R v Gill & Mitchell [2003] VSC 321

5. The witness Stanbury was originally charged with the murder of Lazo Krincevski. Following a contested committal hearing, the accused Gill and Mitchell were committed to stand trial on the charge of murder but Stanbury was discharged and was committed to stand trial on a charge that knowing Gill and Mitchell to be guilty of Krincevski's murder he did acts with the purpose of impeding their apprehension, prosecution, conviction or punishment. Mr Stanbury was arraigned on that charge on 3 February 2003 and pleaded guilty. In substance he claimed that in the early hours of the morning of 14 December 2001 whilst walking back from a nightclub to the premises of the accused Mitchell, he observed both of the accused in the front garden of a house at 80 Oriel Road. He found them standing over the body of the deceased and observed the accused Gill holding a concrete cover from a nearby telephone cable pit which he (Gill) attempted to slam down onto the head of the deceased. He then heard Mitchell say words to the effect "No, fuck him I'll do it" and Mitchell then picked up the concrete pit cover and holding it around head height slammed it down onto the deceased's head. He walked around the body urging the accused to go home and they all left the body returning to Mitchell's premises in Beatty Street. Subsequent forensic examination of clothing worn by Stanbury revealed that Stanbury had the deceased's blood on the cuff of his tracksuit pants and also some DNA on the rear of his singlet. The evidence at the trial has established that the deceased died from the combined effects of head injuries (consistent with the deceased being struck by the concrete slab) and multiple stab wounds. The evidence of the pathologist called by the Crown raises as a prominent hypothesis that the stab wounds were inflicted very shortly after the deceased was struck by the concrete slab whilst lying in the garden. In his evidence, Mr Stanbury deposed that he had no knowledge of how the deceased came to be stabbed. He testified that he saw no sign of stab wounds or blood and that he in the company of the two accused left the deceased's body and returned to Mr Mitchell's home in Beatty Street. The cross-examination of Mr Stanbury was to the effect that he had lied about his observations of the accused and that the accused had not performed the acts he attributed to them, it being put (in the less than satisfactory way) that Stanbury, perhaps in the company of another man named Allen, whom he had met at the nightclub, were responsible for the deceased's death.

8. Mr Stanbury and a number of other witnesses called by the Crown have all testified that both of the accused returned to Beatty Street in the company of Mr Stanbury. There is some evidence to the effect that upon their return an inquiry was made as to where the deceased was and that Mr Stanbury or one of the accused replied that he had run off.

11. When Stanbury was first interviewed by the police, he denied any knowledge of the circumstances in which Lazo Krincevski came to die. After he was charged with the murder of the deceased, he made a second statement on 11 January 2002 in which he gave an account that he was subsequently to repeat in testimony before this jury. Approximately one week before he was arraigned and pleaded guilty to the charge to which I have already referred, he made a further statement the material part of which was that each of the accused had talked about what they had done to the deceased and that he (Krincevski) had got what he deserved. He testified to this effect before the jury. In his first statement to the police Mr Stanbury, in addition to falsely denying any knowledge of how the deceased had died, claimed that the accused Michael Mitchell had also gone to the Breakers Nightclub that evening. This was false. Michael Mitchell was also to tell the police the same thing when they interviewed him on the day following the murder. The accounts given by Stanbury and Mitchell to the police strongly suggests that an agreement had been reached, at least between Stanbury and the accused Mitchell that they would provide a false alibi to the police. I have already referred to the evidence of some witnesses that when Stanbury and the accused returned to Mr Mitchell's home following the death of the deceased they provided a false account that the deceased had run away.

14. Mr Stanbury was sentenced on 1 April 2003. He was sentenced to a period of imprisonment of two years and five months with a minimum period of one year and 10 months before he would be eligible for parole. The sentence of imprisonment was suspended for a period of two years. The Sentencing Judge announced that the sentence imposed was a less severe sentence than would otherwise have been imposed because of an undertaking given on oath by Mr Stanbury to the Court that he would assist the Crown after sentencing in the prosecution of the accused Mitchell and Gill for the offence of murder of Lazo Krincevski.

17. There are decisions to the effect that a witness may be an accomplice even if he could not be charged as a principal offender with the crime with which the prisoner is charged. See R v Lewis[1]; John William Jennings[2]; and William Dixon.[3] These cases deal with thieves and receivers in which each is regarded as an accomplice of the other on the basis that each is particeps criminis in a broad sense. In each of these cases, it was held that the jury should have been warned that they may require corroboration when the only witness for the Crown on a charge of larceny may be the receiver of the stolen property.

20. A witness would not be an accomplice unless the witness was privy to the criminal intent of the principal offender. See R v Cramp.[4] A person who knows nothing of the crime until after it has been committed and is not privy to its commission but provides comfort or support to the principal, does not attract the rule which requires corroboration of the evidence of accomplices.

23. In R v Ready and Manning[5] recognition is given to the proposition that there are categories of witnesses who are inherently unreliable. The Court of Appeal observed:

"The rule in question recognises the temptation presented to an accused person to buy his own immunity from punishment by offering what is called king's evidence, true or false, against the alleged co-offender. Such a temptation does not exist in the same way in the case of an accessory after the fact whose interest lies in establishing if he can, the innocence of the alleged principal offender."[6]

27. The original reason for the rule as stated in Hale's Pleas of the Crown[7] was that there was a danger that a man involved in a crime would attempt to shift responsibility for it to another in order to curry favour with the prosecution and obtain leniency or an indemnity for himself. The raison d'etre for the rule does not rest upon the nature of the evidence which the accomplice gives but upon the class from which the witness comes which experience demonstrates is unreliable.[8]

30. In Forbes v R[9], the principal witness took possession of stolen goods from the accused in circumstances which raised a strong suspicion that the witness knew their nature and was himself a receiver with guilty knowledge. Dixon J (as he then was) regarded it as doubtful whether the witness was an accomplice but considered that the trial Judge had properly exercised the discretion vested in him to give the jury a warning in like terms to an accomplice warning.

33. The Court of Appeal in Ready and Manning, upon which the Crown relies, distinguished Forbes v R concluding that an accessory after the fact was not an accomplice as such a person would have no motive to exaggerate or lie about the role of the principal, but rather had an incentive to show the innocence of the principal offender.

36. In McNee v Kay[10], Sholl J. was much attracted to the approach adopted by Dixon J. in Forbes v R and expressed reservations about the reasoning of the Court of Appeal in Ready and Manning. His Honour observed:

"When one considers the possible and by no means improbable case of a witness seeking to minimise his own part in a crime from which he cannot in the circumstances hope entirely to disassociate himself, by reducing it from that of principal or of accessory before the fact to that of accessory after the fact by falsifying or exaggerating in evidence the part played by his associates or reversing his part and theirs. However that may be, if I were free to so to hold, I should consider the true principle to be that that person is an accomplice within the common law rule who is chargeable in relation to the same events as those found in the charge against the accused with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment as might possibly tempt that person to exaggerate or fabricate evidence as to the guilt of the accused."[11]

40. In Western Australia, the Court of Criminal Appeal in Khan v R[12] and Roddan v R[13] followed its earlier decision in R v Lewis holding that an accessory after the fact is not an accomplice. In Khan's case, the Court considered that though the witness was not strictly to be regarded as an accomplice, the trial judge should give such a warning where the judge considers a witness to come within the spirit of the rule as referred to by Sholl J. in McNee's case.

43. In Victoria, R v Ready and Manning is binding authority for the proposition that an accessory after the fact is not an accomplice for the purpose of the rule as to an obligatory accomplice warning. The decision in Ready and Manning has been followed in Victoria on numerous occasions. In Asikin and Carranceja v R[14] the Victorian Court of Criminal Appeal, applying Ready and Manning, reiterated that the accomplice warning does not apply to the evidence of an accessory after the fact. The Court had concluded however that there was no evidence that the primary witness participated in the offence. More recently in R v Heaney[15] the conflicting authorities on this question were acknowledged but not considered.

46. By contrast to the position adopted in some Australian jurisdictions the House of Lords in Davies v Director of Public Prosecutions[16] regarded persons who are in particeps criminis in respect of the crime charged, whether as principals or accessories before or after the fact as accomplices who would attract the obligatory warning where testifying on behalf of the prosecution. This approach was adopted in New South Wales.[17]

49. The discretionary warning articulated by Sholl J. in McNee v Kay and approved in Khan v The Queen anticipated the approach adopted by the House of Lords in Director of Public Prosecution v Kilbourne[18] that a warning about acting upon the uncorroborated evidence of a principal witness should be given whenever it can reasonably be suggested that a witness has some purpose of his own to serve in giving false evidence.[19] In Ling v R,[20] the Tasmanian Court of Criminal Appeal unfettered by binding authority, considered that it should apply the approach of Sholl J. in McNee v Kay noting such an approach had been favoured by the Ontario Court of Appeal in R v Meston.[21]

52. I anticipate that there will be evidence on which a reasonable jury could find that Mr Stanbury was a participant in the offence with which the accused was charged. It is the Crown case based on Mr Stanbury's testimony or the circumstantial evidence or a combination of both that it would be open to the jury to be satisfied that each of the accused and Mr Stanbury were all present when the acts which caused the deceased's death were inflicted.

55. An accomplice may not only have a motive to tell lies about an innocent accused, but is, as the Court of Criminal Appeal in R v Clarke[22] noted, peculiarly equipped by reason of his inside knowledge of the crime to convince the unwary that his lies are the truth. The account that Mr Stanbury has given, so far as it goes, is consistent with the head injuries suffered by the deceased, but his account provides no explanation for how the deceased came to have his throat cut or received the stab wounds to his abdomen and back. The evidence of the pathologist, will it appears, suggest as a prominent hypothesis that these injuries occurred after the head injuries which Mr Stanbury allegedly witnessed. The accused remained continuously in Mr Stanbury's presence until they returned to Mr Mitchell's house.

58. In the course of submissions, the Learned Prosecutor appeared to concede that it would be open to the jury to find that Mr Stanbury was particeps criminis in respect of the deceased's murder. At the very least it was open to the jury to conclude that Mr Stanbury had a motive to seek to disassociate himself from the acts which had caused the deceased's death by falsifying the account played by the accused and by falsely denying any knowledge of how the deceased came to be stabbed or have his throat cut. On his own admission Mr Stanbury was intimately connected with the events which immediately preceded the deceased's death. In the course of the Crown submission I indicated my view that a direction in the same form as an accomplice warning is necessary and practical where there is a perceptible risk of a miscarriage of justice. See R v Miletic.[23] I consider that the approach adopted by Sholl J. in McKnee and further articulated in more recent decisions accords with the interests of justice. Where a witness is chargeable with a different, but cognate offence, such as in the present case, it would normally be appropriate to apply the same kind of caution to such a witness' testimony as though he were an accomplice.

61. A trial judge is under an obligation to warn the jury of the danger of convicting on evidence which is potentially unreliable even though the evidence does not come from a witness who falls within a recognised class of witnesses about whom a warning should be given. Such a direction has, in some of the earlier cases, been described as discretionary or optional. Such a description is inclined to be misleading as such a warning is obligatory where it would be necessary to avoid the risk of miscarriage of justice. See Director of Public Prosecutions v Faure[24]; Hickey and Komljenovic v R,[25] R v Latina.;[26] and R v Heaney. In Faure's case the Court referred to witnesses whose evidence was "significantly tainted" or "inherently unreliable".[27] A witness cannot so be described merely because they have given evidence which may be wrong. These expressions require a "pre-existing proneness to or likelihood of unreliability which is inherent in the general nature of the witness or his or her relationship to the accused, the victims or the events." See Brooks v R;[28] Cf R v Aden & Toulle;[29] R v Georgiou[30] and R v He & Bun.[31] Mr Stanbury is such a witness.

64. Mr Stanbury may well be an accomplice. He is undoubtedly a witness who has "a significant interest in the outcome of the proceedings and whose evidence may either be fabricated or tailored to protect that interest." See R v Taylor and Minogue.[32]

67. In the circumstances of this case, I consider it would be a distraction for the jury to be invited to consider the issue of whether Mr Stanbury was an accomplice. On his own account he was so intimately connected with the critical events that I propose to direct the jury that he is a witness who should be viewed as potentially unreliable. I will direct the jury in accordance with the usual direction relating to accomplices which would include an instruction that it would be dangerous to act upon his evidence in the absence of corroboration.

70. There are suggestions in some of the cases referred to in Faure that such an approach is only required where the unreliable or tainted witness is the sole or principal evidence upon which the Crown case depends. The Crown relies upon a substantial body of circumstantial evidence which the jury could view as corroboration of Mr Stanbury's account. The Crown also contends that such circumstantial evidence is of itself sufficient to support a conviction. The fact that there is a body of evidence which might, independent of Mr Stanbury's evidence, support a conviction does not in my view detract from the imperative that a warning is required to avoid the risk of a miscarriage of justice. I consider that a warning in like terms to an accomplice warning should be given.

[1] (1906) 8 WALR 83 at 85 per Parker CJ.

[4] (1880) 14 Cox CC 390.

[5] [1942] VicLawRp 20; (1942) VLR 85.

[6] See R v Ready and Manning supra at 93.

[7] Hale, Sir Matthew (1972) (2nd ed.) Pleas of the Crown: a methodical summary, London, Professional Books at 305.

[8] See R v McLachlan [1999] VSCA 127; (1999) 2 VR 553 at 562 per Callaway JA., Booth v R [1982] 2 NSWLR 847 and (1982) 8 A Crim R 81, Reg v Gonzales-Betes [2001] NSWCCA 226.

[9] [1936] ALR 454.

[10] [1953] VicLawRp 71; [1953] VLR 520.

[11] See R v Ready and Manning supra at 528.

[12] [1971] WAR 44.

[13] [1998] WASCA 223.

[14] (1989) 42 A Crim R 402 at 417.

[15] [1999] VSCA 169.

[16] [1954] AC 378 at 400.

[17] R v Perry [1970] 2 NSWR 501 at 504.

[18] [1973] AP 729 per Lord Hailsham LC at 470.

[19] See also _Heydon, J.D.(1973) `_The corroboration of accomplices' Crim L.R., May 264 at 280-1.

[20] [1981] Tas R 250 at 279.

[21] [1975] 28 CCC 2d 497 at 508.

[22] [2001] NSWCCA 494; (2001) 123 A Crim R 506 at 547.

[23] [1997] 1 VR 593 at 605.

[24] [1993] VicRp 87; [1993] 2 VR 497 at 501 to 504.

[25] (1995) 89 A Crim R 554 at 567-569.

[26] Unreported VCA BC9601368 2 April 1996.

[28] (1999) 103 A Crim R 234; [1999] VSCA 5 at 10 paragraph 29 per Batt JA.

[29] [2002] VSCA 79.

[30] (2001) 119 A Crim R 363; [2001] VSCA 18.

[31] (2001) 122 A Crim R 487; [2001] VSCA 58.

[32] Vincent J.(as he then was) Unreported Ruling (No.29) Victorian Supreme Court 14 June 1988.