McINTOSH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 45 (13 March 2017)

McINTOSH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 45 (13 March 2017) - WASCA 2017 case summary — Zoe

[125]

You've heard that Ms Hall was sentenced on the basis of a version of events that essentially included that it was [the appellant] who strangled Ms Matthews. You've also heard that Ms Hall received a lesser sentence than she might otherwise have received because she had cooperated with the police in the prosecution and she had undertaken to give evidence against [the appellant] in a way which was consistent with the same version of events she had given to the police.

You've also heard that she knows that, and she's been told that, if she does not or did not give evidence in accordance with that version of events then she may be brought back to court and re-sentenced and receive a longer sentence. Now, it's important that you hear that evidence, because it's important for you to assess her particular situation in deciding whether you believe her evidence. So it's part of the background material for you to know how it is that she's come along to court to give evidence yesterday and today.

However, I want to make it clear to you that you are the sole judges of the facts in this case. The fact that she was sentenced on a particular basis, the fact that a certain version of events was put to the court for the purpose of sentencing should not in any way influence your view as to whether that version of events is truthful or not, because you are here to decide what the facts are.

So you must not reason that just because the State might have put a certain event or events to the court when Ms Hall was sentenced and just because I sentenced her on that version of events, it doesn't make that version of events true, and you must not reason that it does. It's your job to listen carefully to the evidence both of Ms Hall and all other evidence to decide whether Ms Hall's version of events is correct or not, is truthful or not.

It would be quite wrong of you to reason that just because the State had accepted that version of events, or the police accepted that version of events, or I sentenced [Ms Hall] on that version of events that therefore that version must be true. As I've said, that's because you are the sole judges of the facts in this case.

It is relevant for you to hear that evidence, as I said, because it's part of the background of the case. I'm sure you'll hear submissions from counsel as to whether the fact that Ms Hall was sentenced on a particular version of events gives her a motive to stick with that version of events, even though it may be false. I will give you directions on the law in more detail at the end of the case about that issue. But I want to emphasise to you now that the facts are entirely a matter for you to decide and you alone.

I also wanted to explain to you that it is the usual procedure that if an offender is to give evidence against another person charged with the same offence, that the offender who is to give evidence is sentenced for that offence before they give their evidence. That's so everybody knows what sentence the witness has received.

It's desirable that when someone like Ms Hall comes along to give her evidence as an offender that the jury know what has happened in respect to the offence she committed and the sentence she has received for that offence. Because again that is part of the background to help you assess the truthfulness and reliability of her evidence.

It is also the normal procedure that when such a person is sentenced that there is a statement of facts which [is] put before the court for the purpose of sentencing. And ... the offender, in this case Ms Hall, is sentenced on that version of events. You shouldn't form any view that this is a procedure adopted particularly for Ms Hall or for this case. That is what generally occurs.

It's also the usual situation that when an offender has confessed to a crime, cooperated with the police and undertaken to give evidence against a co-accused that they will receive a lower sentence than an offender who has not done those things. It's ultimately up to the sentencing judge to decide what the sentence is, but it is the law that such an offender will usually receive a lesser penalty.

In that respect, when I sentenced Ms Hall I did not make a judgment, as you are being called to do, as to whether Ms Hall was telling the truth or not. It would be quite wrong of you to proceed on the basis that I have formed such a judgment and that it affects your decision in any way. As I've said, you are the sole judges of the facts and you must not make your decision on the basis of any other person's views of the facts than your own.

Finally, members of the jury, I wanted to say in this respect that you heard something of what I said to Ms Hall. One of the things I said to her was that ... at that point no other person sentenced to ... murder under the current sentencing regime had received a fixed term, let alone one as low as 11 years. ...

What I was saying was that at that point it was my view that no one since the current sentencing regime came into effect had received a fixed term. The current sentencing regime has been in effect since 2008 (ts 1838 - 1840).

[132]

Ms Hall was sentenced on the basis that she would give evidence truthfully to that effect for the State at this trial. Before she was sentenced Ms Hall had undertaken that she would give evidence truthfully to that effect.

Now, these matters were taken into account in order to reduce the sentence that Ms Hall would have otherwise received for the offence of murder. She did not receive any special treatment in that respect. The law is that when an offender cooperates with the prosecution and undertakes to give evidence against a co-accused they should receive a reduced sentence. It is up to the sentencing judge to decide what that sentence is.

For Ms Hall's promise to give evidence against [the appellant] her sentence was reduced from one of life imprisonment with a minimum term of 13 years' imprisonment to serve before she would become eligible for parole to a fixed term of 11 years' imprisonment with a minimum term of nine years to be served before she will become eligible for parole.

When sentencing [Ms Hall] I made some comment to her about receiving a lenient sentence, but that comment really is not important. What is important from your perspective is what I have just said and what Ms Hall understood about the sentencing process, what she understood about the benefit she received from undertaking to give evidence in the trial, and what she understood her obligation was in that regard.

... [T]he law provides that if an offender is sentenced for an offence and they get a lesser sentence than they would have otherwise got because they have agreed to assist the prosecution in a subsequent trial, and if they fail to assist the prosecution in a subsequent trial by giving truthful evidence in terms that they undertook to give then they can be brought back to court and they can be re-sentenced and they can receive a higher sentence.

Ms Hall is aware of this law. Consequently, when she gave evidence in this trial she believed that if she did not give truthful evidence consistent with the statements she had provided to the police in September 2013 and afterwards which implicated [the appellant] in the murder of Ms Matthews she may be brought back to court and have her sentence increased. She therefore has an obvious self-interest in maintaining the account that she gave to the police, even if it is a false account.

Consequently it is important that you scrutinise her evidence with special care, and I direct you to do that. The fact that she has a self-interest in giving evidence in this trial consistent with her earlier statements is not a reason by itself for you to reject her evidence, but it is a reason for you to very carefully scrutinise her evidence and to consider it in light of all the other evidence, and in particular what you know about her general reliability and credibility and what you know about the circumstances of the death of Ms Matthews from other evidence which you accept as truthful and reliable. You should scrutinise her evidence in that way before you decide whether you are prepared to rely upon Ms Hall's evidence.

You've heard very full submissions by both counsel about Ms Hall's reliability and credibility. I'm not going to repeat them. Clearly you will consider those submissions and the evidence relating to them when you retire to consider your verdict.

Importantly, you should also consider whether there is any independent evidence which tends to implicate [the appellant] in this crime. That is, other evidence which supports or confirms the evidence of Ms Hall. This is because you might not want to accept the evidence of Ms Hall without the existence of independent evidence which supports her evidence.

...

So you should weigh up all that evidence and counsel's submissions in respect to it when deciding whether you accept Ms Hall's evidence. Ultimately, as I have said, it is a matter of fact for you, members of the jury, as to whether you accept Ms Hall's evidence, whether it is with or without supporting other evidence. However, you should only accept her evidence if, after having scrutinised it with great care, having considered matters relating to its reliability, and taking into account the self-interest involved in it, you are satisfied beyond reasonable doubt as to its truth and its accuracy (ts 2654 - 2657).

[152]

59 First, as her Honour explained to the jury, if Ms Hall failed to assist the State 'by giving truthful evidence' in the terms she undertook to give, she could be 'brought back to court' and 'resentenced' and she could receive a 'higher sentence' (ts 2655). Secondly, in directing the jury as to the importance of assessing Ms Hall's truthfulness and reliability, her Honour explained that Ms Hall was obliged, having been given a reduced sentence, to give truthful evidence in accordance with her undertaking (ts 2655). Thirdly, her Honour reminded the jury that Ms Hall was aware that she could be brought back to court and could receive a higher sentence if she did not comply with her undertaking and, therefore, Ms Hall had a self-interest in maintaining what she had told the police in her witness statements, even if it was untrue (ts 2655). Fourthly, her Honour instructed the jury, on numerous occasions throughout the trial, that they were the judges of the facts, including the judges of Ms Hall's truthfulness and reliability (ts 2627, 2683). Fifthly, immediately after Ms Hall gave evidence, her Honour stressed to the jury the following. When she sentenced Ms Hall, her Honour was not making a judgment, as the jury was required to do, as to whether Ms Hall was telling the truth or not. It would be wrong for the jury to proceed on the basis that her Honour had formed a judgment as to whether Ms Hall was telling the truth or not. The fact that Ms Hall was sentenced on a particular basis should not in any way influence the jury's view as to whether her version of events was truthful or not. It was the jury's function to decide on the true version of events. The jury must not reason that because her Honour sentenced Ms Hall on a particular version of events, that version must be true. It was the jury's responsibility to evaluate the evidence and decide whether Ms Hall's version of events was 'correct or not ... truthful or not' (ts 1838 - 1840). Sixthly, her Honour gave an accomplice direction in relation to Ms Hall and her evidence, including a direction that the jury should look for independent evidence which tended to implicate the appellant; that is, the jury should look for other evidence which supported or confirmed Ms Hall's evidence. Seventhly, there was otherwise no hidden danger in relation to Ms Hall's evidence which the jury might have been unable to appreciate without the assistance of an instruction or a warning from her Honour. Ms Hall had no attractive features as a witness. There were not any other circumstances which gave rise to a risk that the jury might overlook Ms Hall's status as a convicted murderer who, on the appellant's case, had her own interests to serve.

[193]

88 First, it is not always necessary for a trial judge to direct a jury as to what use, if any, it may make of a plea of guilty by an alleged co-offender. See, for example, Ruffin v The State of Western Australia [2015] WASCA 127. Secondly, in the present case, it was permissible to inform the jury that Ms Hall had pleaded guilty because that was a necessary part of the overall material before them. See, generally, Cowell (50) (Street CJ, Lee & Wood JJ agreeing). Thirdly, the material before the jury in relation to Ms Hall did not merely include evidence of her plea of guilty. The material also included evidence of Ms Hall's confession to the police, evidence as to the admissions made by the appellant to Ms Hall while she was carrying a concealed recording device and, most significantly, Ms Hall's sworn evidence at the retrial. Fourthly, Ms Hall gave direct evidence at the retrial, which was admissible against the appellant, to the effect that he had strangled Ms Matthews. Ms Hall also gave direct evidence as to her having aided the appellant. That evidence constituted an admission of her complicity in the murder. Ms Hall's evidence was focused on the critical features of the State's case, namely the appellant's criminal conduct and her own criminal conduct. In the circumstances, the evidence of Ms Hall's guilty plea did not enhance materially the probative force of the State's case or detract materially from the weight of the appellant's defence. Fifthly, both at the original trial and at the retrial, defence counsel wanted the fact of Ms Hall's plea of guilty to be revealed to the jury for tactical or forensic reasons. One reason was that the guilty plea provided a foundation for attacking Ms Hall's credibility by asserting that her evidence inculpating the appellant had been fabricated with a view to obtaining for herself a more lenient sentencing disposition. Another reason was to provide a basis for submitting that Ms Hall had falsely implicated the appellant with a view to shifting primary responsibility for the murder from herself to the appellant (the appellant's defence being that it was Ms Hall who had strangled Ms Matthews, he did not touch Ms Matthews and he did not intervene because he was 'in shock'). Sixthly, informing the jury of Ms Hall's plea of guilty did not add materially to the evidence of her earlier voluntary confession to the police that she had aided the appellant in committing the murder. Seventhly, the State did not rely on Ms Hall's plea of guilty as part of its proofs against the appellant. It is true that the prosecutor referred to Ms Hall's guilty plea in her closing address (ts 2525, 2559 - 2560). However, the prosecutor referred to the plea as an aspect of her submission that the jury should regard Ms Hall as a truthful and credible witness and should reject defence counsel's attack in cross-examination on Ms Hall's honesty and reliability. In other words, the prosecutor's reference to the plea was made in the context of an argument relating to Ms Hall's credit as distinct from a piece of evidence which was, in itself or in combination with other evidence, probative of the appellant's guilt. Eighthly, it is true that her Honour made two references in her summing up to Ms Hall's plea of guilty. However, those references did not enhance materially the probative force of the State's case or detract materially from the weight of the appellant's defence. One reference was made in the context of reiterating to the jury the basis on which Ms Hall was sentenced and the possible application of s 37A of the Sentencing Act in relation to her undertaking to cooperate with the law enforcement authorities. The other was made in the course of summarising the State's case. Ninthly, the facts and circumstances of the present case are to be contrasted with a case in which a State witness has pleaded guilty to an offence of conspiracy and the accused is an alleged co-conspirator. In a case of that kind, there may well be a real (as distinct from a fanciful) risk that, absent an appropriate direction from the trial judge, the jury may reason, at least in part, that the State witness's guilty plea increases the likelihood that the accused did in fact agree with the witness to carry out the alleged unlawful purpose. Her Honour sentenced Ms Hall on the basis that the murder occurred in the prosecution of an unlawful purpose which the appellant had entered into with Ms Hall, namely to steal drugs and money with violence from Ms Matthews. See s 279(1)(c) of the Code. However, the State did not run its case against the appellant on that basis or on the basis of s 8 of the Code. Tenthly, her Honour directed the jury that Ms Hall had 'an obvious self-interest in maintaining the account [of events] that she gave to the police, even if it is a false account' (ts 2655) and that the jury should 'scrutinise her evidence with special care' and 'very carefully scrutinise her evidence', in the context of all the other evidence (including the evidence as to her general reliability and credibility), in determining whether the jury was prepared to rely upon her evidence (ts 2655). Eleventhly, defence counsel, who is a very experienced criminal defence lawyer, did not request her Honour to give the jury a direction of the kind now contended for on appeal. It is apparent that defence counsel did not perceive that there was any prospect that the jury might reason impermissibly or adversely to the appellant on the basis of Ms Hall's plea of guilty.

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McINTOSH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 45 (13 March 2017)

Legislation Cited (1)

Cases Cited (15)