Court of Appeal (Vic)|2013-10-18|Before: Priest JA, Maxwell P

Potter v The Queen [2013] VSCA 291 (18 October 2013)

R v Potter [2012] VSC 511 (Almond J)

1 I have had the advantage of reading in draft the reasons of Priest JA. I too would refuse leave to appeal, for the reasons which his Honour gives.

2 During the late evening of 28 November 2010, or perhaps very early the following morning, while in the lounge-room of the applicant's unit in Dorset Road, Boronia, Penelope ('Penny') Pratt was shot in the jaw and the side of the head with a sawn-off .22 rifle fired by a companion of the applicant's, Aaron Gibson. A little later, Ms Pratt having been dragged into the bathroom of the unit by the applicant and Gibson, the applicant - it seems clear enough[1] - shot Ms Pratt through the eye with the same firearm, and stabbed her through the heart. Ms Pratt died as a result of one or other, or a combination, of the injuries inflicted upon her.

3 A post mortem examination by Dr Michael Burke revealed three gunshot wounds to the deceased's head. The first, to the right jaw, would not have been fatal. Dr Burke was unable to say whether the second shot, to the left side of the head, would have been fatal. In his opinion, it was possibly capable of being survived, and survived for some time. The third shot, however, through Ms Pratt's right eye, would have been fatal, since it went through the mid-brain or upper brain stem. Death would have occurred rapidly after the third shot, because the nervous system would have been disrupted. Moreover, the stab injury extending through the chest into the heart, which would have required mild to moderate force, would have been lethal. The order in which these injuries were inflicted, however, could not be determined through a post-mortem examination of the body.

4 When arraigned at trial, the applicant pleaded guilty to being an accessory after the fact to murder. That plea was not accepted by the prosecution. As a result he was tried for the murder of Penny Pratt, and, on 22 March 2012, a jury found him guilty of murder. He was sentenced by the trial judge on 30 October 2012 to be imprisoned for 24 years with a non-parole period of 20 years.

5 The applicant now seeks leave to appeal against his conviction for murder. For reasons that follow, I would refuse the application.

The verdict of the jury was unreasonable and cannot be supported by the evidence.
A substantial miscarriage of justice occurred as a result of the trial judge's ruling that portions of two '000' calls were admissible.
A substantial miscarriage of justice occurred as a result of the trial judge's ruling that the applicant's lies to police could be used as consciousness of guilt of the murder.

8 In the evening of 28 November 2010, Penelope Pratt was a voluntary inpatient in the psychiatric ward of Maroondah Hospital, she having checked in earlier in the day. That night the applicant and Aaron Gibson went to her home. A neighbour, Graeme Flannery, informed the pair that Ms Pratt was at Maroondah Hospital. Mr Flannery called Ms Pratt and the applicant spoke to her for a short time. The applicant and Gibson later went to Maroondah Hospital, arriving after 10.00pm. Hospital staff told them that visiting hours were over, and security guards escorted them out of the hospital. The security personnel assisted the applicant, however, to telephone Ms Pratt, who shortly afterwards discharged herself and left the hospital with the applicant and Mr Gibson.

9 During the same evening, Adrian Krelekamp was at the applicant's unit. At some point he heard a male and a female voice yelling (Gibson and Ms Pratt). The applicant told Mr Krelekamp to go outside and 'just yell at them and tell them to come inside'. Gibson and Ms Pratt then came inside, still yelling. Ms Pratt was swearing and yelling. She said, 'Listen you cunt, when am I going to get my money? Enough's enough. I need my money back'. Gibson told her to 'shut the fuck up'. The applicant tried to calm Ms Pratt down. He said to her, 'Don't worry about it, it'll be alright'. Ms Pratt was not swearing at him. Gibson then produced a sawn-off .22 rifle. He grabbed Ms Pratt by the hair and pointed the firearm at her. Ms Pratt said, 'You don't have to do this'. According to Krelekamp, the applicant did not do or say anything when the gun was being pointed. Gibson pulled the trigger. Ms Pratt put her hand to the side of her face. There was blood on her hand. She had been shot in the jaw. Gibson said to her, 'This is what you get when you fuck with us'. Ms Pratt sat down next to the applicant. She said, 'Take me to the hospital. I won't say anything. You don't have to do this, take me to the hospital'.

10 Krelekamp remarked that they - the applicant and Gibson - were 'both fucking crazy'. The applicant responded, 'Shut up Pauly' ('Pauly' being a name by which Krelekamp was known). Krelekamp thought that Ms Pratt then stood up and went to leave. Gibson grabbed her arm. He sat her in a chair, put the rifle to her head and pulled the trigger. Gibson said something like, 'That's what you get if you want fuck with us'. He then sat down. Krelekamp was 'pretty sure' that the applicant then said, 'We'd better get her to the bathroom so she doesn't bleed everywhere'. The applicant and Gibson then got up and each took one of Ms Pratt's arms. They dragged Ms Pratt to the bathroom.

11 The applicant and Gibson returned to the lounge-room. Gibson still had the rifle. He said to the applicant something like, 'Go and make sure she's dead'. The applicant took the rifle to the bathroom. Krelekamp heard the gun go off. When he returned from the bathroom, the applicant threw the rifle on the couch. He then returned to the bathroom with a knife. Krelekamp heard the applicant making gagging noises. When the applicant again came back to the lounge-room he looked pale and sweaty, and the knife did not look clean. The applicant said something like, 'The head's nearly off'. Gibson then went back to the bathroom with an angle grinder. Krelekamp heard the angle grinder in operation. Gibson returned to the lounge room with the angle grinder and tried to clean hair out of it.

12 I should pause at this point to note that the submissions made by counsel for the applicant suggested that the undoubtedly fatal shot to the eye may have been the second shot delivered by Gibson in the lounge-room, rather than the third shot delivered by the applicant in the bathroom. This submission is based principally on brief passages of cross-examination of Mr Krelekamp, where he agreed with the cross-examiner that Gibson was standing to the right of Ms Pratt when he shot her for the second time (the wound to the temple being on the left side, and the wound to the eye being on the right). In context, however, it seems clear that Mr Krelekamp must have been mistaken about the side of Ms Pratt that Gibson was on, since he was adamant that Ms Pratt was shot in the temple. When the applicant's counsel at trial put to Mr Krelekamp that 'he didn't actually see precisely where that [second] shot was fired at her', Mr Krelekamp said, 'Yeah, it was around her temple area, around the side; that's where he held the rifle to'. In my opinion, the jury would have been satisfied beyond reasonable doubt that the second shot was the one fired by Gibson in the lounge-room into Ms Pratt's left temple.

13 Resuming the narrative, at one point Gibson said to the applicant - apparently referring to Krelekamp - 'Do I put a bullet in the fat cunt's head and we dig two holes'. The applicant responded, 'No, he's all right'. He said, 'Nobody's leaving, you're in it with us. If I go to gaol, everyone's going to gaol. No one's leaving the house. We have to get this sorted out.' The applicant and Gibson then searched for the empty cartridge shells. They had Krelekamp help them to clean up. The three then wrapped Ms Pratt's body in a rug, and the applicant and Gibson carried the body out and placed it in the boot of Krelekamp's car. The three men drove to Silvan Road, Olinda. When they arrived Krelekamp opened the boot. Both the applicant and Gibson were affected by drugs, and the applicant kept falling asleep. They left the body with the intention of burying it the next day, but when the applicant and Krelekamp went back they could not find it.

14 Ms Pratt's mother, Julie Pratt, reported her missing on 1 December 2010. When interviewed by police on 16 December 2010, the applicant said he had last seen the deceased on 6 November 2010.

15 In the intervening period, the applicant made certain admissions to two acquaintances, Robert Dixon and Shane Pividor. Mr Dixon gave evidence that the applicant told him that he and a friend had shot and killed Ms Pratt. The applicant said that he was in another room and heard shots. He said that he too shot Ms Pratt once. The applicant also mentioned something about putting Ms Pratt in the bath and cutting her throat, but Mr Dixon was not sure if the applicant said that he or Gibson did that. Mr Dixon said that the applicant told him that Gibson had used an angle grinder. The applicant gave Mr Dixon a ring which he said had belonged to Ms Pratt. Mr Dixon and the applicant were both heavily under the influence of drugs when the applicant told him about the murder. Mr Pividor gave evidence that on one occasion, he heard the applicant and Gibson whispering about something. His idea was that it was to do with a murder. On another occasion, the applicant gave Mr Dixon a ring. The applicant said, 'It's from the girl I knocked'. On another occasion the applicant told Mr Pividor that Gibson shot Ms Pratt once, and then he (the applicant) finished her off with more gunshots and a knife.

16 On 17 December 2010, Krelekamp's car was pulled over by police. Blood stained clothing was found in the boot. Krelekamp made a statement two days later about his part in the disposal of Ms Pratt's body. He took police to bushland in Olinda where the body was then found.

17 The applicant and Gibson were arrested on 19 December 2010.

18 Gibson pleaded guilty to Ms Pratt's murder on 24 November 2011. He was imprisoned for 22 years with a non-parole period of 19 years.

19 Krelekamp, who had initially been charged as an accessory after the fact to murder, was granted an indemnity on the undertaking that he give evidence.

20 The prosecution case was that the applicant, either acting in concert with, or aiding and abetting Gibson, was responsible for the murder of Penelope Pratt.

21 Krelekamp's evidence was central to the prosecution's case. The case also relied substantially on the admissions made to Mr Dixon and Mr Pividor.

22 A number of lies told by the applicant in his record of interview were relied upon by the prosecution to show consciousness of guilt, including that he had not seen the deceased the day she died.

23 As I have said, the applicant pleaded guilty before the jury to being an accessory after the fact. There was no issue that Gibson had murdered Ms Pratt. The applicant's case, however, was that, although the applicant assisted with the disposal of the body, there was no evidence that prior to Ms Pratt being shot the second time the applicant was acting in concert with, or aiding and abetting, Gibson.

25 So that this ground might be understood, I should add a little to the narrative of facts.

26 There was evidence that Ms Pratt had made two calls to the 000 emergency service during the evening of 28 November 2010, the first at 11.21pm and the second at 11.28pm. The second of those calls, in particular, was of significance, since it was capable of conveying that Ms Pratt was in fear of the applicant at the time that it was made. Thus, Ms Pratt told the emergency operator that there was 'two people' who 'were supposed to give [her] money [she] was owed', who had 'just picked [her] up from Maroondah Hospital' and 'drove [her] around'. Ms Pratt indicated to the operator that she was hiding in a bush and was fearful of being heard. She told the operator that one of the men was 'James Potter', and that police 'want to get to this address', or they were 'going to get [her] bashed'.

27 In ruling the evidence of the calls to be admissible, the trial judge said that 'the defence submits that the Crown relies on the 000 phone calls as evidence of the deceased's fear and her fear of Potter in particular, but submits there is a paucity of evidence to establish how that fear goes to the issues in the trial, either as to Potter's state or mind, or as to his actions'.

28 The trial judge summarised the prosecution's submissions, by noting that 'the Crown submitted that it was important to listen to the calls, the tenor of which show that a short time before she was killed the deceased was in a state of fear and named Potter; that the calls are relevant to prove the state of mind of the deceased, and the state of mind of the accused; that it would be open for a jury to infer that the deceased was fearful of the accused man, and the deceased must have had a reason to be fearful of him'.

29 So far as is relevant, the judge gave the following reasons for admitting the evidence:

In my opinion the statements made by the deceased in the 000 calls are admissible as evidence of the fact that the deceased was in a state of fear. Having listened to the recordings it is plain that they are relevant to the issue of the deceased's state of mind at the time of the call. To the extent that the calls are relied upon as establishing facts, these statements are admissible under ss.65(2)(b) and s.65(2)(c) of the Evidence Act 2008 ...

In the circumstances, the substantive question for determination is not admissibility per se, but whether the statements must be ruled inadmissible because their probative value is outweighed by the danger of unfair prejudice to the accused, under s 137 of the Evidence Act, or under the general discretion to exclude evidence, under s 135 of the Evidence Act. ...

Another question for determination concerns whether the accused was a prime mover in the killing. The evidence of what the deceased said in the 000 calls, and who she named in the context of experiencing extreme fear may shed light on that enquiry.

In my view, the evidence of the 000 calls, if accepted, could rationally affect the assessment of whether the accused was a prime mover, and whether pursuant to an agreement or understanding the accused acted in concert, and whether he did so from the outset or at a later time. Alternatively, whether the accused aided and abetted Gibson, and whether he did so from the outset or at a later time.

In my opinion the probative value of the 000 calls is not outweighed by the danger of unfair prejudice to the accused ...

30 Admissibility of the calls was governed by the Evidence Act 2008 ('the Act'). The language of s 55(1) of the Act echoes the common law's notions of relevance.[2] By s 55(1), 'evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. Section 56 of the Act provides that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible, and evidence that is not relevant is inadmissible. Thus the first task is to identify the fact or facts in issue in the proceeding. In this case, the trial judge held, in effect, that the evidence was relevant in proof of the applicant's complicity with Gibson, and as to the time at which such complicity might have arisen.

31 Having determined that the evidence was relevant, the judge next had to turn his attention to the hearsay nature of the evidence. Part 3.2 of the Act governs the admissibility of hearsay evidence. As was the case at common law, generally hearsay evidence is inadmissible. So much is made clear by s 59(1) of the Act, which provides that '[e]vidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation'. In determining whether it can reasonably be supposed that a person intended to assert a particular fact by the representation, s 59(2A) permits the court to have regard to the circumstances in which the representation was made.

32 Section 62(1) makes plain that the reference to a previous representation 'is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact'; and by s 62(2) it is provided that '[a] person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact'.

33 Various exceptions to the general rule set out in s 59(1) are to be found in succeeding sections of the Act. In particular, in this case the next issue for the judge to determine was whether the evidence ought be admitted under s 65(2)(b) or (c) of the Act, which provides:

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -

...

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; ...

34 In my opinion, the 000 calls were capable of showing that, shortly before she was executed, Ms Pratt was in fear of being overheard talking to the 000 operator, she having called the operator for assistance because she was fearful of being bashed by one of the men, specifically 'James Potter'. The evidence was capable of founding the inference that Ms Pratt's fear flowed from the applicant's conduct temporally proximate to the time that the call was made. It was thus relevant and admissible, the real question being, in my view, whether it ought to be the subject of discretionary exclusion under s 137 of the Act.

35 During discussion on this application, the Court sought the views of counsel as to whether we should listen to the recorded call made at 11.28pm. Counsel having indicated that we should do so, we listened to the recording of that call in open court. Upon listening, in my view, one is able to detect Ms Pratt's contemporaneous fear from the inflection in her voice. Listening to the call dispelled any doubts that I might have harboured as to its relevance (and thus its admissibility). Plainly Ms Pratt was in fear. It was open to the jury to conclude that her fear emanated from the applicant's conduct.

36 Moreover, assessing for myself the evidence as it was presented to the jury - against the backdrop of the whole of the evidence presented at trial - and asking myself in that light whether there was a danger of unfair prejudice to the accused, and, if so, whether it outweighed the probative value of the evidence, I am unable to conclude that the decision of the trial judge not to exclude the evidence under s 137 was 'an error ... in, or in relation to the trial' productive of a substantial miscarriage of justice.[3] Indeed, the evidence to the ear from the actual recording was more benign than it appeared to the eye from the transcript. To my mind the recording was less emotive than one might have supposed from reading the written word, and the evidence was thus less capable of provoking an unacceptably emotional response in the jury than first impressions from the transcript might have suggested.

37 Hence, in my opinion the impugned evidence was relevant to facts in issue in the trial; and the trial judge did not err in failing to exclude the evidence pursuant to s 137 of the Act, since the probative value of the evidence was not outweighed by the danger of unfair prejudice.

38 There are two further matters I should mention. First, it is to be noted that, although the judge did not give any specific warning to the jury to guard against an emotional response to the 000 calls, the trial judge did give conventional general directions to the jury of the need to decide the case intellectually, and not according to sympathy or bias or the like.

39 Secondly, counsel for the applicant submitted orally on the hearing of the application for leave to appeal that the judge should have considered the provisions of s 192 of the Act. It is noteworthy that counsel at trial did not place any reliance on s 192; and, in any event, it is unlikely that considerations similar to those provided for in the section would not have influenced the judge's mind when considering the possible exclusion of the evidence under s 137.

41 Defence counsel sought exclusion from the evidence of certain lies told by the applicant to police, arguing that they were intractably neutral in that they were equally explicable of a consciousness of guilt of being an accessory after the fact to murder rather than murder.

42 The prosecution submitted that the lies were relevant to the applicant's involvement in the killing of Ms Pratt, both as to his actions and his intention.

43 There were four lies upon which the prosecution relied as evidencing consciousness of guilt were:

the applicant last saw Ms Pratt around 6 November 2010;
the applicant and Gibson did not go to Ms Pratt's house looking for her on 27 or 28 November 2010;
the applicant had never been to Maroondah Hospital to meet Ms Pratt; and
the applicant could tell the police nothing about the death of Ms Pratt.

44 In my opinion, each of the four lies was properly admissible as being capable relevantly of evidencing a consciousness of guilt of murder.

45 Counsel for the applicant in this Court did not address any oral argument on this ground of appeal, being content to rely on the submissions in the written case. As I understand those submissions, it was accepted that each of the statements relied upon as being lies were properly capable of that characterisation; that is, as deliberate untruths. Further, I take it to be accepted - at least implicitly - that the jury were capable of finding that the lies were told to hide the fact that the applicant had been with the deceased at the time she met her death. Indeed, it was said that '[t]he lies told in the interview can all be categorised as lies denying any knowledge of what had happened to [Penny] Pratt and lies denying seeing her on the day of her death including denying picking her up from hospital'. It was submitted, however, that the lies were equivocal, in the sense that they were not capable of establishing the actus reus or the mens rea of murder as opposed say, the physical and mental elements of being an accessory after the fact to murder. The lies were, it was submitted, 'intractably neutral'. I do not accept those submissions.

46 In Mocenigo,[4] I observed that in recent years a certain mystique seems to have grown up around evidence of lies and post-offence conduct, but that consciousness of guilt reasoning[5] from lies (and post-offence conduct) is in reality, however, merely the application of a process of logical thought. It has a venerable pedigree in human history;[6] and should not be regarded as an abstruse or technical concept.[7] Despite the concept in recent times having presented difficulty in its practical application, it really involves some fairly simple notions. First, it is accepted that a person may sometimes be seen to have impliedly accepted responsibility for a crime, through his or her statements (or conduct) after its commission. Before that conclusion is capable of being reached, however, the statements (or conduct) have to be isolated, and how it is that they could be viewed as implied admissions must be identified. Of course, consistently with the burden and standard of proof in a criminal trial, all other reasonable possibilities consistent with innocence must be excluded beyond reasonable doubt.[8] Before the words (or conduct) of an accused may be left as going to consciousness of guilt, they must be such that an inference might properly be drawn that they are borne of a realisation of guilt and fear of the truth.[9] When they do, lies (and other conduct) go to consciousness of guilt and amount to implied admissions of guilt.[10]

47 The applicant's written submissions placed a deal of reliance on certain observations of this Court in Ciantar.[11] In that case the applicant had been convicted of culpable driving. After colliding with a pedestrian while driving his motor car, he had fled the scene. On appeal it was argued that the judge had erred because, in directing the jury concerning the applicant's flight from the accident scene, the trial judge did not state that evidence of flight could only be used as evidence of consciousness of guilt if the jury was satisfied that it sprang from a realisation of guilt of the crime charged - causing death by culpable driving - as opposed to a realisation of having committed some lesser offence. This Court (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) held, however, that the trial judge had not erred in his directions concerning the applicant's flight from the accident scene. Making due allowance for the fact that a possible explanation of his post-offence conduct was that he was conscious that he had committed one or more of the identified lesser offences, as opposed to the offence charged, it did not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed the offence charged.

48 Much of the analysis in Ciantar was concerned with whether Heyes,[12] a previous decision of this Court, should be followed. Heyes was authority for the proposition that where the issue at trial is whether the accused performed acts leading to the death of another with an intent to kill or inflict really serious injury (evidencing murder), or merely performed an unlawful and dangerous act (evidencing manslaughter), evidence of lies will usually be of no help in resolving the issue. The Court said in Ciantar:[13]

The majority in Heyes recognised the possibility that there may be cases where evidence of consciousness of guilt is probative of guilt of a charged offence as against a lesser included offence. But they permitted of only two exceptions to the general exclusionary rule which they propounded. The first, which they said they regarded as being more theoretical than real, was where the evidence of consciousness of guilt bespeaks guilt of the charged offence as opposed to a lesser included offence, and they gave as an example post-offence conduct out of all proportion to the lesser included offence. The second was where the issues are not confined to which of two crimes the accused committed but include the question of whether the accused was guilty of any offence at all. They said that in such circumstances the jury could be directed that they may take lies or other post-offence conduct into account in determining whether the accused was guilty of an offence, but not for determining which offence.

With respect we are not persuaded that it is either necessary or desirable so to restrict the circumstances in which a jury may find evidence of post-offence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiple-count presentment or, as in the present case, other offences disclosed by the evidence. The interrelationship between evidence of consciousness of guilt and other evidence is inherently more complex than that, and the permutations and combinations of facts in which it may fall to be applied are infinitely variable. As Winneke P in effect observed in R v Burrows, exclusionary rules of the kind propounded in Heyes unnecessarily confine trial judges where post-offence conduct may be relevant and probative.

Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple-count presentment or another offence where it is disclosed by the evidence. ...

49 Later, concerning the directions necessary, the Court said:[14]

To begin with, the term 'the offence charged' was described in Woolley as an obvious and usually convenient way of relating the post-offence conduct to the material wrongdoing as opposed to some other wrongdoing. As was said, it would be fanciful to make a jury's resort to evidence of consciousness of guilt of a particular offence depend upon whether the accused had a consciousness of guilt of the particular offence as opposed to unlawful conduct in which the accused has engaged. Consequently, juries may be directed in terms of whether evidence of lies or other post-offence conduct demonstrates a consciousness of guilt 'of the offence charged'. But it will often be helpful for a judge to add an explanation to the jury that reference to 'the offence charged' is a convenient way of saying that the accused had a consciousness of the alleged wrongful conduct which constituted the offence charged rather than a consciousness of a specific crime as it is known to the law.

50 In my view, the reasoning in Ciantar does not support the second ground of appeal. Ciantar makes plain, in my opinion, that the lies in this case were properly admitted, and, subject to proper directions by the trial judge, were capable of use by the jury in determining whether the applicant had implicitly admitted involvement in the unlawful killing of the deceased.

51 I make two further observations. I did not take it to be contended that alternative verdicts of manslaughter or attempted murder[15] were, in the circumstances of this case, realistically open. Further, I note that it was not suggested that the trial judge failed to give adequate directions on the use of lies.

52 The lies relied upon by the prosecution were properly admitted.

54 Contrary to the submissions made under the cover of ground 1, it was open to a properly instructed jury, in my view, to return a verdict of guilty against the applicant for the murder of Penny Pratt.

55 It was submitted on the applicant's behalf that it was not open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the applicant 'might have been complicit with Gibson at the time [Penny] Pratt's death was caused'. In developing this submission, the applicant's counsel contended that the second shot fired by Gibson might have been the shot that caused Ms Pratt's death, and thus that death had occurred before the third shot (which, admittedly, the applicant fired). Since, so it was argued, there was a complete lack of evidence to establish any relevant complicity prior to the second shot being fired, the applicant could not be fixed with liability for Ms Pratt's murder on the basis that he was aiding and abetting, or acting in concert with, Gibson. Although the applicant fired the third shot and inflicted the stab wounds, he might have been inflicting these injuries on a corpse (Ms Pratt having already died as a result of the second shot administered by Gibson). These submissions are not persuasive.

56 The principles governing the resolution of a complaint that a verdict is unsafe and unsatisfactory are well understood. Indeed, counsel for the applicant referred the Court to SKA,[16] in which the High Court considered the task of an appellate court when faced with a ground that a verdict is unsafe and unsatisfactory. The Court held that it was wrong for the appellate court to concern itself with 'whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence'.[17] It was said:[18]

To determine satisfactorily the appellant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.

On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported.

57 In Libke,[20] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the 'unsafe and unsatisfactory' ground:

... But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[21] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

58 Making my own independent assessment of the evidence, in my opinion it was open to the jury - in the sense dictated by authority - to be satisfied beyond reasonable doubt that the applicant was guilty of murder.

59 This was not a case where it was necessary to determine whether it was the second shot or the third shot which caused death (it not being suggested that different 'defences' might have applied to those shots),[22] so long as the jury were capable of being satisfied beyond reasonable doubt that the applicant was aiding and abetting, or acting in concert with, Gibson when he fired the second shot. Nor was this a case where it was necessary to determine whether causation for the death could be sheeted home to the applicant as a result of his failure to intervene after Ms Pratt was shot for the first or second time,[23] so long as the jury were capable of being satisfied beyond reasonable doubt that the applicant was aiding and abetting, or acting in concert with, Gibson when he fired the second shot.

60 In my opinion there was ample evidence upon which the jury might have concluded that the applicant was complicit criminally with Gibson at the time that Gibson shot Ms Pratt for the second time.

61 The prosecution alleged that the applicant was aiding and abetting Gibson when the second shot was fired. Thus, if the applicant was intentionally helping Gibson at the time he committed the act causing death (posited as the second shot) with murderous intent; or was intentionally encouraging him by words or by presence and behaviour to commit it; or was intentionally conveying to him by words or by presence and behaviour that he was assenting to and concurring in his commission of the crime, then he was guilty of murder.[24] It was necessary for the prosecution to show that the applicant was linked in purpose with Gibson at the time he performed the act causing death, and by his words or conduct was doing something to bring about, or rendering more likely, the performance of the act.[25]

62 In order to fix with the applicant with criminal liability for Ms Pratt's murder based on concert, it was necessary to prove that the applicant was a party to an understanding or arrangement, whether formed expressly or tacitly, with Gibson, to kill Ms Pratt or to inflict really serious injury on her and that, while that arrangement was on foot, Gibson performed the act which caused Ms Pratt's death intending thereby to kill her or to do really serious injury to her. (It is accepted by the applicant, of course, that if the third shot caused death, he was guilty of murder.) It is the applicant's participation in the enterprise while possessed of the requisite intention which operates to fix him with liability for Gibson's act or acts carried out in pursuance of it.[26]

63 Either or both forms of complicity relied upon by the prosecution were, in my opinion, a path to the applicant's guilt of murder. Acknowledging - as was put by the applicant's counsel - that 'mere presence' would not be sufficient to fix the applicant for criminal liability flowing from the second shot,[27] there was ample evidence upon which the jury might properly have concluded to the criminal standard that the applicant aided and abetted, or acted in concert with, Gibson to murder Ms Pratt. He did nothing to prevent Gibson from shooting Ms Pratt when the firearm was produced. He did not remonstrate with Gibson after he shot Ms Pratt for the first time. He did nothing to obtain medical assistance for Ms Pratt. When Mr Krelekamp remonstrated after the first shot, the applicant responded, 'Shut up Pauly'.[28] After she was shot for the second time, the applicant said that they had better get Ms Pratt to the bathroom so that she did not 'bleed everywhere'. The applicant helped Gibson drag Ms Pratt to the bathroom. When told by Gibson

something like, 'Go and make sure she's dead', the applicant took the rifle to the bathroom and shot Ms Pratt for a third time and stabbed her. The applicant together with Gibson then helped dispose of Ms Pratt's body.

64 The concatenation of all of these factors leads irresistibly, in my opinion, to the conclusion that the applicant was complicit with Gibson in the murder of Ms Pratt in one or other of the two ways alleged by the prosecution. In my view, it cannot realistically be contended that the verdict is unsafe and unsatisfactory.

66 None of the grounds relied upon can be upheld. The application for leave to appeal against conviction must be dismissed.

67 I too have had the advantage of reading in draft the reasons of Priest JA and agree that the leave to appeal should be refused.

[2] See Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, 498 [5] (n 18).

[3] McCartney v The Queen [2012] VSCA 268, [50].

[4] Mocenigo v The Queen [2013] VSCA 231R, [41]-[46].

[5] In R v Zheng (1995) 83 A Crim R 572, 574 (n 7), Hunt CJ at CL suggested that, 'Awareness of guilt is probably a more "user friendly" expression'. The recently introduced Jury Directions Act 2013 speaks of post-offence 'incriminating conduct'.

[6] See, eg, Proverbs, Ch 28, v 1. See also R v Chang [2003] VSCA 149; (2003) 7 VR 236, 251 [39].

[7] R v Perera [1982] VicRp 91; [1982] VR 901, 910.

[8] R v McCullagh (No 2) [2005] VSCA 109, [62].

[9] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 209, 211; R v Lucas (Ruth) [1981] QB 720, 724.

[10] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 208.

[11] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 47 [65]-[67].

[13] Ciantar 46-7, [63]-[65] (citations omitted).

[14] Ibid 49 [75] (citations omitted; emphasis added).

[15] For example, no argument was put that, if the jury thought that it was a reasonable possibility that Ms Pratt was already dead by the time that the third shot was fired by the applicant, a verdict of attempted murder might be open: R v Cengiz [1998] 3 VR 720.

[16] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; 276 ALR 423. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492, 493; AE v The Queen [2011] VSCA 168, [39].

[20] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7, [113].

[21] Citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3 (Mason CJ, Deane, Dawson and Toohey JJ).

[22] R v Hughes (Unreported, 20 March 1990, Vic, CCA).

[24] R v Lowery and King (No 2) [1972] VicRp 63; [1972] VR 560, 561.

[25] R v Russell [1933] VicLawRp 7; [1933] VLR 59, 66-7.

[26] Likiardopoulos v The Queen [2012] HCA 37; (2012) 291 ALR 1, 6 [19]. See also R v Lowery and King (No 2) [1972] VicRp 63; [1972] VR 560, 561; R v Jensen and Ward [1980] VicRp 24; [1980] VR 194, 201; R v Lam [2008] VSCA 109; (2008) 185 A Crim R 453, 478 [92]; Kramar v The Queen [2013] VSCA 236, [27]-[28].

[28] The applicant's counsel argued orally that this may have been an endeavour by the applicant to protect Mr Krelekamp from harm, but it was open to the jury to infer that it showed that the applicant was encouraging Gibson, or had a relevant understanding or arrangement with Gibson.

Potter v The Queen [2013] VSCA 291

At a glance

Court

Decision date

Before

Source

Judgment (100 paragraphs)

Potter v The Queen [2013] VSCA 291 (18 October 2013)

Parties

Legislation Cited (1)

Cases Cited (12)