R v Gill & Mitchell [2003] VSC 317

2 Mr Stanbury has already pleaded guilty to and has been sentenced for the offence of assisting the accused to avoid detection or apprehension. As to the circumstances in which Mr Stanbury came to plead guilty I refer to my ruling given yesterday in which I concluded that a warning akin to an accomplice warning must be given with respect to Mr Stanbury. He has given evidence before this jury and what he has asserted must be approached with caution. As I indicated in my ruling yesterday, it is evident that Mr Stanbury falls within a category of witnesses in relation to whom a corroboration warning would be required and I will so instruct the jury.

3 Because of the submissions made on behalf of the accused, I think it desirable at the outset that I should refer to certain unexceptionable propositions concerning evidence which is capable of constituting corroboration. Whether evidence amounts to corroboration is governed by the fundamental principle that it must be evidence independent of the accomplice which tends to confirm that the crime was committed and that the accused committed the crime. See R v Baskerville[1]; Doney v R[2]; R v Kendrick[3]; R v Pisano[4] and R v Rayner.[5]

4 Brennan CJ. in BRS v R,[6] having adopted with approval the statement of O'Connor J. made almost 88 years ago in R v Peacock[7], observed:

"It is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends. There is no set formula, nor are there rigid categories of corroborative evidence. As Lord Hailsham said in R v Boardman, 'the rules of logic and common sense are not susceptible of exact codification when applied to the actual facts of life in its infinite variety.'"[8]

5 The qualities required of corroborative evidence were further considered by the High Court in Doney v R,[9] where it was stated that:

"In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: See Baskerville; Reg v Hester." The essence of corroborative evidence is the presence of some confirmation, support or strengthening of other evidence such that that other evidence is rendered more probable. Doney v R.[10] (Emphasis mine).

6 It is well accepted that corroborative evidence need not, by itself, prove guilt and it is not necessary that the corroborative evidence confirm all of the circumstances of the crime. In R v Rayner, Winneke P. referred to the essential requirements of corroboration.

"It needs to be remembered that the law does not require that corroborating evidence should itself prove that the crime was committed and that the accused was involved in its commission. ............. In truth, the essence of corroboration is that it is evidence coming from a source independent of the person to be corroborated which renders that person's evidence in a material particular more probable in the sense that it tends to show not only that the crime charged was committed but that the accused was involved in its commission: R v Baskerville's [1916] 2 K.B. 658 at 667 per Lord Reading C.J.; R v Kendrick [1997] 2 V.R. 699 at 708. It is not the essence of corroboration as I understood counsel to be submitting that the corroborative material should replicate the accomplice's evidence."[11]

7 Corroboration may be provided by circumstantial evidence and there may be independent facts and circumstances proved in a case which, whilst incapable individually of providing corroboration, in combination, are perceived as capable of having that effect. That corroboration may be constituted by circumstantial evidence is now beyond argument. See R v Baskerville, Doney v R, R v Rayner, R v Apps,[12] and R v Ngo.[13]

"The local classicus of what amounts to corroborative material is the decision in Baskerville. The decision in that case is not authority for the proposition that potentially corroborative material must itself prove the crime was committed and that the accused was involved in its commission. It seems to me that Mr Dickinson's submissions were almost going that far, because the view for which he contended was that the evidentiary material which her Honour left to the jury was `intractably neutral' to the issue whether the applicant was involved in the commission of the crime. As Brooking J.A. pointed out in R v Rayner,

'That most authoritative decision, [that is, Baskerville] itself shows clearly that the references to corroboration as evidence tending to confirm the accomplice's story do not require the corroborator to be a fly on the wall.: what is needed is `independent testimony which affects the accused by connecting or tending to connect him with the crime'. (Baskerville at 667) The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.'

In my opinion, each of the pieces of evidential material left to the jury as evidence capable of corroborating Pham was evidence which was independent of the person whose evidence was to be corroborated and was evidence which affected the applicant by connecting or tending to connect him with the rime. I therefore reject this ground."[14]

9 There may be independent facts and circumstances proved which are capable, in combination, of providing an independent source of corroborative evidence. Although a particular fact or facts looked at in isolation may not tend towards the implication of the accused, the combined weight of those facts may do so. Put another way, corroboration can be founded in a chain of circumstances. See R v Tadic & Gibb,[15] R v Kendrick, R v Nanette,[16] Conway v R[17](both in the Federal Court of Appeal and in the High Court), and R v D.[18]

10 The Full Court of the Federal Court in Conway v R made these observations:

"The jury was also told that in order to constitute corroboration, evidence need not implicate the accused directly in the commission of the crime but might do so indirectly as circumstantial evidence. That accords with both Kalajzich and Doney. Although the trial judge did not say so expressly, he made it perfectly clear that, while an item of evidence considered in isolation might not constitute corroboration, that evidence might be viewed as such when taken in conjunction with other evidence. His Honour's direction in that regard accords with the position at common law. Kalajzich at 429 to 434."[19]

Intractable neutrality and competing hypotheses

11 Counsel for each accused relied upon the intractable neutrality of individual pieces of evidence which the prosecution contended could provide corroborative evidence in this case; or on the fact that such evidence was too remote in time; or that such evidence was not disputed by the accused.

12 Counsel for each accused argued that because an alternative hypotheses could be advanced in relation to individual pieces of evidence, some of which they claimed were more consistent with innocence than guilt, the evidence could not be put before the jury as evidence capable of supporting Mr Stanbury.

13 Evidence is not capable of constituting corroboration if indeed the evidence is intractably neutral, in the sense that it is incapable of being perceived as supporting the evidence of the accomplice in a relevant way. The difference between evidence which is incapable of supporting a particular hypothesis and evidence which is capable of supporting competing hypotheses is critical. In the latter circumstance, it will be for the tribunal of fact to consider which hypothesis such evidence supports.

14 In the R v Tadic & Gibb the Crown relied upon certain evidence being capable of corroboration which concerned the sole of Dunlop shoes found in a bedroom occupied by the accused. That sole was said to match an imprint taken from gravel at or about the place of the robbery a few hours after it. The imprint did not allow the conclusion that the imprint was actually made by the accused's shoes. The Court of Appeal observed:

"......but that the chance that it was made by them could not be excluded. The jury was entitled to consider the probabilities which resulted from the `coincidence' between the location and freshness of the imprint and Tadic owning a pair which matched it. In our opinion this evidence was capable of constituting corroboration and the judge was entitled to leave it for the consideration of the jury in that regard. The respondent's counsel in our opinion correctly submitted that the evidence did have the necessary capability. It is important to bear in mind that our opinion says nothing as to the strength of the evidence; the strength was for the jury to determine. It is merely the `capability' of the evidence which is to be demonstrated. It is also necessary to bear in mind that corroborating evidence may be `circumstantial' and does not require establishment of any proposition beyond reasonable doubt. (R v Doney supra at p. 211)"[20]

15 In R v Lewis,[21] Beasley JA. of the New South Wales Court of Appeal reaffirmed what had previously been said in R v Camp[22]:

".....evidence relied upon as corroboration may be met, contradicted, explained (or questioned as to its credibility) does not deprive it of its character as evidence which the jury may accept as corroborative. In other words, it is a matter for the jury to either accept or reject the evidence, just as it is a jury question to determine whether, having accepted certain evidence, that evidence is corroborative of other evidence."[23]

16 The following passage from R v Rayner illustrates the approach required where there are competing hypotheses.

"It was submitted that the evidence of the finding of the applicant's thumb print on the passenger door handle of the prime mover was intractably neutral because it was submitted it could have been innocently left whilst the applicant was conversing with Ferguson at the Ascot Vale Hotel on the Sunday night or at the wharf on the Monday morning when the container was collected. Cf R v Kerim [1988] 1 Qd R 426 at 447 per Macrossan J. However, whether the evidence was in fact corroborative of Miller's evidence was, as His Honour was at pains to point out to the jury, a matter for them to decide in the light of the evidence which they accepted. In this case the applicant was asserting that he had nothing to do with the removal of the container from the wharf. That is what he told the police."[24]

17 In Hugo v R,[25] the West Australian Supreme Court of Appeal had these observations to make about corroborative evidence in quoting from Goonan v R:

"Evidence is not excluded as corroboration simply because it is consistent with both the case for the prosecution and the case for the accused. Stratford [1985] 1 Qd R 361 at 366; McK [1986] 1 Qd R 476 at 480; Kalajzich at 430-432."[26]

18 In Goonan v R,[27], the Court of Appeal constituted by Hunt CJ., Gleeson CJ. and Ireland J. observed:

"But as pointed out in Kerim at 447; and in Kalajzich at 432-433, whether a particular matter is capable of corroborating the guilt of the accused must depend on the issues at the trial, and even though it may have a consistency with both versions, it must nevertheless be capable of being regarded as being more consistent with guilt than innocence. It must possess some independent thrust and not be intractably neutral in its effect."[28] R v Ho[29] is to the same effect.

19 In relation to the accused, Jason Gill, it was submitted by the Crown and not disputed that items 1, 2, 3, 4 and 6 of Annexure A to these rulings constituted evidence which, either in isolation or in combination as part of a circumstantial case, were capable of being utilised by a jury as corroboration. During the course of submissions the learned prosecutor abandoned any reliance on item 9. Objection was taken by Mr Hartnett to item 5 being treated as evidence which the Crown could rely upon as corroboration. This item refers to evidence of animus between the accused and deceased exhibited in the front yard of the house at Beatty Street. Similar objection was taken to item 7, which concerns the V can found on the nature strip in Oriel Road a short distance from 80 Oriel Road where the deceased's body was found, and to item 8, being Mr Gill's injuries observed by investigating police some days after the deceased was murdered.

20 Mr Gill's ankle injury, it is not disputed, was sustained in the early hours of the morning of 14 December, but in circumstances, according to the defence, which were entirely innocent. Thus, the defence contends it could not be corroboration.

21 Mr Drake, on behalf of the accused, Mr Mitchell, did not dispute that items 1, 2, 4, 6 or 7 of Annexure B to this ruling were capable of being utilised by a jury as evidence capable of providing corroboration of Mr Stanbury's testimony. The Crown abandoned reliance upon item 8 during the course of argument. Objection was taken to item 5 being treated as capable of constituting corroboration, this being the evidence of the beer can found on the nature strip of Jellicoe Street adjacent to the garden in which the deceased's body was found.

22 Objection was taken to item 3. As I indicated during the course of argument, it was my view, and I so rule, that such evidence is evidence of nothing more than opportunity which, could not constitute corroboration. The Crown would be entitled to rely on such evidence as part of the circumstances explaining the accused's movements.

23 As illustrated by the cases to which I have referred, there are a number of problems associated with the method of approach adopted by Mr Hartnett and Mr Drake. Firstly, their approach does not incorporate the possibility that, considered in combination, a number of pieces of the evidence to which they object could provide support for the testimony to be corroborated. Such evidence involves a consideration by the jury of the various hypotheses open in the circumstances and the application to the issue by the jury of their experience and reason and their critical judgment of persons and human affairs.[30] Attention must be given in this process not only to the individual pieces of evidence but to their possible significance in combination.

24 Second, the fact that there are competing hypotheses which are said to arise does not render the evidence incapable of being corroboration. It appears to me that to exclude such evidence as corroboration misconceives the role of the trial judge. The weight to be attached to those pieces of evidence and the combined effect to be given to them are matters for the jury so long as the judge is satisfied that the evidence is capable in law of providing support for the evidence of the witness Lucas Stanbury. It is to be expected that there will be competing hypotheses open with respect to a number of items of evidence.

25 Whether or not a piece of evidence, in fact, provides support for the impugned witness whose evidence requires corroboration is essentially a question of fact to be decided by the jury, so long as it is capable of constituting corroboration. Generally speaking, a trial judge must be careful not to intrude into the fact finding task of the jury. Obviously, if the judge concludes that the evidence is incapable of providing support because no basis exists upon which a jury would be entitled to prefer the hypotheses consistent with guilt then, but only then, is the evidence intractably neutral. It cannot then constitute corroboration.

26 Each of the items which I have identified as being the subject of objection, has the quality necessary to constitute corroborative evidence although, as I understand the Crown's intention, the Crown will not seek to rely on these items of evidence in isolation but relies upon the combined force of all of these items.

27 To illustrate the point, let me refer to the "V can" and the "beer can". There is evidence which links both the V can to Mr Gill and the beer can to Mr Mitchell.

28 In the case of the beer can, the forensic evidence demonstrates that there was DNA of Mr Mitchell on the beer can. The beer can was found on the nature strip of Jellicoe Street immediately adjacent to the garden in which the deceased's body was found. The Crown case is that it is unlikely, as the defence may suggest, that it came to be in that position as a result of being thrown out of a car travelling in Oriel Road.

29 The V can contains blood spatter of the deceased on its lid. It also contains human DNA on the side of the can. As to the latter DNA, the forensic evidence excludes all persons from whom reference samples had been obtained, namely, Mr Stanbury, the deceased, Mr Mitchell and Mr Allen but leaves it open that it is Mr Gill's DNA. That is to say, Mr Gill is not excluded as the contributor of the DNA on the side of the can. There is evidence from some witnesses that Mr Gill took possession of a V can at or about the time that he and Mr Stanbury departed the 7-Eleven store a short time before the period of time when the jury may conclude that the deceased was murdered.

30 There is circumstantial evidence from which the jury might infer that both of the accused in the company of Mr Krincevski were in the course of an argument outside Beatty Street and moved out of Beatty Street into Oriel Road, moving towards Jellicoe Street when they were last observed by the accused Mr Mitchell's son, David. There is evidence of the deceased falling to the ground in the course of that argument in circumstances which are not explained by Mr David Mitchell's evidence. There is also circumstantial evidence, which the Crown does not contend is capable of constituting corroboration that a concrete telephone pit cover close to the corner of Oriel Road and Beatty Street was missing, that being in a location very close to the position in which each of the accused and the deceased were last observed by David Mitchell. There was also a telephone pit cover missing on the opposite side of Oriel Road near the garden on the corner of Jellicoe Street and Oriel Road where the deceased's body was found. It was in the vicinity of that open pit that the V can was discovered. A concrete pit cover, with the deceased's blood on it which came from the open pit in Oriel Road near Jellicoe Street, was on the ground close to the deceased's head. The pathologist's opinion is that the deceased's head injuries are consistent with being struck on the head with the pit cover.

31 The evidence capable of being corroboration will be identified for the jury. The jury may, in considering whether it regards any such evidence as corroboration, have regard to such parts of the circumstantial evidence as they see fit to determine what inferences should be drawn from the evidence said by the Crown to be corroboration. It is for the jury to determine whether such evidence confirms Mr Stanbury's account that he came upon the accused as they were getting over the garden fence into the property on the corner of Oriel Road and Jellicoe Street whilst the deceased lay on the lawn and then observed their action with the pit cover.

32 For those reasons, I rule that it is open to the Crown to rely upon those parts of the evidence to which objection has been raised as evidence capable of constituting corroboration of Mr Stanbury.

5. Animus towards the deceased in the front yard of the house.

6. The evidence of David Mitchell of events in Oriel Road.

Combined with evidence of noise heard by neighbours in particular P. Blight and J. Blight.

8. The injuries to Gill and in particular that evidence indicating an injury to his ankle after the encounter with the deceased.

9. Head injury to victim consistent with description of it being administered with a concrete pit cover.

1. Denied contact with deceased on that night - last saw him 12 to 18 months ago.

2. Initially told police that he went to Breakers that night.

3. Going outside when altercation between Gill and the deceased occurred.

4. The evidence of David Mitchell concerning events in Oriel Road.

Together with noise heard by neighbours in particular P. Blight and J. Blight.

5. Beer can with Mitchell's DNA profile in vicinity of deceased's body.

6. Told or was present when Cameron was told that there had been a bit of a tiff and Lazo had run off.

8. Head injury to victim consistent with description of it being administered with a concrete pit cover.

[1] [1916] 2 KB 658.

[2] [1990] HCA 51; (1990) 171 CLR 207.

[3] [1997] 2 VR 699.

[4] [1997] 2 VR 342.

[5] [1998] 4 VR 818

[6] [1997] HCA 47; (1997) 191 CLR 275.

[7] [1911] HCA 66; (1911) 13 CLR 619.

[12] Unreported VSCA BC 9802044 26 May 1998.

[13] [2002] VSCA 188.

[15] Unreported V CCA BC 9300826 31 August 1993.

[16] [1982] VicRp 8; [1982] VR 81.

[17] [2000] FCA 461; (2002) 209 CLR 203; (2000) 98 FCR 204.

[18] (1998) 71 SASR 608.

[19] Supra at 255-256 paragraphs 14-215.

[21] [1998] NSWSC 408.

[22] Unreported NSWCCA BC9603981 3 September 1996.

[25] (2000) 113 A Crim R 484; [2000] WASCA 199.

[27] (1993) 69 A Crim R 228.

[29] (2002) 130 A Crim R 545; [2002] NSWCCA 147.

[30] In preparing this ruling I have derived much assistance from a ruling given by Vincent J. (as he then was) in the matter of R v Camilleri [1999] VSC 162. That ruling was the subject of consideration by the Court of Appeal in R v Camilleri, and the ruling, save for one qualification which is not relevant to present issues, was not the subject of any criticism.