely claiming that a drill set had been taken. Another was an incorrect statement made during committal proceedings to the effect that he had checked with Citicorp and found that no commission had been paid, whilst at trial he said that he had not checked with Citicorp. Another inconsistency between committal and trial was whether the signature on a yellow slip of paper was his. And lastly there was a vacillation during cross examination as to whether he had stepped over the gun or not after leaving the cabin on the boat. These matters do not individually or collectively place his evidence beyond acceptance or render the use of part of his evidence an unsafe basis for a conviction.

It is unnecessary to set out at length the evidence upon which it was submitted that Mr Asquith must have known of the existence of some of the insurance policies. Suffice to say that a close reading of the evidence concerning the relevant policies relied upon (Mercantile Mutual, Norwich, and Citicorp) leaves the matter inconclusive. Perhaps the strongest evidence was that concerning the Mercantile Mutual policy in which he received an "outstandings list" showing John V. Asquith as a life insured with the same date of birth as his own. He was advised by a person at Mercantile Mutual that it was for a house mortgage and that the address of the person was at Cedar Creek. Whilst that might be thought to be a circumstance that should have caused suspicion on his part, it falls short of fixing him with the knowledge for which the appellant contends. The evidence in relation to the other policies is no more convincing on this point.

As against these submissions it may be thought that there was no point in permitting the proposals to be forged if he were a participant in such a scheme. He had some knowledge of insurance matters and it would seem that if a scheme was to be carried out valid policies would have been thought desirable. Similarly the taking out of a post office box and the use of that address for the purposes of such policies might be thought to have been unnecessary for such a scheme. One might also wonder why the rifle was cut down if there was joint plan to take it onto the boat and use it to make it look as if some intruders had raided the vessel, the more so if the rifle was in any event to be discarded. It is a far more acceptable explanation that it was reduced in size to enable the appellant to conceal it from Mr Asquith. The appellant's suggestion that it was cut down so that it could be more readily concealed in case they were raided or inspected by the Water Police is not convincing.

On analysis the Crown case is a relatively strong one and there is no reason to regard it as unsafe or unsatisfactory. The appellant presented a complicated story which sought to explain away, one by one, the facts which the prosecution had proved, and it must be said with respect to many points of her story that disbelief is understandable. The jury was entitled to reject it and to find that she, the only other occupant of the boat, shot Mr Asquith in the head. There is nothing unsafe in the inference that she did so intending to kill him.

At the commencement of the trial his Honour stated:

"In view of the indications of the estimate of time in this matter I would be grateful if counsel would assist to expedite the matter in the interests of justice. The matter should be properly tried, of course, and no corners cut in any way, but there should also equally be no repetition or irrelevance."

Counsel for the appellant submitted that the learned trial Judge intervened very frequently in the course of the giving of evidence, and this seems to be the case. This was submitted to have been distracting to counsel, and to have necessarily interrupted the thought processes of the advocate and the flow of cross-examination. No single interruption was submitted to amount to such an error as to constitute a ground in itself. The overall effect was said to be subtle and perhaps immeasurable, and to have had the effect of denying the appellant a fair trial.

Counsel initially presented a substantial list of passages at which the learned Judge had "intervened", but a number of these indicate no more than a trial Judge presiding at a trial and commenting on matters as one would expect him to do. Ultimately counsel contented himself with sixteen examples, all of which occurred during the cross-examination of Crown witnesses. The passages relied upon were at pp. 72, 76, 133, 159, 392, 408, 410, 427, 440, 472, 473, 505, 542, 553, 560, 609 and 610 of the record. Each was said to have been "unnecessary".

We have therefore examined each of the above passages in the context of the whole trial. The question whether judicial intervention has been "undue" (Yuill v. Yuill [1945] 1 All.E.R. 183, 185), or more specifically, whether it is such as "to constitute such a departure from the due and orderly process of a fair trial as to amount to a miscarriage of justice" involves very much a question of degree (Mawson [1967] VicRp 23; [1967] VR 205, 207; Boykovski v. Atanasovski (1991) 58 A.Crim.R. 436, 443-444). We propose to mention some only of the above passages as illustrations from which some appreciation may be had of their nature and extent.

During the Crown opening the learned Judge rebuked the Crown Prosecutor for attempting to exceed the proper bounds of an opening. The interventions of the learned Judge were certainly not confined to the defence side of the table. However the end question is whether the defence was unduly impeded or deprived of a fair trial.

The following instances give some indication of the level and nature of the judicial intervention complained of.

(a) On the second day of trial during the cross-examination of a police witness, counsel asked a series of questions on the matter of his "general practice" in interviewing witnesses or suspects. He agreed that he would often inform the interviewee of the statements of other persons in order to obtain the comments of the interviewee. The following passage then occurs:-

"So that you might say to somebody, 'Well, Mary Smith says it happened like this.'?-- Yes.

Do you invent things when you do that?-- No, I've never done that.

So do you only ever put things that the witness has actually told you?-- Yes.

Anything you put to somebody you are interviewing as being said ----

MS HOLMES: I just want to make sure the witness understood.

HIS HONOUR: The witness understood very clearly, as you know, Miss Holmes, it's just repetition.

MS HOLMES: Yes, thank you, Your Honour. I'll just move to something else."

On its face there is little to be concerned about either in relation to the questions of counsel or the statements of the Judge. It may be debatable whether counsel was being pleonastic, repetitious or merely covering the field. The cross-examination was preliminary and general, and counsel was not in the event deterred from returning to the theme. Counsel soon put to the same witness that he had asked Mr Asquith to try to get another witness to say something different from what she had originally said. In the course of this exercise his Honour intervened to say:-

"Excuse me one moment. On the one hand you are suggesting that he tried to influence Miss Wanke. On the other you are then suggesting that he clarify something with her. That is quite a different thing, isn't it, Miss Holmes? You have to be consistent if you are going to use terms like that."

"I think you should be careful to keep your consistency of expression and not make that slight difference"

"If we start from this premise, did you ever suggest to Mr Asquith that he discuss with Miss Wanke an account she had given of his knowledge of the Citicorp policy?-- I think from memory John had explained that he had taken out through his agency a policy ----

HIS HONOUR: Let him finish to see if he is answering or not, please. A witness is entitled to ----

There are two points here. The first is the distinction drawn by the learned Judge between influence and clarification. It was a valid point to make, although views may differ as to whether it was "necessary" to make it at that point. Counsel had initially obtained the witness' agreement to the proposition that if he had asked Mr Asquith to try to get another witness to say something different from what she had originally said, that would be grossly improper. She then put to him that "in effect" that was just what had happened. He denied that. However when counsel then commenced to put the specific facts, she put that he had invited Mr Asquith "to clarify matters" with the witness. It was then that his Honour drew attention to the distinction. It was within his proper function to do so.

The second point arising in the above passage involved counsel interrupting the witness before he had completed his answer, as she considered he was being non-responsive, followed by the learned Judge directing counsel to permit him to finish his explanation. It is difficult to be critical of the Judge's reaction, as this is an area in which a Trial Judge must be allowed considerable latitude in controlling the proceedings. Immediate action is necessary based upon impression.

It may be noted that counsel continued to pursue the subject with the witness at some length and there is no reason to think that her freedom to pursue the point was in any way curtailed.

(b) The following passage is apparently relied upon to suggest that his Honour made remarks casting defence counsel in an unfavourable light:

"Q: And the best that can be said is that you left a situation where you had identified to the most important witness in the case - - - - -

HIS HONOUR: Just a moment. That's going to be a double-barrel question. If you are going to ask is that person the most important witness in the case ask it - - - - -

HIS HONOUR: - - - - - don't slide it in as an assumption, Ms Holmes.

HIS HONOUR: You know better than that, please. It doesn't seem to me as though it necessarily is true, either, I might say.

MS HOLMES: Well, did you perceive Mr Asquith as the most important witness - - - - -

HIS HONOUR: I sorry, I thought you meant Christa whatever that other person's name is.

MS HOLMES: I didn't, Your Honour, I meant Mr Asquith.

Did you perceive Mr Asquith as the most important witness in the case?- - That's if he survived."

His Honour was correct in perceiving a double-barrelled question. The judicial intervention however contained a number of rebukes. Standing alone the passage is unremarkable, but it is capable of adding weight to the alleged denigration of counsel if sufficient other instances are shown. In its context it seems to have been quite a minor incident.

(c) The passages at pp. 159, 392, 408, 410, 427, 472, 473, 542 and 560 do not advance the appellant's argument and most of them can only be described as trivial incidents. It is unnecessary to set them out.

(d) On the eighth day (p. 440) the following is recorded:

"I put it to you that it was cut down so it could be concealed in a small area in order if, for example, you met up with the Youngs, or if the Water Police came on board for any reason, you wouldn't have this great big gun lying around?- - Total lie.

HIS HONOUR: A full scale .22. It could be put, for example, under a mattress or something like that. Are you suggesting it couldn't be concealed somewhere?

MS HOLMES: I am suggesting it couldn't conveniently be concealed somewhere.

HIS HONOUR: All I ask is you be very careful describing it as a 'great big gun'.

MS HOLMES: Yes, Your Honour. Your Honour, I don't know the exhibit number for the moment, but if I could have - it is Exhibit 6, I'm told."

Counsel then pursued the question whether that gun could or could not have been effectively hidden inside the vessel. Whilst minds may differ as to whether this intervention was necessary, it was plainly a legitimate intervention. The jury almost certainly would have perceived the exaggerated description for themselves, but it is a legitimate function of a Trial Judge to endeavour to keep discussion accurate. If the Judge does not do so, sometimes counsel, through a series of minor unjustified accretions are able to distort the truth or unfairly embarrass a witness. This intervention did no more than restore accuracy to the questioning.

(e) Later on the eighth day the following remarks were made:

"I will put this so it is absolutely clear - - - - -

HIS HONOUR: Well, don't be repetitious. Several times you have been repetitious, prefacing it with 'I want to be absolutely clear'. I think you should avoid that practice, please, Ms Holmes. It is very lengthy, and I think you have really been repetitious, I regret to say. You usually preface it with 'I want to make this perfectly clear'.

HIS HONOUR: I think the witness has been very clear.

MS HOLMES: Yes, I suppose he has, Your Honour, thank you.

Would it be correct, then, to say that you were paid commission on that policy? - - I have admitted that."

This contains a reflection upon counsel as repetitious, but counsel seems to have accepted that the witness had already made the matter clear.

(f) On the ninth day the following exchange occurred:

"You were the type of person to go straight to the police officer and tell him what she said? - - - - -

HIS HONOUR: That's a different thing, isn't it, Ms Holmes? It is not fair to put that to the witness, is it?

HIS HONOUR: To report the matter to the police is the proper thing to do, isn't it?

MS HOLMES: Mr Asquith, you went straight to the police to recount the conversation you said had taken place? - - If my memory serves me right, yes, I went to the police.

So, you had no objection to the police knowing the contents of the conversation? - - No, I certainly did not.

The effect of this seems minuscule. It was probably not a necessary intervention, but it drew attention to the hidden premise that there is something wrong with persons who go straight to police officers and report matters.

(g) The following is perhaps the strongest example presented. It occurred on the tenth day:

"How much during your marriage did your husband have to do with his son Darren? - - He didn't see him at all.

Were you ever aware of his having contact with Darren? - - No. Sorry, only once when his mother was ill in hospital, he had been down there as well.

HIS HONOUR: I have been trying to be wide in what I allowed but it is hard to see the relevance of this. I find it hard to see the relevance of a number of things. Do you say this is relevant?

MS HOLMES: Yes, Your Honour, because the Crown seems to be putting the proposition he was so attached to his children - - - - -

HIS HONOUR: No, the Crown's case is he was so attached to the two sons of that marriage, as I understand it, for obvious reasons relating to the disposal of his estate, you see.

MS HOLMES: Well, Your Honour, it will be a matter, I suppose, for the jury to see what they make of the evidence as Mr Asquith gave it.

HIS HONOUR: Apart from trying to inflame them on a personal basis on your part I don't see how that part is relevant.

MS HOLMES: My proposition is this: if he could abandon that son, he could abandon the others. It is as simple as that.

HIS HONOUR: There is no suggestion he abandoned the son. You didn't get that from the witness. You are using inflammatory terms. If you want to use suggestions like that you should ask the jury go out.

MS HOLMES: I don't seek that the jury go out, Your Honour.

HIS HONOUR: Very well. Kindly don't, in argument before them, use inflammatory terms which are not supported by the evidence to the present time. It may be, for example, that the son is the one who has chosen - he was an adopted son, we have all been told, he might have chosen to go his own way, for all we know, and for you to say in front of the jury that he abandoned that son, trying to inflame them against Mr Asquith unfairly is not a very proper thing to do. If you are going to use terms like that you should ask that the jury go out.

MS HOLMES: Yes, Your Honour. Thank you, Your Honour.

HIS HONOUR: Very well. Now, do you say that that subject is relevant, taking into account that the only way in which the Crown's evidence relating to his relationship to his sons was his desire to preserve some property to them?

MS HOLMES: Your Honour, the evidence of Mr Asquith was about his sons plural.

HIS HONOUR: Yes. Well, he is speaking about - the only evidence he gave about his relationship with his sons was those two sons.

MS HOLMES: Your Honour, I will turn it up in the transcript.

HIS HONOUR: That is in respect of his current relationship with them.

HIS HONOUR: This case has dragged on long enough in respect of a number of matters which have caused me great concern and I would certainly ask you, please, in the interests of everybody, not to go venturing off in every direction.

MS HOLMES: Yes, Your Honour. Thank you, Your Honour, I do not - - - - -

MS HOLMES: I do not need to take that line any further in any event, Your Honour, and I won't.

It is true that the learned Judge rebuked counsel for using what he called inflammatory terms, but it is also true that counsel took the opportunity during argument, in the presence of the jury to assert that Mr Asquith had abandoned one of his sons, apparently without evidence to support the allegation.

No submission was made during trial that the jury ought to be discharged by reason of the matters now complained of. The mere fact that clashes occur between counsel and Judge is not necessarily indicative of disadvantage to the defence. Indeed, on some occasions it may be turned to forensic advantage. It is of course important that the Judge should refrain from becoming a participant in the arena, and the more the intervention the more he or she is likely to be seen in that way. It is also important that Trial Judges continue to take seriously their function of ensuring that a fair trial is had.

It is unnecessary to discuss further the point at which departure from orderly process amounts to a miscarriage of justice. The present case bears no resemblance to those cited in which such a miscarriage has been perceived (e.g. Boykovski v. Atanasovski above). None of the above examples is marked by any serious unfairness, and collectively, over a period of thirteen days, the effect cannot be regarded as having interfered with the trial to the extent that justice miscarried.

We turn to the Attorney-General's appeal against sentence. Mrs Byers was sentenced to twelve years' imprisonment with a recommendation for parole eligibility after three years.

The crime was cold-blooded and was committed for personal gain. Its planning and preparation proceeded over several months. No remorse has ever been demonstrated. The trial was marked by her presentation of a concocted and devious story.

It is difficult to tell why the learned Sentencing Judge expressly disregarded her absence of remorse, because this was a relevant circumstance in the case. His Honour also observed that it was "not necessary to deter you" no doubt being of the view that Mrs Byers was unlikely to reoffend. However that may be, the more relevant aspect of the deterrence is that of the community generally. It is questionable whether a sentence which might lead to parole after three years sets a sufficiently serious level of deterrence against the killing or attempted killing for gain of spouses (whether de facto or otherwise).

No complaint is made with respect to the head sentence. A recent decision of this Court (R. v. Hewitt C.A. 405 of 1993, 3.12.93) suggests a range of between twelve and eighteen years imprisonment for offences of this type and seriousness. The head sentence may therefore be thought to lie at the lower end of an appropriate range.

Is there any sufficient reason to justify the recommendation for early parole? We do not think so. The inclusion of the recommendation for parole after three years has the effect of reducing the sentence to an inadequate level for so cold-blooded a crime which all but achieved its purpose. We have noted the earlier difficulties in Mrs Byers' life including the loss of a husband and the death of a child some time ago. This however is not a factor that calls for an early recommendation. Its effect is to be seen in the fact that her sentence is at the lower end of the appropriate range. We are prepared to let the head sentence of twelve years stand, noting that a considerably higher sentence could have been imposed. However this particular sentence should not be seen as a benchmark for serious cases of attempted murder.

The Attorney-General's appeal should be allowed to the extent of deleting the recommendation for early parole.