27 On 13 February 2003 the police interviewed Guthrie. In summary, Guthrie, stated that, on Saturday 8 February, Nuttal and he consumed a "slab" of bourbon cans of mixed drink and he was "pretty pissed - off me head as a matter of fact". During the evening, they drove to a number of places, including Liquorworks, although he could not remember everywhere they went as he was very intoxicated. He said that he suggested to Nuttal that they should "get" MacKay, to which Nuttal responded "Yeah, no worries, let's go". By "get" he meant to give MacKay a beating and take him down the river and kill him. They drove to the house of the deceased where Nuttal kicked in the front door and ran into Thomas' room and attacked him. He had told Nuttal prior to entering that they would go in "no matter what". Guthrie picked up a wooden stick from near the door and went to MacKay's bedroom and hit him with it, causing it to break. He then grabbed MacKay and put him in the back seat of the car and ordered him not to move. Nuttal dragged Thomas from the house and dropped him on the front porch. Thomas was making noises like "ahh", as he was breathing. Nuttal went to the car, reversed it into the driveway and they put Thomas into the boot. They then took their victims to the river in order to "give 'em a beltin'" and leave them there. By this stage, Guthrie realized that Thomas was going to die by the sound of his breathing and asked Nuttal what they were going to do. Nuttal responded "there's only one way to fix it, take 'em to the river ... and kill 'em". Nuttal suggested the location at which this would be done. When they arrived, Guthrie pulled MacKay from the car, hit him several times on the head and body with a club-lock, threw him into the water and drowned him. Nuttal then extracted Thomas from the boot, gave him "a few hidings with the club-lock" and they both dragged him down to the water (still alive) and drowned him "until the bubbles stopped". Guthrie's intention when putting the two victims into the water was to kill them. He did not throw the club-lock into the river, but placed it in Nuttal's car. They then burnt their clothes and had a few more drinks, although he conceded that the burning of their clothes may have occurred at another location. They returned to Nuttal's home, had a shower and went to sleep. Guthrie awoke in the morning and Nuttal dropped him off at Jason Keegan's house. Guthrie had decided to "get" MacKay, as they had had some prior conflicts, including an occasion, four months prior to this incident, on which he assaulted MacKay for demonstrating a lack of respect for his then girlfriend, Faye Thomas. He also said that there was a dispute with MacKay over his use of Thomas' bankcard and agreed that he may have made threats against MacKay after the earlier assault. He understood that Nuttal knew that he was going to "get" MacKay, but probably not in such a serious fashion. Nuttal was "all for it" he said, and prior to entering the home he told Nuttal that he would "get" Thomas. Guthrie subsequently discussed this incident with four people, Doug Gribble, his girlfriend Tracey Harnetty, Chris Gribble and Jason Keegan. He did not threaten Nuttal in any way, Nuttal did not try to stop him from assaulting MacKay and was "all for it".
Forensic examination of the crime scene
28 On 11 and 12 February 2003, police divers unsuccessfully searched the Goulburn River where the deceased were killed in an attempt to locate the club-lock which Nuttal asserted had been thrown there.
Forensic examination of both deceased
29 An autopsy conducted on the body of MacKay on 10 February 2002 by Dr David Ranson, a senior forensic pathologist, disclosed the presence of substantial areas of bruising and lacerations to numerous parts of the body; lacerations to the top and back of the head and an underlying fracture of the skull, with depression of the skull bone down in the cranial cavity; numerous fractures to the body, including the right side of the ribs, the back of the lower chest, the right side of the hip, pelvis and fibula; and water-logging in the lungs, together with a large quantity of sand and silt type material.
30 It was concluded by Dr Ranson that the injuries were caused by multiple applications of force to the body (in this case deemed to be severe) and the pattern and features of various areas were consistent with force being applied with a steering lock. In his opinion the cause of death was immersion, in a man with skeletal and soft tissue injuries. The injury to the head may have changed his conscious state, but the cause of death was drowning.
31 An autopsy conducted on the body of Thomas on 10 February 2002, also performed by Dr Ranson, revealed a large number of superficial post-mortem abrasions on the body, a fracture of the hyoid bone and a fracture of the thyroid cartilage on the right side of the Adam's apple region of the larynx. Sand and silt-like material were located in the lungs.
32 Dr Ranson was of the opinion that the haemorrhaging associated with the fractures in the neck indicated that Thomas was still alive after the fractures of the neck structures were caused. Such damage was more likely to have been caused by a compressive force. He concluded that the cause of death in his case was a compression of the neck in circumstances of immersion, although he could not say at what stage the compression occurred, that is, whether in the water or earlier.
The Case for the Prosecution
Guthrie
33 The prosecutor submitted that by pleading guilty to the murder of MacKay Guthrie had admitted the elements of the offence of murder and the appropriate and obvious decision was a verdict of guilty. Therefore the focus in Guthrie's trial had to be placed on the question whether he was guilty of the murder of Thomas because he claimed that it was Nuttal who killed the victim. However, the Crown argued, Guthrie and Nuttal were equally guilty of Thomas' murder even if Guthrie's version of events was accepted.
34 According to Guthrie's police interview, the two men went together to the house. MacKay was overpowered by Guthrie, who intended to kill him. He was aware that Thomas was already injured when he was brought out as he seemed to be experiencing difficulty breathing. Thomas was then placed inside the boot of the car by both men. It was apparent at this early stage, it was argued, that Guthrie was acting in a joint venture with Nuttal.
35 On their way to the river, Nuttal, according to Guthrie's record of interview, said "there's only one way to fix it. Take them down to the river and kill them". This, the prosecutor argued, was the clearest evidence in Guthrie's case of an agreement to kill both MacKay and Thomas and it was pursuant to that agreement that he then took MacKay from the car and ferociously attacked him with the wheel lock.
36 Having just killed MacKay, it was argued, he could not permit Thomas to leave the area alive. According to Guthrie, it was Nuttal who got Thomas out of the boot and gave him "a few hidings" with the wheel lock, while he stood there and watched. When Nuttal finished they both dragged Thomas to the river and, according to Guthrie, it was Nuttal who threw Thomas in the water and jumped on him, although Guthrie did admit to being involved in the process.
37 The Crown submitted that when all the evidence was taken into account, it was clear that Guthrie was acting in concert with his companion.
38 The prosecution submitted that Guthrie, on his own account, having just murdered MacKay, then watched as Nuttal removed Thomas from the boot and drowned him in the river. Counsel pointed out that nothing in Guthrie's presence or behaviour was suggestive of an attempt to stop what was occurring. He was not simply present, it was said, but actively supported what was occurring on his own description. Accordingly, the prosecution submitted, it was clearly beyond any doubt that Guthrie was guilty of the murder of Thomas whether or not it was his hand that held Thomas' head under water.
39 In relation to the defence contention that Thomas may well have been dead at the house, the prosecutor directed attention to Guthrie's record of interview in which he stated that Thomas was alive and struggling at the time they were at the river and they had to force him under the water.
Nuttal
40 The prosecutor argued that Nuttal could be held responsible for the charge of murder, even though it was done at the hands of another. Although there was no direct admission of any such agreement, it was said, the inference could be drawn that he was party to an agreement to kill MacKay and then Thomas, or that he agreed, by what he did or said, to at least bash the two victims and foresaw the possibility that MacKay and Thomas might be killed or seriously hurt. He further submitted that if the jury were not satisfied beyond reasonable doubt with respect to those propositions, they could be satisfied he was there, watching what was going on in both instances and, by his behaviour and presence, it was clear that he was aiding and abetting Guthrie when these two deaths occurred.
41 The Crown submitted that Nuttal blamed Guthrie for almost everything, saying that he was frightened of him and that Guthrie had threatened him. However, it was apparent, it was argued, that that claim was not true and constituted nothing more than an attempt by him to avoid responsibility. Nuttal stated he was largely not involved in the death of MacKay, but the evidence made clear that he was a part of a joint enterprise as he willingly drove Guthrie to the victims' home. Counsel pointed out that although Nuttal claimed that he understood that Guthrie only wanted to talk to someone, that claim was highly unlikely to be true given that the two accused were very close friends and that Nuttal later witnessed Guthrie get out of the car, kick in the front door, bring MacKay out, place him in the back seat and then return to drag out Thomas. Of particular damage to Nuttal's credibility, it was said, was the evidence of La Porta and Birth who said there was no one in the car nor anyone in the vicinity at around the time the deceased men were taken from their home.
42 With respect to the claim by Nuttal, when interviewed, that he drove Guthrie and their two prisoners to the river at Guthrie's direction, the prosecution argued that it was open to conclude that he knew where they were going and that he needed no direction from Guthrie.[3] He also knew, the prosecution submitted, what was intended to happen when Guthrie said to him "I want to teach these cunts a lesson".
43 With respect to what Nuttal claimed had happened at the river, the Crown pointed to the beginning of Nuttal's police interview where he made the admission of helping Guthrie drag MacKay to the water but then later retracted that by saying "I told him to stop, I pulled him away. He shrugged me off. I fell to the ground". It was then pointed out that, according to Nuttal, having seen Guthrie savagely beat MacKay with the wheel lock and then hold him under water, he did not drive away nor save himself. It was also significant, the prosecutor submitted, that there was no suggestion of any protest or fear in the early part of his interview.
44 When the evidence was considered carefully, the Crown submitted, it was apparent that Nuttal had entered into an arrangement with Guthrie that MacKay was to be killed or at least seriously injured. On his own version, it was argued, Nuttal watched Guthrie attack MacKay with the club lock and then assisted him to take MacKay to the water. It could, in all the circumstances, be concluded beyond reasonable doubt that he had formed an understanding or arrangement that Mackay was to be killed and it was open to conclude that he was acting in concert with Guthrie who then performed the fatal act of drowning this victim.
45 Nuttal, the Crown submitted, was equally guilty of the murder of Thomas. Again, or according to his own version, he put Thomas into the boot and locked him in there. He also told the police that he watched as Thomas was dragged to the river and held under water and drowned.
46 The Crown submitted the inference could be drawn that Nuttal was party to an agreement or understanding with Guthrie that MacKay would be killed. It followed that Thomas had to die as well and he helped that occur.
47 Counsel then submitted that whether Nuttal actually foresaw the possibility that Thomas would be killed, it must have become overwhelmingly obvious to him that this would happen when he witnessed MacKay's murder.
48 With respect to the possible responsibility of Nuttal as an aider and abetter of Guthrie, the Crown argued that he can be seen to have assisted and supported Guthrie by his presence and behaviour. By his conduct, he clearly indicated to his friend that he approved of and encouraged his actions.
49 With respect to Nuttal's defence of duress, the prosecution submitted that it could be safely dismissed as nonsense. He had not even asserted that any threat of death or really serious injury was made. The prosecution heavily challenged the claim that a threat of any kind was even made, submitting that these were two good friends who had been drinking together before they went to the house of the deceased.
The Case for the Defence
Guthrie
50 Counsel for Guthrie submitted that the purpose in going to the victim's house, was exactly as Guthrie succinctly put it, to "get" MacKay. It was equally compelling that once there, it was Nuttal who kicked in the door and then went to Thomas' room. At that point, if not earlier, Guthrie was aware of the possibility of Nuttal assaulting Thomas. But, counsel submitted, there was a vast difference between knowing or realising that Nuttal was going to assault Thomas and foreseeing that Thomas would be deliberately killed or caused serious injury. That, counsel argued, was totally and utterly beyond anything that could be on Guthrie's mind and he was single-mindedly concentrating on MacKay in any event.
51 Counsel submitted that the proper verdicts in the circumstances were guilty of the murder of MacKay and guilty of the manslaughter of Thomas.
52 In essence, it was argued, Guthrie could be found guilty of manslaughter if the Crown proved that Thomas was killed during the course of an understanding or agreement to assault Thomas in which Guthrie was present and that he foresaw that Thomas might be subjected to an assault constituting an unlawful and dangerous act.
53 Counsel argued that although the jury might find that Guthrie was aware that Nuttal was assaulting Thomas and aided and abetted him in this conduct, they should not conclude that he foresaw that Nuttal possessed the intention of killing him or that the causing of really serious injury to Thomas would occur. Counsel dismissed the Crown argument that Guthrie had good reason to dislike Thomas, submitting that there simply was no foundation for that inference.
54 In relation to the issue of the time of the death of Thomas, it was submitted that the question was not whether he died at the house, but whether Guthrie acted to assist in his killing. The jury could not be satisfied, he argued, that Thomas was still alive when he was placed in the water. Guthrie, he said, in his intoxicated state, may well have wrongly assumed that Thomas was still alive at that stage.
55 Counsel submitted that in testing the reliability of the answers that Guthrie gave to the police when interviewed, regard needed to be had to the circumstances. It was well known that drinking can lead to loss and vagueness of memory. Thus, it was claimed, Guthrie may well have been trying to tell the truth, but was wrong on some matters.
56 Counsel submitted that Guthrie knew he murdered MacKay and it was reasonable to conclude that he remembered that in detail and with considerable clarity. He knew he was involved in the death of Thomas and it was perfectly understandable in the situation that he took on blame for that too but that he may not have been right.
Nuttal
57 Counsel for Nuttal submitted that, although Guthrie and his client were friends, what Guthrie did on that night was very different from anything that Nuttal had previously experienced. Guthrie was dominant in their relationship to the extent that when he had to go anywhere, Nuttal was the driver and when he spoke, Nuttal obeyed. Guthrie, he submitted, was a bully and it was he who had a grievance against MacKay. Guthrie had a motive for violence towards MacKay, and a number of witnesses gave reliable evidence of a savage beating. Thomas, in asking Guthrie to leave the premises and then at Christmas saying that he would never drink with him again, made him a marked man in Guthrie's mind. Counsel emphasised Nuttal's complete lack of involvement in those events. He was not there, it was pointed out, when MacKay was assaulted by Guthrie and there was absolutely no evidence to suggest any form of motive or suggestion of hostility between Nuttal and the two victims.
58 Counsel submitted that Nuttal told police that Guthrie requested that he take him for a drive to go and see someone. The question to be asked at this point, he argued, was whether there was any evidence of any form of agreement to do anything else, answering himself that there was not.
59 With respect to the state of the front door to the premises, counsel submitted that it was clear that the door had been opened with considerable force and referred to Nuttal's record of interview in which he gave the description of a hip and shoulder to the front door. Counsel submitted that Nuttal wandered down the driveway to have a look at what was going on which was consistent with what any reasonable person would do in the circumstances. It was further submitted that there was no reliable evidence that Nuttal went inside the premises.
60 Counsel argued that the Crown's suggestion that this was a "two man job" was wrong as Guthrie was a man on a mission, fired up with hostility particularly towards MacKay and he did not need help.
61 With respect to Nuttal rendering assistance to Guthrie in putting Thomas in the boot out of fear, counsel urged that the manner in which Guthrie behaved on that night was such that any reasonable person would be intimidated, as indeed Nuttal was. His protests and his perception of a threat, before Thomas was placed in the car, were inconsistent with the evidence of some agreement or understanding or an arrangement to kill or to cause really serious bodily injury to either man.
62 As to the drive to the river, it was said that Nuttal drove under Guthrie's direction. Counsel submitted that much had been made by the prosecutor about Nuttal's navigational abilities and how he was able to find the location with ease when he returned with the police. However, in response, he argued that, as the driver, Nuttal was probably more aware of his surroundings and, in any event, there really was not much to finding the location.
63 With respect to common purpose, counsel submitted that it was not apparent, on the evidence, that it was Guthrie's intention to assault McKay until he did precisely that. Counsel submitted that Nuttal did not know what was going on until Guthrie dragged MacKay out of the car and started attacking him. It was further put that, by the time the applicants had arrived at the river bank, all Nuttal had done was assist in putting Thomas in the boot and driven and those actions were undertaken out of fear.
64 Although Nuttal witnessed the assault of MacKay, counsel submitted his mere presence was not enough and that he had done nothing beyond merely being there. With respect to Nuttal's statements when interviewed, counsel argued that what needed to be borne in mind was the stress and strain that he was under when trying to "get his story out".
The Grounds
Grounds 1, 2 and 3 - Nuttal
65 These grounds were argued together and can be appropriately addressed in the same way. Essentially, two propositions were advanced. First, it was contended that, in the particular circumstances and whatever instructions may have been given to the jury, a fair trial of the applicant could not have been had once he was jointly presented with Guthrie. This argument was based upon the claimed inevitable impact of Guthrie's video recorded interview with the police in which he attributed a role and actions to Nuttal that went well beyond Nuttal's own admissions and concerning which there was no evidence admissible in Nuttal's trial. Whilst it was accepted that, of itself, the attribution of a different or greater role to one accused by another in his police interview would not necessarily or even normally require the separation of their trials, counsel submitted that the impact of the particular interview would inevitably have been powerful for more than one reason. In this context, the argument proceeded, it had to be borne in mind that Guthrie described in graphic and compelling detail what had taken place and it was evident his "demeanour was such that he was clearly concerned to give truthful answers to those questions put to him." The members of the Court were requested to view the recording that was played before the jury and invited to conclude that Guthrie would have been regarded by any juror as convincing and honest. His credibility, it was said, would have been further enhanced by reason of the essential conformity of his version with other evidence adduced in the trial. Secondly, the claim was made that, in any event, the instructions that were given to the jury were inadequate in that they did not sufficiently emphasize the care that needed to be taken in the circumstances to ensure that the jury did not rely upon evidence that was inadmissible in Nuttal's trial or be influenced in any way by it.
66 This case is somewhat unusual in that reliance was placed by counsel for the applicant, in support of a claim that there has been a miscarriage of justice, on well entrenched and important principles designed to protect accused persons against the unreliable and inadmissible assertions of co-accused, on the basis that it would be apparent to any observer who viewed the video recording that the co-accused appeared, at least, to be endeavouring to tell the truth. Having viewed the recording, we are by no means convinced that Guthrie was either entirely forthcoming or accurate in his description. It is also clear that he was concerned to attribute to Nuttal what could be described as at least an equal share of responsibility for conduct that, on any version, he had initiated. Such observations, we think, would almost certainly have been made by some of the jurors. Be that as it may, the question remains whether separate trials were required in these circumstances.
67 In response, counsel for the Crown submitted that the exercise of discretion by the trial judge not to order separate trials was unimpeachable. We agree. His Honour directed attention to all relevant principles and considerations enunciated in the authorities.[4] He directed attention to the manner in which the prosecution case advanced against each accused was formulated, the matters which it was submitted on behalf of Nuttal would create special prejudice and whether any possible prejudice or impermissible use of evidence could be addressed by the provision of appropriate instructions. We are unable to detect any error in his Honour's approach to any of these matters and there is nothing in the circumstances that suggests that his exercise of direction may have miscarried.
68 All persons allegedly concerned in the one crime should be dealt with together, particularly if there is no issue as to the presence of all of the accused at the crime scene and where one accused seeks to cast blame on other accused: R. v. Vollmer.[5] The fact that a co-accused is of previous good character and their out of court version is credible and more likely to be accepted by a jury is not of itself a reason to order separate trials: Vollmer.[6]
69 The apparent credibility of an out of court statement based upon a video recorded interview with the co-accused will not usually give rise to the need to order a separate trial. The fact that the co-accused alleges, out of court, that he was coerced by the other so far from being a reason for separating the trials will generally be a reason for adhering to a joint trial regardless of whether the allegation appears credible. It has often been stated that it would usually be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts: R. v. Demirock;[7] R. v. Gibb and McKenzie;[8] Webb v. The Queen.[9] The argument in favour of a joint trial apposite to the present case was again emphasised by Callinan and Heydon, JJ. in Ali v. The Queen:[10]