MANSFIELD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 178 (29 September 2017)

MANSFIELD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 178 (29 September 2017) - WASCA 2017 case summary — Zoe

[299]

It is now necessary for me to review my earlier ruling that the accused should be tried together. The evidence of [the appellant's] convictions is relevant in Mr Marchesano's defence of the case against him, as is the other evidence of violence to which I have referred.

The State does not contend that all of that evidence is admissible in the State's case against [the appellant]. The only evidence that Mr Marchesano wishes to lead that the State contends is admissible in the State's case against [the appellant] is, first, evidence from the witness Tessa Smillie that [the appellant] threatened to harm her if she told police what had happened to [the deceased].

Secondly, evidence from Mr Gillmore of a threat by [the appellant] against Mr Gillmore in prison in May 2014, to which I have referred; and thirdly, evidence from the witness Barry Harding concerning a threat when [the appellant] requested Mr Harding arrange the borrowing of Paul Screaigh's Hilux ute in November 2013.

The State contends that the first and second pieces of evidence demonstrated consciousness of guilt. The State contends that the third piece of evidence shows that [the appellant] was involved in the hiding of evidence that [the deceased] had been killed.

It follows that the bulk of the evidence that Mr Marchesano intends to lead in the defence of the State's case against him is not admissible in the State's case against [the appellant].

...

I need to bear in mind not only the evidence which Mr Marchesano wishes to adduce in the defence of the State's case against him, but also that in its case against Mr Marchesano, the State will adduce evidence that in an interview by police officers, Mr Marchesano admitted involvement in the killing of [the deceased] and said that he was involved because [the appellant] threatened to kill Mr Marchesano and members of his family if he did not participate in the killing of [the deceased]. That evidence is admissible against Mr Marchesano, but not against [the appellant].

It is my view that the members of the jury will be able to understand and apply a direction that evidence of what Mr Marchesano said in his interview by police officers is admissible in the State's case against Mr Marchesano, but is not evidence against [the appellant].

I also consider that the members of the jury will be able to understand and apply a direction that the evidence of [the appellant's] propensity for violence and threats and to possess firearms is to be considered by them in Mr Marchesano's defence of the State's case against him, as evidence that it is less likely that Mr Marchesano did the act which caused [the deceased's] death, but that the members of the jury are not to consider that evidence in the State's case against [the appellant].

I have had regard to the combination of the evidence of what Mr Marchesano said in his evidence and also of the evidence of violence and threats and possession of firearms. I am satisfied that the limitations on the relevance of that evidence, to which I have referred, do not require the members of the jury to perform a mental feat that would be beyond them.

I consider that the legal principles are capable of being understood and applied by the members of the jury. I conclude that notwithstanding my ruling that in the defence of the State's case against him, Mr Marchesano can adduce evidence of [the appellant's] propensity for violence and threats and to possess firearms, that [the appellant] will not be prejudiced in the trial.

I have reached that conclusion because I am satisfied that the members of the jury will be able to understand and apply a direction that some evidence relevant to the prosecution and defence case of the case against Mr Marchesano is not admissible in the State's case against [the appellant]. I rule that the trial against the two accused should continue on the one indictment (ts 482 - 484).

[303]

It's clear, in my view, that the overwhelmingly important factor is the court's responsibility to ensure as far as possible that the trial is fair to all parties. And because that is the court's responsibility, in my view, it does have power to order that the defence case for an accused be presented in an order that's different from the practice that's ordinarily followed in this court from the order in which they are named on the indictment. And that's the issue to which I now turn. That issue being what would be the fairest way for defence cases to be presented.

The case of Mr Marchesano is that [the appellant] killed [the deceased], and that Mr Marchesano's involvement resulted from [the appellant's] threats to him. Mr Marchesano in large part adopts as part of his defence the State's case against [the appellant].

[The appellant's] defence insofar as it involves Mr Marchesano also supports in part the State's case. That is because, as I understand it, [the appellant's] case is that Mr Marchesano has made admissions to him that are consistent with Mr Marchesano having murdered [the deceased]. So each of the accused makes allegations against the other.

In this case it seems to me that [the appellant] has significantly greater knowledge of Mr Marchesano's case than Mr Marchesano does [of the appellant's case]. That is because Mr Marchesano has given an interview to police officers in which he has given his version of events. As he was entitled to do, [the appellant] did not give an interview.

It seems to me from those facts; that is, the facts that by reason of the interview [the appellant] knows fully what Mr Marchesano's position is, whereas Mr Marchesano does not know fully what [the appellant's] position is, that the way that I can best ensure that the trial is fair is to direct that [the appellant's] case be presented before Mr Marchesano's case.

That does not flow from the order in which they are named on the indictment. That flows from my conclusion that that would be the fairest for both accused for the trial to be presented. I therefore rule that [the appellant's] case be presented before Mr Marchesano's.

And I'll now deal with the issue of closing addresses, although it is not now in dispute because of having heard from Mr Urquhart for Mr Marchesano that he accepts that he should present his closing address before Mr Edwardson [for the appellant], and that is the direction that I make (ts 1007 - 1008).

[387]

Tessa Smillie is an important witness in the State's case against [the appellant]. She gave evidence that on the morning of 26 October 2013 she went with [the appellant] and Mr Marchesano to [the appellant's] parents' home where [the appellant] collected a wooden box, that all three of them then went to Mr Marchesano's home where the contents of the box were revealed to be a rifle and that [the appellant] left the scene without anyone else in her car and that later on [the deceased] arrived and Mr Marchesano and [the deceased] left.

Mr Marchesano and [the appellant] subsequently returned without [the deceased] and she later assisted the two disposing of the body of the deceased man. She also gave evidence that when she was first interviewed by police officers she denied any knowledge about the matters, but she subsequently made admissions and gave evidence which I've briefly summarised.

Section 50 of the Evidence Act deals with corroboration warnings: A corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict a person who is being tried on the uncorroborated evidence of one witness. The section provides that: A trial judge is not required by any rule of law or practice to give such a warning. And further that: The judge shall not give such a warning unless the judge is satisfied that the warning is justified in the circumstances.

Counsel for [the appellant] submits that the warning is justified because of the multiple clear deficiencies in the reliability of Ms Smillie as a witness. He points to her evidence that she was using methylamphetamines heavily in the period leading up to 26 October 2013, that she had not slept for approximately a week, that she was very anxious about her own situation, that she assisted in the disposal of the body and her evidence that the police told her that - when they were interviewing her in Adelaide that if she didn't assist she was at risk herself of being charged.

...

It's my view the jury will have no difficulty in appreciating both the criticisms of her reliability as a witness that can legitimately be made and which were clearly highlighted in the cross-examination of her and the importance of her evidence to the State's case.

In my view there is no danger that the jury will overlook the potential weaknesses in her evidence or the importance of her evidence if a corroboration warning is not given. I have reached the conclusion that a corroboration warning is not justified in the circumstances of this case and I will not give such a warning.

That does not preclude in any way, of course, legitimate criticism of her evidence which a jury will inevitably hear (ts 1253 - 1254).

[474]

221 I have reviewed numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act. I have taken into account the sentencing dispositions in Atherden v The State of Western Australia [2010] WASCA 33; Butler v The State of Western Australia [2010] WASCA 104; Austic v The State of Western Australia [2010] WASCA 110; Pedersen; The State of Western Australia v O'Kane [2011] WASCA 24; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Cockram v The State of Western Australia [2011] WASCA 179; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; Johnston v The State of Western Australia [2012] WASCA 18; Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328; Khan v The State of Western Australia [2013] WASCA 193; The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; Mack v The State of Western Australia [2014] WASCA 207; Angliss v The State of Western Australia [2015] WASCA 8; The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468; Zwerus v The State of Western Australia [2015] WASCA 174; The State of Western Australia v Churchill [2015] WASCA 257; Crossland v The State of Western Australia [2016] WASCA 93; Corbett v The State of Western Australia [2016] WASCA 97; Taylor v The State of Western Australia [2016] WASCA 210; and McIntosh v The State of Western Australia [2017] WASCA 45. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

At a glance

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Judgment (480 paragraphs)

MANSFIELD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 178 (29 September 2017)

MANSFIELD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 178 (29 September 2017)

Overview of Mr Marchesano's case at the trial

Overview of the appellant's case at the trial

The evidence relied on by the State at the trial in its case against Mr Marchesano

The evidence relied on by the State at the trial in its case against the appellant

The evidence of the appellant's parents and the appellant's partner

Mr Marchesano's attempt at the trial to rely on the defence of duress under s 32 of the Code

Appeal against conviction: the grounds of appeal

Appeal against conviction: ground 1: the relevant course of the trial

Appeal against conviction: ground 1: the trial judge's ruling

Appeal against conviction: ground 1: the appellant's submissions

Appeal against conviction: ground 1: its merits

Appeal against conviction: grounds 2 and 3: the appellant's applications for a separate trial

Appeal against conviction: grounds 2 and 3: the trial judge's ruling as to the order of the closing addresses by defence counsel

Appeal against conviction: grounds 2 and 3: the appellant's submissions

Appeal against conviction: grounds 2 and 3: their merits

Appeal against conviction: ground 4: the trial judge's reason for not giving an accomplice warning in respect of Ms Smillie

Appeal against conviction: ground 4: the appellant's submissions

Appeal against conviction: ground 4: its merits

Appeal against sentence: the ground of appeal

Appeal against sentence: the facts and circumstances of the offending and the appellant's personal circumstances

Appeal against sentence: the appellant's submissions

Legislation Cited (1)

Cases Cited (25)