DPP v Connally [2010] VSCA 301

1 This is an appeal by the Director of Public Prosecutions under s 567(1A) of the Crimes Act 1958 against a sentence, that the respondent be released to be of good behaviour for three years, imposed on the respondent on 25 September 2009 on pleading guilty to one count of being an accessory to murder.

2 Before he was sentenced, the respondent made a statement to police concerning his involvement in the murder and the involvement of his alleged co-offenders, Michael Patrick Flaherty and Clinton Dwayne McRae. During his plea, the respondent gave evidence that the statement was true, and he undertook 'to give evidence in accordance with that statement at any upcoming trial involving Mr McRae' and 'to give evidence to tell the truth'.

3 In his sentencing remarks, the judge said that, but for respondent's plea of guilty and co-operation with the Crown, the judge would have imposed a term of imprisonment of two years wholly suspended for three years.

4 The appellant contends that the respondent failed to honour his undertaking to give evidence in accordance with his statement and to tell the truth and that the sentence imposed on the respondent should therefore be increased.

5 In his statement, the respondent described the roles of Flaherty and McRae in the murder of the deceased as follows:

1. At the farmhouse, Flaherty snatched the shotgun from the respondent and said words in substance or to the effect of 'Come on let's go. Let's get rid of this dog.' Flaherty also made mention of the bloke not being able to rape his girl again.

2. Flaherty said: 'Get in the car don't ask questions and you won't get hurt'.

3. On getting into the 4WD, respondent did not know what to do 'but the way they were carrying on, I thought that I'd have to get in the car or else they would get stuck into me'.

4. Flaherty (in possession of the shotgun) was in the front passenger seat and McRae was standing up in the back.

5. As the respondent was driving, McRae was giving the respondent directions on what to do. He said: 'You know the area, take us to the middle of nowhere'.

6. After some 20 minutes driving along a track, Flaherty told the respondent to stop, saying 'this looks good'.

9. Flaherty said: 'This is it, this looks like a good spot'. McRae agreed with him.

10. Flaherty and McRae rolled the doona off the back of the 4WD.

11. McRae then said: 'Hurry up let's go, let's finish it'. By this the respondent thought McRae was talking about getting rid of what the respondent believed to be a body in the doona.

12. The respondent walked away from the vehicle for some distance. After some 10 minutes he heard the shotgun go off. Upon returning to the vehicle the respondent saw the empty doona and shotgun lying in the boot of the 4WD. Flaherty and McRae were drinking VB stubbies. They seemed happy. They said something like 'That's done, that's over'.

6 The respondent gave evidence at McRae's trial in March 2010. What he said in evidence differed from his statement in a number of respects:

1. Whereas he said in his statement that he thought that Flaherty and McRae would get stuck into him, in his evidence he said that he was never scared of McRae.

2. Whereas he said in his statement that McRae was giving the respondent directions on what to do and told him: 'You know the area, take us to the middle of nowhere', in his evidence the respondent said that by so saying, McRae was just trying to agree with Flaherty and keep him happy.

3. Whereas he said in his statement that both Flaherty and McRae got out of the car, in his evidence he said that only Flaherty got out of the car.

4. Whereas in his statement he said that Flaherty and McRae were all pumped up, in his evidence he said that only Flaherty was pumped up and that McRae was not pumped up at all.

5. Whereas he said in his statement that Flaherty and McRae rolled the doona off the back of the 4WD, in his evidence he said that McRae did not roll the doona off the 4WD - only Flaherty did - and that McRae remained in the 4WD shining the spotlight down the hill.

6. Whereas he said in his statement that McRae said: 'Hurry up let's go, let's finish it', in his evidence he said that he was not now certain who said 'Hurry up let's go, let's finish it', but that he thought it was Flaherty.

7. Whereas he said in his statement that, when he returned to the 4WD, Flaherty and McRae were drinking VB stubbies and they seemed happy, in his evidence he said that Flaherty was happy but McRae was rather reserved.

7 The respondent also said in evidence that his statement inappropriately or unfairly elevated the role played by McRae, and that he was now reducing that role to his own level of complicity in order to reflect the truth. The truth was, he said, that McRae had played no part in the removal of the victim from the 4WD or in the victim's execution. McRae in fact seemed just as frightened as the respondent and McRae's role was at the same level as that of the respondent. McRae had tried to placate Flaherty, not encourage him or egg him on. The respondent said that when he made his statement he believed it to be true but, having reflected on the matter, he now had a clearer recall of events and he attributed that to the fact that he no longer abused alcohol or took antidepressants.

8 Although accepting that there were the differences between the respondent's statement and his evidence to which I have referred, the respondent contends that this court cannot be satisfied beyond reasonable doubt that the respondent breached his undertaking. His counsel made two submissions in support of that contention.

9 The first was that, during the plea, when the prosecutor asked the respondent whether he was prepared to give evidence in accordance with his statement, the judge observed that the undertaking was to tell the truth and that his Honour did not think it appropriate for the respondent to undertake to say a particular thing because 'it involves the court in precisely what the witness will say, which does not seem to me to be right'. So, it was said, the mere fact that the respondent's evidence did not accord with his statement, does not mean that his evidence was not true or, therefore, that it failed to accord with his undertaking to tell the truth.

10 The second was that, according to counsel, the court cannot exclude as a reasonable possibility that the differences between the respondent's statement and the respondent's evidence were due to the imperfect recollection of a flawed but honest witness doing his best to tell the truth; particularly having regard to the fact that the respondent attended to give evidence without need of coercion; there was no evidence of any contact between him and McRae; the respondent had a history of psychological and psychiatric difficulties; the respondent was giving evidence about events occurring more than three years before McRae's trial; and, since the respondent was not a lawyer, it could not be assumed that he understood the conception of the joint enterprise between McRae and Flaherty which the Crown set out to prove or, therefore, that he wilfully sought to undermine that case.

11 I reject those submissions. The murder was committed on 13 August 2006. According to the evidence before the sentencing judge, the respondent was first referred to Dr John Cronin, a consultant psychiatrist, on 7 November 2007. Dr Cronin prescribed a six month course of anti-depressants to which the respondent responded well and without any relapse of symptoms after the end of the six month course. The respondent was interviewed by police on 8 January 2008. His record of interview accords more or less precisely with his statement, which he made on 20 July 2009, and he gave evidence before the sentencing judge on 25 September 2009 that his statement was true. He swore then to give true evidence against McRae and, if it matters, he swore that he would give evidence in accordance with his statement. There is some evidence that the respondent had previously had a problem with alcohol and that the Royal Australian Navy, of which he was then a member, sent him to some courses to deal with the problem. But whatever the extent of the problem, there is no evidence to suggest that it affected his powers of recollection or reasoning.

12 In the result, there is nothing to support the idea that the respondent's mental state at the time of giving evidence before the sentencing judge was any less satisfactory, or that his recollection of the murder was any less precise, than it was at the time of giving evidence against McRae at his trial six months later in March 2010. To the contrary, his recollection as portrayed in his record of interview and statement, which he told the sentencing judge on his oath was the truth, is bound to have been a fuller and more perfect facsimile of the reality than his supposedly altered state recollection at the time of McRae's trial.

13 It is true that there is no evidence of contact between the respondent and McRae and, consequently, it is not possible to say with certainty what motivated the respondent to change his stance. It is also apparent that the respondent is not a lawyer and may not have understood all of the legal ramifications of the way in which the Crown put its case against McRae. But in view of the respondent's record of interview, and the contents of his statement, it is beyond argument that he understood the difference between the extent of involvement which he repeatedly attributed to Flaherty and McRae and the very much lesser role which he ascribed to himself; and there is no doubt from his evidence at McRae's trial that he understood that the effect of his evidence was contrary to his statement in that it reduced McRae's role from the level of involvement which he had previously attributed to Flaherty and McRae to a level of involvement no greater that he ascribed to himself.

14 Thus, whatever may have been the respondent's motivation for giving a different story to police and the sentencing judge than the one he gave in evidence against McRae, it is clear that he knew what were the differences between his statement and his evidence, and I infer beyond reasonable doubt he understood that the differences might significantly detract from the Crown's case against McRae.

15 I conclude that the only realistic explanation for the significant differences between the respondent's statement and his subsequent evidence at McRae's trial is that, to the extent of the differences, the respondent's evidence at the trial was false to his knowledge.

16 The respondent having been sentenced on the basis of an undertaking to give true evidence for the Crown, and he having repudiated his undertaking by giving false evidence to the extent I have identified, the respondent stands to be re-sentenced. The onus is upon the respondent to show by way of exceptional circumstances why the sentence which was imposed on him should not now be increased to reflect all or part of the discount which the judge allowed.[1]

17 Counsel for the respondent did not contend that there were any exceptional circumstances, but he submitted in mitigation of penalty that the respondent's failure to comply with his undertaking was only partial, in that he did not resile from that part of his statement where he said that McRae went up the hill in the 4WD, and thus that the respondent had left it open to the Crown to contend at trial that McRae was party to a common enterprise with Flaherty to kill the deceased.

18 I do not think that submission to be persuasive. Although the respondent repeated in evidence a good deal of what was in his statement, it remains that he left out important aspects of it and he contradicted details of it which on any view were critical. As it seems to me, those differences were calculated to and did effectively emasculate the Crown's case of complicity against McRae, with the result that he was acquitted. If there were any residual utility in the respondent's evidence, in effect it was marginal.

19 Counsel for the respondent contended in the alternative that, whatever may have been the deficiencies in the respondent's evidence, the evidence which he first gave in chief at trial went far to secure McRae's conviction, and that in effect it was only the answers which the respondent later gave when the prosecutor had him treated him as an unfavourable witness that were productive of the damage. Indeed, as I understood the submission, it went as far as to say that it was only because the prosecutor had made an ill-advised forensic decision to have the respondent treated as unfavourable witness that the full damaging effects of respondent's reticence to tell the truth were brought home to the attention of the jury.

20 I reject that submission. The respondent's initial evidence in chief bears all the hallmarks of a witness carefully steering a course twixt the Scylla of pretended truth and the Charybdis of mendacity. Faced with that reality, it is little wonder that the prosecutor made a decision to have the respondent treated as an unfavourable witness. It is true, as was submitted for the respondent, that the prosecutor knew from an earlier Basha inquiry that the respondent had by then twice disowned his statement. It may be, therefore, that the prosecutor could not have rated very highly

his chances of improving his hand. But in criminal litigation, as in other forms of human endeavour, hope springs eternal. One may suppose that the prosecutor hoped that the respondent could even then be brought to tell the truth in accordance with his solemn undertaking. It in no way ameliorates the gravity of the respondent's breach of undertaking that he repeated it when further examined.

21 In any event, the respondent is to be re-sentenced for repudiating his undertaking, not punished for the results of the trial. The latter are important only because they provide support for the inference, which I draw beyond reasonable doubt, that the respondent's recalcitrance was calculated.

22 Finally, it was contended for the respondent that, since the judge allowed the discount which he did to reflect not only the respondent's undertaking to co-operate with the Crown but also to reflect his plea of guilty, his undertaking to give evidence against another suspect and his assistance to police in locating the remains of the deceased, it would be inappropriate to increase the respondent's sentence by more than part of the discount which the judge allowed. I accept that submission.

23 All things considered, including the lack of remorse implicit in the manner of the respondent's response to this appeal, I would set aside the sentence passed below and re-sentence him to a term of imprisonment of two years which I would wholly suspend for a period of 30 months.

24 I agree with the learned presiding judge both as to his reasons and disposition proposed.

2. The sentence of imprisonment imposed below is quashed. In lieu thereof the appellant is sentenced to two years' imprisonment.

3. The Court orders that the sentence is wholly suspended for an operational period of 30 months.

4. The sentence is deemed to have been imposed, and the operational period to have begun, on 8 October 2009.

[1] DPP v DJT [2005] VSCA 270, [12] (Callaway JA); DPP v S [No2] [2009] VSCA 127, [22].