DPP v Coelho, Tabbit & SPA [2007] VSC 137

2 On 13 May 2005, a pre-engagement celebration was organised at a bar called Zeine's. Zeine's is located on the south-west side of the Princes Highway, on the north-western or Melbourne side of Dandenong. Almost opposite Zeine's is Henty Street. Off Henty Street is McFarlane Crescent which runs through to Cleeland Street. Many flats and a Coles supermarket are located within the block bordered by the Princes Highway, Henty Street, McFarlane Crescent and Cleeland Street. On the City of Dandenong side of Zeine's is Robinson Street. Almost opposite Robinson Street is a set of flats at 50 Princes Highway, which I will refer to after this as the first flats, to distinguish them from a second set of flats located at 6 McFarlane Crescent. Adjacent to flat 9 in the second flats is a garden maintained by the owner of flat 9. Two key events took place in the garden.

3 The pre-engagement celebration was for Abdul Tabbit, born in April 1985. A group of seven friends arrived together at Zeine's some time after 10 p.m. to join the celebrations. Listed in order of age, the seven were: Justin King born in March 1985; George Pantazopoulos, born in October 1985; Jeremy Vigliarolo, born in March 1986; Tiago Coelho born in July 1986, Clinton Gottinger, born in March 1987; Jamie Ngyoune, born in September 1987; and SPA, born in 1988. At the time, the oldest, King, was aged 20 and the youngest, SPA was aged 16. The seven had been drinking alcohol to some extent before arriving at Zeine's. They came in a green van driven by Pantazopoulos. At least Pantazopoulos, Coelho and Gottinger had been drinking to excess. There was more drinking at Zeine's by Tabbit and the seven. Around 11.30, Vigliarolo and SPA decided to leave Zeine's to get something to eat. They walked out and turned right on the Princes Highway heading towards Robinson Street.

4 At that time, there was a group of five in Robinson Street approaching the Princes Highway. They had been drinking at a hotel in Lonsdale Street, Dandenong, called "The Old Dandy Inn". One of the five was Greg Harrison. He was with two male and two female friends. All five were of indigenous background. Harrison and his four companions got to the highway just before Vigliarolo and SPA got to Robinson Street. It is not clear why Harrison chose to adopt an aggressive attitude towards Vigliarolo and SPA, but he did. He initiated a skirmish that then involved him and his companions on the one hand, and Vigliarolo and SPA on the other. In that skirmish, blows were struck and clothes were torn. To escape from being held, SPA wriggled out of his shirt and jacket and, bare from the waist, ran off away from Zeine's. Using his mobile, SPA rang Gottinger. Vigliarolo also broke off and ran off. He headed back to Zeine's to tell his companions. The message conveyed to other members of the group was to the effect that the two had been "sprung by abos", and that SPA' jacket had been taken from him. The message aroused a strong "chase and fight" response from most, but not all, of the group of eight consisting of Tabbit and the seven who had joined him. I will call the eight "the King group" after the oldest. King was not the leader. Indeed, there was no obvious leader, and they did not all act together. The roles of Coelho and Vigliarolo in what later took place appear to have been minimal. As to Coelho, the situation was later obscured, partly because he appears to have been more drunk than most of his companions, and partly because he chose to mislead the police. As to Vigliarolo, it appears that he was unwell and that he had been left with a broken bone in his hand from the skirmish near Robinson Street.

5 On emerging from Zeine's, someone in the King group saw one or more of Harrison's group near the first flats. Most of the King group ran across the Princes Highway and into the first flats. Some in the group were shouting loudly, abusively and frighteningly. Windows in the first flats were broken using rocks and the head of a broom. No member of the Harrison group was found. Most of the King group remained aroused and the pursuit continued. Some of the King group remained on foot to do so, and headed for Henty Street. Others ran back to outside Zeine's, where Pantazopolos' van had been parked, to continue the chase. The van headed for Henty Street. Indeed, four of the Harrison group had tried to hide in Henty Street. Three avoided detection. The fourth was Harrison himself. Gottinger, who had remained on foot, located Harrison. When sprung, Harrison ran from Henty Street into McFarlane Crescent, and then into the property of the flats at number 6, and then into the garden adjacent to flat 9. There, he was cornered by Gottinger.

6 There, he was felled by a punch from King. There, he was further punched, and kicked, and stomped on, and struck with an umbrella, by other members of the King group. The latter part of those assaults was witnessed by two persons, named Baxter and Harrak, who had some knowledge of the King group and who had followed the van after it left Zeine's out of curiosity and concern. The autopsy findings warrant the inferences that, initially, Harrison used his arms to try to protect himself, and that he later received serious injuries to the head and neck region and minimal injury to the lower body. After Baxter intervened to stop the assaults, those of the King group in the garden left it. By that time, Harrison had been battered into a state of unconsciousness and lay moaning. Baxter briefly tried to tend to him. He too then left. The owner of flat 9 heard the sounds of the beating and the abuse that accompanied it and called the police. Understandably, the police had received so many calls from neighbours frightened by earlier events that it was some time before a policewoman entered the garden.

7 In the intervening period, members of the King group had come together just off Cleeland Street. Some expressed a wish to continue to pursue others in the Harrison group. Some moved into the Coles supermarket in the event that one of the others had gone there. Gottinger and SPA went one step further. The two of them returned to the garden. There, Harrison lay as he had been left after the earlier assaults. There, a plastic pot was broken over his head. There, most significantly, Gottinger dropped a heavy terracotta pot onto Harrison's head. Harrison died from his head injuries.

8 Police investigations into the killing of Harrison and what preceded it led to their questioning each of the eight in the King group. Tabbit and Vigliarolo opted to exercise their right not to answer questions. The other six opted to answer. In different ways, most chose to work to a kind of Plan A and Plan B format, initially denying involvement, then accepting later having a minor involvement, in one or more of the skirmish, the events at the first flats, the pursuit, the first assault in the garden and the final assault there. Ultimately, it was only the interview of Coelho that was challenged as being inadmissible. I will return to that interview.

9 Charges of murder were laid against each of Gottinger and SPA. Charges of affray and intentionally causing serious injury were laid against each of King, Tabbit, Pantazopoulos, Coelho, Ngyoune and SPA. In May 2006, Gottinger pleaded guilty to the murder of Harrison. He had made a statement in March 2006 as to his role in the events of 13 May 2005. In it, he implicated each of King, Tabbit, Pantazopoulos, Ngyoune and SPA, but not Coelho, in the first assault in the garden. He implicated SPA in the second. He undertook to give evidence as per that statement if called on to do so. Habersberger J sentenced Gottinger on 31 May 2006. Later in 2006, King, Pantazopoulos, and Ngyoune chose to plead guilty to the charges of affray and intentionally causing serious injury. I sentenced Pantazopoulos on 14 September 2006 and King on 4 December 2006.

10 On 29 January 2007, the trials of SPA, as to murder, affray and intentionally causing serious injury, and of Tabbit and Coelho, as to affray and intentionally causing serious injury, came on before me. Application was made on behalf of Coelho to exclude as inadmissible the police interview of Coelho. I ruled that it was admissible. Application was made on behalf of SPA for a separate trial of the charges against him. I acceded to that application. There were then three trials. At the first trial, the jury found SPA guilty on the charges of affray and intentionally causing serious injury, but could not agree as to the charge of murder. At the second trial, at the end of the evidence, application was made that I take the case away from the jury, alternatively give a Prasad direction. I did not accede to either application. I indicated that I proposed to direct the jury as to manslaughter. Mr Richter QC, who appeared with Mr Singh for SPA, submitted that I should not do so. I ruled to the contrary.

11 I ruled that the police interview of Coelho was admissible. I did so after I had heard evidence from each of Coelho and four Homicide Squad detectives, and submissions from Mr Andrighetto, counsel for Coelho. Coelho, in his evidence, claimed that certain words and actions on the part of the detectives caused him to be become so scared that he had deliberately concocted a series of lies, which he had told to the detectives when interviewed. His evidence was that he had had a considerable amount of alcohol in the evening of 13 May 2005, and that, both at the present time and as at the time he was interviewed by the detectives, he had only a minimal recall of the events at, before and after Zeines's. Mr Andrighetto conceded that the answers given by Coelho were voluntarily given, and that there had been no breach of the relevant statutory provisions as to the taping of such interviews. He submitted that the interview should nonetheless be excluded in the exercise of my "fairness" discretion, having regard to the inducing behaviour that had elicited the answers, and to the unreliability of the answers given by Coelho. Mr Andrighetto relied heavily upon what was said in Hawkins v The Queen [1]. It is not necessary to closely review all of the matters in issue. It will suffice to say that, where the accounts of Coelho and the detectives differed as to what had been said and done, I accepted the account of the detectives. After Coelho claimed that he could remember the words and actions perfectly, his later answers showed how many imperfections there were in his recollection. I did not accept that he was induced to lie by any act or omission on the part of the detectives. The factual situation was very different from that in Hawkins, where the court accepted that the appellant was induced to make a false confession by an untrue representation. I was prepared to accept that there were troubling questions arising as to the reliability of many of the answers given in the interview. Measured by reference to other evidence, much of what Coelho told the police was consistent with his having a genuine recall of the events of the night, but much was not. I was far from satisfied that the circumstances warranted my exercising my discretion to rule all of the answers in the police interview inadmissible.

12 In ruling that SPA should have a separate trial, I applied what was said in Pollitt[2] and endorsed in Debs & Roberts[3]. I was also conscious of the need to take account of the many matters affecting the exercise of the judicial discretion as to severance, reviewed in De Jesus[4], Demirok[5] and Gibb & McKenzie[6] It is generally undesirable that, on a trial of one accused for murder, other charges against that accused, let alone other accused, be joined. Mr Richter indicated that the application did not extend to having a separate trial of the charges against SPA other than murder. To allow the charges against Tabbit and Coelho to be heard at the same time as the hearing of the murder and other charge against SPA would have been of benefit to a significant number of witnesses. However, taking that course would, in my opinion, have created a significant risk of unfairness to SPA. The risk would not necessarily have been adequately diminished by appropriate warnings to the jury. It would have substantially increased the complexity of the issues facing the jury. Even in a trial against SPA alone, addressing the issues of "complicity" and of "consciousness of guilt", the obligation to carefully scrutinise the evidence of Gottinger as an accomplice, and the need for "compartmentalisation of evidence" were bound to be heavily taxing on the jury.

13 I ruled against the submission made on behalf of SPA, at the close of evidence in the second trial, that I should direct the jury to acquit SPA of murder and of manslaughter. Mr Richter argued that, on the state of the evidence, a jury, properly instructed could not lawfully convict SPA. The case against SPA depended upon acceptance of the evidence of Gottinger to the effect that SPA got Gottinger to return to the garden, where SPA first kicked Harrison, then struck Harrison with a plastic pot and then pointed to the terracotta pot which Gottinger dropped on the head of Harrison. The argument continued that Gottinger had been seen to lie many times, and that there were multiple inconsistencies in his accounts, and accordingly any reasoning leading to a conviction would not be by way of rational inferences but by some other impermissible process. I was referred to the decision of Cummins J in Federico[7]. There the jury was directed to acquit the accused. The case was an exceptional one in that the evidence was overwhelming that there were reasonable grounds for the belief required of a person acting in lawful self-defence that it was necessary in the circumstances to do what he did. The principles applied in that case, and which I was obliged to apply, were spelt out in Doney v The Queen[8]. They were restated shortly in Antoun v The Queen[9] to the effect that if there is evidence that is capable of supporting a verdict of guilty then the trial judge may not direct a verdict of not guilty, but must leave the matter to the jury for its decision. There was no question that the evidence of Gottinger was that of an uncorroborated accomplice. I was, nonetheless, quite unable to accept that it was not credible. I was well satisfied that his oral testimony was evidence capable of supporting a verdict of guilty of murder. For essentially the same reason, I ruled that I would not give a Prasad[10] direction.

14 I also ruled against the argument of Mr Richter that I should not give directions to the jury on the alternative of manslaughter. He argued that it constituted an invitation to the jury for a compromise, because: if Gottinger was accepted, SPA would be guilty of murder; if he was not, there was no basis for either murder or manslaughter; and there was no rational basis for accepting only some parts of Gottinger's evidence. The principles as to leaving manslaughter as an alternative were summarised recently in R v Kanaan[11], after a review of many High Court decisions going back some decades. The case for manslaughter must be a "viable" one. It must be raised by the evidence as an alternative "which should suggest itself to the mind of any ordinarily knowledgeable and alert criminal judge". As to that gloss, see R v Coutts[12]. The case against SPA is not that he did any act that caused the death of Harrison, but that he acted in concert with, or aided and abetted Gottinger in such an act. I was satisfied that that there was a viable manslaughter alternative to go to the jury on either limb. The jury could have accepted the evidence of Gottinger but not have been satisfied as to the elements of complicity required for murder. The jury could have inferred that there was an agreement between Gottinger and SPA that Harrison be assaulted in such a way as to cause more than trivial but less than really serious injury. The jury could have inferred that SPA knew that Gottinger was assaulting Harrison in such a way as to cause more than trivial but less than really serious injury.