R v Camilleri [2001] VSCA 14

R v Camilleri [2001] VSCA 14 - VSCA 2001 case summary — Zoe

[17]

They left after only a few more minutes, with Camilleri driving. Beckett had the ropes and gags on the floor of the car in front of him. Once they reached the Cann River Highway they drove in the direction of New South Wales. At Camilleri's suggestion Beckett took clean clothes and changed out of his clothing, which was heavily stained with blood, put the discarded clothing with the ropes and gags and fell asleep. When he awoke they were near a lookout at the entrance to Canberra (Theodore Lookout). Camilleri told him to get a can of petrol from the boot and burn his discarded clothing. He did so, burning his shoes, socks, underwear, jumper, T-shirt and tracksuit pants. He burnt the ropes and gags too. Camilleri then drove to Tuggeranong shopping centre, where he bought a pair of shoes for Beckett, who, having burnt his own, had none. They paused for a light meal and set off again, with Camilleri still driving. By now it was about midday. They reached Lake Burley Griffin and on Camilleri's instructions, when the car was on the Commonwealth Bridge, Beckett threw their two knives out of the car window and into different parts of the lake. (One of the knives was later recovered by police divers. It was exactly the same as one which Beckett had been seen handling shortly before it disappeared from its owner's home.) Camilleri headed in the direction of Yass, where the two men lived, and Beckett fell asleep. When he awoke the car was pulled up at the side of the road outside Canberra. It was Camilleri's sister who woke him up and Camilleri drove the car to her home. Then the two men made a brief visit to Camilleri's former flat. Next they went to Beckett's flat, where the two of them were living with Andrew Smart. (Smart was dead by the time of the trial.) Camilleri's concern at this stage was to recover from Smart some money that was owed for drugs. The three men went into Canberra - apparently on Tuesday 7 October - and committed some crimes together. The three then drove to Sydney, on about Wednesday 8 October, still travelling in Camilleri's car, and stayed with Camilleri's brother, Michael Tierney, for several days. A few days later, when Camilleri, Beckett and Smart were in Campbelltown, they took Camilleri's car to a car wash named Car Lovers and spent six hours or more cleaning it most thoroughly. Not only the carpets but also the seats were removed. The carpet was shampooed and vacuumed several times. The boot was thoroughly cleaned, as was the outside of the car. (Camilleri was later to admit to the police that the three men had given the car a very good cleaning at about this time.)

[25]

Next a record of interview was made, 53 pages long. Because of the answers given in it, quite apart from its length, one cannot provide a summary of reasonable length which adequately conveys the tenor of the interview and its effect upon the mind. Those who wish to form an opinion on the strength of the Crown case should read it in full; we shall come back to it in dealing with the question whether that case can be described as overwhelming. It is enough now to note that in the course of the interview Camilleri said that after going to the music festival in Bega he and Beckett went under a bridge, where Beckett injected him with heroin and also amphetamine, and he went to sleep; that when he awoke Beckett was driving the car on the road between Bega and the beach - he himself being unable to drive because of the heroin - and that Beckett stopped the car and talked to two girls, who got into the back seat after Beckett had taken a television set from there and put it on the side of the road; that he then passed out; that they went to the beach, where Beckett and the girls were drinking while he went behind the surf club shed and prepared a mixture of heroin and amphetamine with which Beckett then injected him; that they all got into the car and he passed out; that when he came to he saw a sign showing that they were at the Victorian border and that he said to Beckett, "Take me back. What the fuck are we doin' all the way here?"; that Beckett then pulled up at a dirt track; that here Beckett injected him with heroin and he went back to sleep; that he then felt someone touch him on the head; that when he woke up they were on top of a big hill and Beckett was coming up from the bush; that he heard some screaming and then he woke up and Beckett was walking up the hill and had blood all over him; that he had been yelling out "Lindsay" for ten minutes before Beckett appeared, coming up the hill with blood all over him; that when he asked what had happened Beckett said, "I was having a shit and I fuckin' cut my finger"; that Beckett had a fair bit of blood on his pants, shoes and shirt but that he felt that a cut finger would explain that; that Beckett got in the car and drove off and that he told Beckett that he smelt like a slaughter house; that he then went back to sleep and when he woke up they were in Canberra; that Beckett set fire to something on the side of the road, using petrol, and that what he burnt was a plastic bag containing what Beckett said was all the papers from a stolen car - earlier in the interview Camilleri had described what was burnt as papers from a stolen car and then as "those clothes"; that Beckett then continued to drive and that when they reached Tuggeranong he bought Beckett a pair of shoes because Beckett told him he had left his shoes behind by mistake somewhere - earlier in the interview he had said that Beckett had asked him to buy a pair of shoes because there was blood all over his shoes; that when they were driving across a bridge in Canberra Beckett threw out of the window a knife which he said was broken; that Beckett probably threw two knives out of the window; that when they arrived in Sydney he saw a newspaper account about the missing girls and said to Beckett, "I hope you didn't do" - meaning kill - "those girls"; that while the two men were with the girls he might have said hello to them but that he did not talk to them because he was asleep most of the time; that after going to Sydney "we" had gone back to the place where Beckett had burnt the clothes and Beckett had burnt them again.

[27]

The Crown also relied on the evidence of Gillian Tulloh, a psychologist at the Goulburn prison. Her evidence was that she made a suicide assessment of Camilleri at the prison in November 1997, when he was depressed as a result of other criminal proceedings against him. The jury were simply told that there were events quite unrelated to the offences for which he was being tried by them. In fact Camilleri had been charged with several offences of rape against a child who was his de facto wife's daughter. The resulting trial had been aborted on 10 September 1997 and he was on bail awaiting retrial on those charges at the time of the Ms G. incident and at the time of these killings. Ms Tulloh gave evidence that she made a suicide assessment of Camilleri on 3 November 1997 and saw him again three days later. This was after he had been interviewed by the police on that day and had made the record of interview putting forward the agreed false story. When Ms Tulloh saw him on 6 November she knew he had been interviewed by the police about some matter but did not know what it was. She asked him what had happened and he told her that the police had been to interview him over the disappearance of the two girls in Bega. She said that in the course of her interview with him the accused was extremely distressed and had difficulty in maintaining a consistent train of thought. He said to her a number of times, of the police, that they knew about "the telly", and said that there had been a television set in the back of the car; that Beckett had told him that they had dropped it off at St. Vincent De Paul; that he did not know where he had been; that he had had a large shot of heroin and had blacked out; that the next thing he remembered was waking up in Canberra; and that he and "Mick" had found a bag of bloodstained female clothing and a towel at Beckett's flat and that they had used petrol to burn it. (In the latter part of his interview on 12 November Camilleri told the police that about ten days before that interview he had come across some clothes that belonged to Beckett with blood on them at the back of a laundromat in King's Cross when he was with his brother Mick and that he and Mick had burnt the clothing because they thought that Beckett was trying to set them up.)

[34]

What the judge told the jury about consciousness of guilt and his ruling on what pieces of evidence should be left to the jury as capable of corroborating Beckett's evidence were both affected by his view of the appropriate approach by a jury to the question of consciousness of guilt, particularly as regards the standard of proof to be applied. The connection between the two grounds was recognised by counsel, they being argued consecutively for Camilleri and together by the Crown. It should be made clear at the outset that notwithstanding the breadth (on one view) of ground 3(a) it has not been suggested as regards this ground that the charge suffers from imperfections which are commonly put forward when a trial is said to have miscarried by reason of failure to direct the jury in accordance with Edwards v. R.[5]. By this we mean that it is not, for example, contended that the judge failed properly to identify the lies put forward by the prosecution as manifesting consciousness of guilt; or that the judge failed to make it clear that what was relied on as a lie had to be shown to be a deliberate lie; or that the judge failed to make it clear to the jury that they could use the lie in the way suggested by the Crown only if they were satisfied that the accused told it because he knew that the truth of the matter about which he lied would implicate him in the commission of the offence. Nor is it suggested that the lies relied upon did not relate to a material issue, or that the need for this was not made clear to the jury, or that it was not open to the jury, having considered other possible explanations, to conclude that the lie was told because the accused knew that the truth of the matter would implicate him in the offence. The case is an unusual one, in that the real point sought to be made under ground 3 relates to a particular view taken by the judge - in this and, it would seem, other cases - and expressed by him in the passage in the charge from which ground 3(b) is drawn:

[48]

"MR MULLALY: [W]hat the Crown intend to do is to put this evidence forward and then confine it in some way that wouldn't permit the benefit that may arise from the proper direction as to the consciousness of guilt that the jury should get. HIS HONOUR: I would be quite happy to give it if you wanted me. [Emphasis supplied.] MR MULLALY: That's the difficulty. HIS HONOUR: The position, Mr Mullaly, is that when I spoke about the complication with respect to consciousness of guilt, I was rather thinking of myself than anyone else. MR MULLALY: But the difficulty arises that if the Crown, as the argument favoured them, were not wishing to put forward - - - HIS HONOUR: He capitulated to my obvious reluctance to introduce that question. MR MULLALY: That's right. ... [I]f the Crown ask that there be an inference drawn that if they were acting cooperatively after the event, that they therefore were acting cooperatively before, it raises this problem, that other inferences are open and to explain those other inferences it is necessary that the defence is put in the peculiar problem that ... arose that there may be other reasons of guilt for which these explanations follow. ... HIS HONOUR: I take your point in relation to this, Mr Mullaly, but I am confronted with a situation in which there are a series of actions undertaken for which they are both present after the event. I am going to have to provide to a jury an instruction as to how those actions can be viewed and the manner in which they can deal with them. It appeared to me that it may be possible to deal with this piece of evidence as just another incident of no different character from any of the other pieces of evidence. It is an instruction and an area with which I would have to deal in any event. The one thing that I did not think made sense was to elevate this particular piece of behaviour beyond any other piece of behaviour and, if one were dealing with the kinds of issues of the inferences to be drawn from behaviours after the event, various burning of the clothes and the cleaning and all that kind of stuff, are things with which I will have to deal. I can't avoid that. What would be the problem of incorporating this piece of evidence in that scenario as being just another piece of that type of behaviour?"

[53]

With all respect to the judge, who dealt with care with numerous problems in the course of this long trial, we can see no reason why the Crown should not have relied on Camilleri's record of interview of 6 November as evidencing consciousness of guilt. The same may be said of his oral statements which immediately preceded the interview. And if it was open to the jury to find that he had joined with Beckett in burning the bloodstained clothing and other items, and in disposing of the knives, and in cleaning the car, then we can see no reason why the Crown should not have relied on that conduct also as showing consciousness of guilt. In the discussion before the empanelling of the jury the judge was plainly proceeding on the basis that the evidence of the substantially identical false alibis and the other conduct after the killings would be before the jury. It was never suggested that the evidence was not admissible as bearing on whether the men were acting in concert before and at the time of the killings; plainly it was admissible for that purpose. If two persons have jointly committed a crime, it is on the cards that they will act in concert in the days following its commission and that this concerted action will be directed towards preventing their successful prosecution, by giving the same false account and by cleaning, destroying or concealing physical objects that may incriminate them. We find this happening all the time. We must say that it seems to us both sensible and proper that the jury should have been asked to consider in this case whether what the two men said and did shortly after the killings showed them to be men still acting together and doing so with a view to escaping punishment for their crimes. That the jury were asked to consider the subsequent words and acts only as bearing on concert notwithstanding its prima facie guilty character is, we are afraid, the result of the regrettable but understandable tendency, already mentioned, not to rely on guilty lies and conduct in appropriate cases.

[103]

Ground 6 asserted that the judge erred in failing to leave manslaughter to the jury. This was yet another ground in which the complaint did not reflect any application made at the trial by experienced counsel. Nevertheless, it must be accepted that in certain circumstances, even though counsel, for tactical purposes, either fail to take the point or even specifically ask the trial judge not to leave manslaughter, it may remain the duty of the judge to leave the possibility of a verdict for the lesser offence to the jury: see, e.g., Pemble v. R.[18]; R. v. Williamson[19]; Gilbert v. R.[20] The right subsequently to complain exists notwithstanding that counsel at the trial, assessing the effect of the evidence upon the jury and the atmosphere then and there pervading the trial, has seen it as less likely that the accused would be convicted if the alternative verdict was not left open to the jury. For that reason alone, without the need to look for further justification, it is essential that facts which might have given rise to an alternative verdict of manslaughter should not be merely speculative but should be clearly open on the evidence before the conclusion is reached that a charge leaving open a verdict of manslaughter should be given. It has been said that counsel frequently do not ask for a direction on manslaughter merely for the tactical purposes of their address, so that their apparent decision not to raise the matter before or during addresses can fairly be overlooked, but it is one thing for counsel to prefer the tactical simplicity of addressing the jury without the complications that dealing with a possible alternative verdict of manslaughter might cause, and quite another for counsel not to raise with the judge at an appropriate time the possibility of a direction which might lead to a lesser verdict. One should be loathe to ascribe to counsel, certainly experienced counsel, any failure properly to have regard to the possibility that such a direction might lead to an acquittal on the charge of murder, which is doubtless the reason why the rule of practice in Pemble was introduced.

[104]

In the present case no part of a very detailed and comprehensive charge raised the possibility of a verdict of manslaughter. Counsel on this application seemed to accept that manslaughter could not have been left to the jury on the facts of this case unless the Crown had also put its case on the basis of common purpose, in which case the possibility of a lesser offence being committed in the course of what might be then said to be planned rapes would have required a direction as to manslaughter. The difficulty with the argument is that the Crown never sought to advance its case on the basis of common purpose but confined it to the two bases, one dependent on proof of Camilleri's counselling and procuring[21] the death of the two victims, effectively by instruction, and the other dependent on proof of both Beckett and Camilleri acting in concert. It was argued that before counsel for the prosecution opened the case they had said that they wished to leave murder on the basis of common purpose, but that overstates the significance of the discussion. All that was said at that time, in answer to a separate preliminary submission, was that it was a third way of putting the Crown case which would have to be discussed later. When it was discussed later, the judge said that there was "a significant unreality" about the hypothesis put forward by the Crown that death or serious injury might have been caused by Beckett in circumstances where the original common purpose, as contemplated by Camilleri, was limited to the raping of the victims. From then on it seems that counsel for the prosecution desisted from any suggestion of such a basis in the opening or at any subsequent stage of the trial. Although the judge left open its resuscitation as a basis for liability, he did so only upon the basis that a change might arise depending "upon how the evidence falls". Counsel for the Crown accepted the judge's statements as to unreality and, not surprisingly, counsel for Camilleri was content to accept that the case against his client would not be put in this third way.

[106]

It was also argued that another possibility was raised in the course of both opening and closing addresses, namely, that the two victims were to be tied up and left, on the Crown's submission, to die, and, on the hypothetical defence case, merely at risk of death. Of course, the evidence was that they were tied and did die but from specific wounds so that the hypothetical case related to a different understanding or arrangement, which was said to have been breached by Beckett. A case based on leaving the victims to die was never put by the Crown as a basis for holding Camilleri responsible, nor in the circumstances was it reasonably open. It was mere speculation. It is one thing for defence counsel to suggest that the circumstances of a crime may have been different from those which the prosecution has put forward as the basis for a finding of guilt, in order that the defence might persuade the jury that all possible alternative hypotheses have not been excluded with the result that the case has not been proved beyond reasonable doubt; it is quite another for any one or more of those hypothetical alternatives to be put forward as a basis for finding the accused guilty, if there be no sufficient evidence to support any such alternative case. It would be irresponsible for the Crown to do so and wrong for the judge to leave a basis which could not be supported on the evidence, if only to avoid the possibility that the verdict might be challenged as being possibly based on a case which was not supported by the evidence at the trial. Cases such as Pemble usually arise out of a conviction of murder but judges should be careful not to put a hypothetical case of manslaughter to the jury when a conviction of that lesser but still very serious offence might be brought in by a jury, where that verdict could be attacked as having no support on the evidence. Forensic hypotheses of the kind suggested in argument were not and should not have been left to the jury as alternative bases of guilt.

[132]

92 The defence was conducted on the basis that, although Camilleri was in the car with Beckett when the girls got into it and remained in the car until some hours after they had been killed, he did no more than perhaps say hello to them, being for the whole of the time grossly affected by heroin and for most of the time insensible. On his case, he was conscious or awake only for a short time and on a few occasions - when the girls were encountered and Beckett, driving the car, talked to them and made room for them by removing the television set; when the girls were with Beckett at the beach and he, Camilleri, absented himself; when Beckett was away from the car murdering the girls; when Beckett used petrol to burn something; when the shoes were bought at Tuggeranong; and when Beckett threw a knife or two from the bridge in Canberra. The Crown was able to suggest to the jury with much force that Camilleri's version was intended to have him emerge from his stupor at convenient points at which he could describe events tending to incriminate his companion before lapsing into a stupor again. We do not think a reasonable jury would have regarded that account, put forward in the police interview of 12 November, as sufficiently credible to leave them in doubt about his guilt. It was an extraordinary and most implausible story, told with hesitancy and suffering badly from inconsistencies and improbabilities. It could not account for the damning seminal stain on Lauren's shirt: that stark and intractable fact could not be explained away. The idea that Camilleri was sunk in a stupor for most of the ten hours, becoming briefly alert only in time to observe certain notable events inculpating his companion, will not bear critical examination. Quite apart from the semen-stained shirt, how did Beckett single-handedly keep two girls prisoner during a ten hour journey punctuated by so many stops and so many sexual assaults? How, for instance, was it that one girl did not make her escape from the car while the other was being sexually assaulted by the only conscious male some distance from it at Ben Boyd National Park? What of the incidents at Wingan Point? Did one girl wait obediently in the car with the stupified Camilleri while Beckett raped the other in the forest? How can the beer carton marker on the log be explained on the defence case? If Camilleri was fast asleep at Fiddler's Creek, how did Beckett manage to get the two girls all the way down to the creek and kill them one by one? The improbability, indeed, the practical impossibility, of this is manifest from the independent descriptions of the country and the photographs. The defence case was that no rope was used to tie the girls' hands or lead them. How did one man control them? Each girl must have been in the most desperate fear for her life at that stage and have thought that nothing could be lost by trying to escape. One should read again Camilleri's extraordinary account to the police of what he saw and heard at Fiddler's Creek; and the whole of what he told them, both in the two formal interviews and otherwise; and the psychologist's evidence of what he told her at Goulburn Gaol; and what he said on two separate occasions about the burning of female clothing and a towel supposedly found behind a laundromat. It is all unconvincing and redolent of guilt.

[151]

paragraph [26] of the joint judgment. In so far as his Honour suggested that a finding that a lie has been told by reason of consciousness of guilt would in itself amount to holding that the person is guilty of the offence charged, I can well understand what the learned judge was driving at, but it was not an observation which should have been made to the jury who, I would venture to suggest, would find the relevant directions relating to consciousness of guilt difficult enough to comprehend. As I would understand it, the theory behind the reception of evidence of consciousness of guilt is that, if it is established, then the relevant conduct may be treated as an implied admission of guilt. But it is no more than evidence of such an implied admission and therefore must be weighed with all the other evidence in determining whether the prosecution case has been made out beyond reasonable doubt. This must be so however compelling the admission may seem, so that even explicit confessions still have to be tested by the jury appropriately: cf., e.g., Burns v. The Queen[35] and McKinney v. The Queen[36]. All I believe that the learned judge was adverting to was the stringency of the tests taken from R. v. Lucas[37], and adopted in Edwards v. The Queen[38], especially as they require that the jury must be satisfied, inter alia, that the conduct sprang from both a realisation of guilt of the relevant offence and a fear that the truth might be discovered. Implicit in the judge's reasoning, moreover, was his belief, as represented by his direction to the jury, that satisfaction as to consciousness of guilt by them had to be established beyond reasonable doubt. As a generalisation, that was likewise erroneous according to the well-known principles laid down in Edwards. Applying such a standard, the jury in making a finding of consciousness of guilt would, as a matter of practicality, necessarily be a long way down the track to concluding that the accused was guilty of the offences charged, however wrong it may be to tell that to the jury.

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Judgment (193 paragraphs)

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