R v Heaney [1999] VSCA 169

2. The directions given by the learned trial judge as to the danger of convicting upon the evidence were insufficient to properly convey to the jury the real dangers that existed in this case.

3. The learned trial judge erred in not discharging the jury when inadmissible material was presented to the jury."

The most convenient course is to give an overview of the facts, then to deal with grounds 2 and 3 and finally to turn to ground 1.

17. The applicant first met the deceased, Tania Piatkov, in about 1989, when they were aged about 34 and 22 respectively. They formed a lesbian relationship and lived together at several addresses in the Geelong area. For at least six months prior to the time of her death the applicant and the deceased were engaged in trafficking in amphetamine. The applicant was not a user but Miss Piatkov was. She frequently took amphetamine in liquid form and, when it was combined with alcohol, her behaviour could become erratic and violent. There was evidence of such violent conduct when Miss Piatkov, the applicant's sister Coral Cornwell and a man called Chris Hill travelled to Sydney and Brisbane with a large quantity of amphetamine which they intended to sell. It was shortly after Miss Piatkov's return from Queensland that she disappeared.

20. The Crown case was that the applicant had procured her murder. According to one Anthony Engels the applicant spoke to him about a week or ten days before Miss Piatkov's death and asked him whether he would kill her. A price of $10,000 was discussed and it was arranged that the deceased would come to Engels's house with some amphetamine a couple of days or a week later. That did not occur but about a week later, according to his evidence, the applicant and two others arrived at his house after dark in a car ordinarily used by Miss Piatkov, whose body was in the boot, cold and wet and wrapped in a sheet. They left and Engels buried the body. He subsequently pleaded guilty to assisting an offender and was given a wholly suspended sentence of 20 months' imprisonment.

23. The applicant was presented together with one Russell Joseph Welsh, who was also charged with assisting an offender contrary to s.325 of the Crimes Act 1958. He was convicted but his conviction was quashed on appeal: see R. v. Welsh [1998] VSCA 138.

27. It was common ground, both at the trial and before us, that an accomplice warning was required with respect to Engels and a Faure warning with respect to Cornwell. Accordingly there is no need to consider the conflicting authorities on the question whether an accessory after the fact was an accomplice for present purposes or the application of those authorities to an offender against s.325 of the Crimes Act: see Cross on Evidence (5th Australian edition 1996) at [15085] and R. v. McLachlan [1999] VSCA 127 at [26]. Engels was certainly the kind of witness for whom an accomplice warning is designed. Similarly I do not stay to consider whether the direction in relation to Cornwell is best described as a Faure warning.

30. Both warnings were given. The arguments advanced under cover of ground 2 were that the warnings were not sufficiently strong and, in the case of the accomplice warning, that part of it was not given with the authority of the judge's office.

33. His Honour first explained that Engels was capable of being considered an accomplice and that, if the jury decided that he was an accomplice, there were certain directions that they were bound to apply when considering his evidence. There followed a standard direction as to why, in the experience of the law, the evidence of accomplices is frequently unreliable and an injunction to consider that it is dangerous to convict an accused person upon the uncorroborated evidence of an accomplice. The concept of corroboration was explained and the jury were directed that there was no corroboration of Engels's evidence.

"So I repeat to you the way you should approach the evidence of Anthony Engels in the circumstances of this case. First, you should remember that it is dangerous to convict an accused upon the uncorroborated evidence of an accomplice. Second, you should know that you are entitled to convict an accused on the uncorroborated evidence of an accomplice, but you may only do so after you have subjected the evidence to close scrutiny and by such scrutiny have reached a conclusion that in the particular case it is safe to rely on the evidence, notwithstanding that it is uncorroborated and comes from a tainted source.

The defence have made trenchant criticisms of Mr Engels whom they submit you should not regard as a witness of truth. Apart from the disability he labours under, being an accomplice, your attention has been [presumably 'drawn' or 'directed'] to his drug taking at this time, and to the fact of his criminal record which includes offences of dishonesty and violence. It has been put that Engels had a very real motive to lie to save his own skin, not only by distancing himself from any involvement in the killing, but also to obtain the best possible deal for himself in terms of any sentence to be imposed upon him. It was submitted that Engels' account of Mrs Heaney, a person he did not know well, offering him money to kill Tania Piatkov and subsequently arriving unannounced with the body for him to dispose of, was quite ludicrous and defied commonsense. Discrepancies in his evidence with that of other witnesses were pointed out. For example, his claim that the policeman, Bourke, commented on the fire he had lit to burn Tania Piatkov's clothing was not supported by Bourke. And his evidence of sharing amphetamines with his boarder, Fiona Di Gracano, was not confirmed by her. There are a number of other criticisms which I will mention when summarising the arguments of defence counsel.

The Crown acknowledges that Anthony Engels is no paragon of virtue, but submits he was a frank and honest witness and that you should accept that it was his conscience that caused him to contact the police. As to why Mrs Heaney would contact him to kill Tania Piatkov, the Crown submitted that, given his past criminal record, he was a logical choice. Moreover, since he had initially agreed to kill Tania Piatkov, there was nothing illogical in bringing her body to him for its disposal. If Engels' motive in contacting the police was solely to do a deal for himself, the logical time to come forward, submit the Crown, was after he had been informed by Mrs Heaney on 18 January 1995 that police investigating the disappearance of Tania Piatkov had mentioned his name. Those are some of the issues relating to the credibility of Anthony Engels."

42. His Honour then said that, although she was not an accomplice, the credibility of Cornwell was also extremely important. There were a number of factors relating to her which gave rise to his instructing the jury as to the dangers inherent in her evidence and the need to look for other evidence supportive of it. In addition to using the language of instruction, the learned judge prefaced his list of those factors with the words "The factors to which I alert you are as follows:". (Emphasis added.) The jury were then directed that there was no specific independent evidence capable of supporting Cornwell's testimony and that, in consequence, they should scrutinize her evidence with care before acting upon it. It was also said that the defence criticisms of Cornwell's evidence largely reflected the factors to which the judge had drawn their attention and the Crown's response was briefly summarized.

45. An exception was taken to the effect that the warnings should have been in stronger terms. His Honour did not uphold the exception as such but did give a further direction at the conclusion of his response to a jury question regarding the elements of the offence. The last thing the jury heard before they retired for the second time to consider their verdict was:

"Members of the jury, in going through those elements, I have very briefly touched on the issues and the arguments raised by the Crown and by the defence. But you will appreciate that those arguments by both sides were a lot more detailed. You will appreciate particularly the criticisms made of Mr Engels and Miss Cornwell by the defence. I have not gone through them in any detail. You will remember that Mr Engels is an accomplice and you will remember my warning about the way you approach the evidence of an accomplice. You will also remember my warning about the disabilities under which Miss Cornwell labours. I do not want to go through all those again, or I will be delivering the charge to you again, but you should bear those steadily in mind. I do not want you to think this is a one-sided presentation; I think I need to stress to you that there are those matters. The Crown case depends, virtually entirely, on Mr Engels. Unless you are satisfied beyond reasonable doubt about his evidence, there is no case - the case against Mrs Heaney falls on murder and on the other charge. If the charge of murder falls against Mrs Heaney, Mr Welsh cannot be guilty either. So I remind you of those matters, without going into them in any detail."

It will be observed that that was not simply a reminder of the arguments of counsel. Beginning with the words "You will remember that Mr Engels is an accomplice ..." the jury were reminded of the warnings they had been given with respect to both witnesses, i.e. directions with the authority of the judge's office.

50. It is also worth bearing in mind, when we come to ground 1, that the Crown case was said to depend, virtually entirely, on Engels and that the jury would have to be satisfied beyond reasonable doubt about his evidence.

53. I do not accept the criticisms that were made of the answer to the jury question that preceded the passage set out in [12] or consider it necessary to deal with them in detail. All that his Honour was doing was relating the evidence to the elements, as this Court frequently says that trial judges should do. As the applicant called no evidence, it is not surprising that the evidence so related was that on which the prosecution relied. Quite apart from the peroration with which the answer concluded, the jury were reminded of the way in which the defence sought to meet the Crown case.

56. I return to the passages in the charge partly summarized and partly set out in [9-11]. In the case of both Engels and Cornwell, his Honour referred not only to the criticisms levelled at their evidence by the defence but also to the Crown's response. Mr. Kent submitted that that unduly detracted from the force of the warnings. I do not accept that submission. It was also contended that only part of the accomplice warning was given with the authority of the judge's office because the paragraph beginning "The defence have made trenchant criticisms of Mr Engels ..." was simply a recitation of counsel's argument. Although there is some overlap between the accomplice warning and the impugned paragraph, the contention pre-supposes that Engels's evidence required a Faure warning too.

59. Fact-finding is the province of the jury and the judge should not interfere unless there is good reason to do so. See R. v. Miletic [1997] 1 V.R. 593 at 605-606, R. v. J. (No. 2) [1998] 3 V.R. 602 at 636 and, in the context of Faure warnings, R. v. Latina (unreported, Court of Appeal, 2nd April 1996) in the judgment of Southwell, A.J.A. at 10 where his Honour quoted the following passage from R. v. Campbell (unreported, Full Court, 14th November 1994):

"Whether such a warning should be given, and if so, what will amount to an adequate warning must depend on the circumstances of each case. It does not follow that in every case in which there is an attack on the credibility of a witness or a group of witnesses the judge is under a duty to give a warning which emanates from the judge and bears the weight of judicial authority. This is so even if the impugned witnesses have convictions or bear some characteristics which may, on one view of the evidence, render them unreliable. The duty to warn in the manner contemplated by Faure's case arises in cases in which the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasised by the judge. It then becomes necessary to give a warning which emanates from the judge with the weight of judicial office. Cases where a warning of this kind is necessary will often be ones in which the factors which make witnesses unreliable exist independently of what view the jury takes of the witness's evidence. Faure was such a case."

See also R. v. Brooks [1999] VSCA 5; (1999) 103 A.Crim.R. 234 at 243-246, R. v. Sotiropoulos [1999] VSCA 115 at [20] and R. v. Mazzolini [1999] VSCA 150.

64. Generally speaking, where a judicial warning is required, it is usually incumbent upon the judge to explain the reasons for the warning. Thus, in the case of a Domican warning, the jury must be instructed as to the factors which may affect the consideration of the identification evidence in the circumstances of the particular case: see Domican v. R. [1992] HCA 13; (1992) 173 C.L.R. 555 especially at 562 and 564. In the case of a Faure warning, the judge should draw attention to the special factors that call for the warning: see Director of Public Prosecutions v. Faure [1993] VicRp 87; [1993] 2 V.R. 497 at 504 as explained in later cases. In the case of an accomplice warning, the judge tells the jury the reasons why they should look for corroboration and consider that it is dangerous to convict on the uncorroborated evidence of an accomplice. That is what his Honour did in the present case. The other features of Engels's evidence to which attention was drawn were not, to adapt or paraphrase the language of R. v. Campbell, such that it was unsafe to assume that the jury would heed the arguments of counsel even if they were repeated and emphasized by the judge. Unlike the reasons for close scrutiny of Engels's evidence because he was an accomplice, they did not need to be incorporated in a binding direction.

67. For these reasons I would not uphold ground 2.

72. An edited video-taped interview with Welsh was played to the jury. By inadvertence some questions had been excised from the video but not from the transcript. The learned judge noticed the discrepancy almost as soon as it became apparent, stopped the video and confiscated the transcripts. Counsel for Welsh applied for a discharge of the jury. Counsel for the applicant asked his Honour to wait until the conclusion of the Crown case. He expressly said that he was not making an application for discharge at that stage. His Honour refused the application that was made on behalf of Welsh, declining to delay consideration until after the close of the Crown case. His ruling discloses that the jurors were looking at the current page and the next page of their transcript. They were not otherwise reading ahead. The questions that should have been excised related to a suggested meeting between the applicant and Welsh. Counsel did not submit below that they prejudiced the applicant. His complaint related to an earlier part of the interview that was already before the jury without objection.

75. Mr. Kent submitted that the events I have summarized detracted from the appearance of a fair trial but conceded that they were not enough on their own to warrant appellate intervention. He asked us to bear them in mind, together with the inevitable prejudice arising from the jury's knowing about the applicant's involvement with amphetamine, when we considered the other grounds of appeal. I have done so, but in truth ground 3 is without substance.

80. Ground 1, as pleaded and argued, impugns the testimony of two of the prosecution witnesses. It does not invite a review of all the evidence.

83. Engels testified that about a week or ten days before Miss Piatkov died the applicant telephoned him and arranged to come out to his house at Portarlington. They walked across to the beach and a conversation took place which the witness described as follows:

"I can't recall exactly what was said. There was some conversation about something that Tania had done in Queensland, I'm not sure what exactly that was, but at some point Lyn asked me if I would kill her for her. There was $10,000 discussed in that at some point as well. There wasn't much asked about how I'd do it or anything like that. She did ask about if there was any noise, and I did say she wouldn't scream to her. We worked out that Tania would come to my house with some amphetamines at a later period, perhaps a couple of days or a week. The conversation was reasonably short, it was only 10 or 15 minutes, then from there Lyn left."

Although Engels said that he would kill Miss Piatkov, his evidence was that he did not intend to do so but planned to warn her and "scam for the money type of thing". The applicant telephoned a few days later and said that Miss Piatkov would not be coming because of car trouble.

88. One of the criticisms made of that conversation is its lack of detail, but Engels did explain that he was looking for money for a business venture at the time, that he specifically recalled the applicant's asking about the risk of noise, that at one point she said, "I've got to kill her" and shrugged her shoulders and that, whilst he was not sure what had happened in Queensland, he recalled an allegation that the deceased had tried to stab someone. Cornwell's evidence was that there had been a violent incident at a motel in Brisbane in the course of which the deceased stabbed a door, pointed a knife at people and cut Hill's brother on the face and leg.

91. Returning to Engels's evidence, some four or five days later the applicant arrived at his house by car just after dark. (In cross-examination he said it was probably after nine o'clock.) She was accompanied by a man and a woman, neither of whom the witness knew. The car was a brown Magna, which he believed to be the deceased's car. When Engels came out, the applicant wound down her window and said, "we've done it" and that the deceased was in the boot of the car. She and her male companion then went to the boot, which they unlocked. Inside there was a body rolled up in a sheet. Engels lifted it out of the boot, noticing that it was wet and cold, and laid it under a large shrub. After a short discussion to the effect that "nothing can ever be said about this", the applicant and her companions left. They had been there no more than about 20 minutes. The applicant gave Engels about half-an-ounce of amphetamine and said she would contact him the next day.

94. Engels was not sure whether there had been any discussion about the disposal of the body. He thought they were under the impression that he would take it out to sea because he was a fisherman and his house was close to the water. He described the sheet in which the body was wrapped as a dark blue bed sheet with a pattern of red or red and gold swirls, which, he said, was the same as that on a doona cover taken from the applicant's house. He wondered what to do with the body and eventually buried it naked in a hole that he dug in a chicken shed on an adjacent block of land. The body was fully clothed, in a foetal position and affected by rigor mortis, but the witness said he was able to remove the clothes without cutting them away. When exhumed, an unexplained piece of black plastic was found under one arm. In examination in chief he estimated that it took half the night to dig the hole; in cross-examination he said a couple of hours. He also said that he mixed some concrete in a drum to cover the hole. He then burned the clothing and the sheet in an open incinerator or barbecue, which was still alight when a police officer called the next morning, by arrangement, to take him into custody, briefly, in connexion with unrelated matters. He said that he both buried, and attempted to burn, the jewellery. It has not been recovered despite a search.

97. There was a further conversation with the applicant that day when she came out to his house and brought some more amphetamine. They discussed payment for his disposing of the body. The applicant said she would pay him as soon as possible. (He claimed that Welsh came to see him that evening and paid him $1,000 in $20 notes. Welsh, unlike the applicant, gave evidence at the trial. He said that Engels was lying.) There was also some talk about how the deceased struggled and how long it had taken to drown her. Engels was offered Miss Piatkov's car but said that he did not want it.

100. In addition to its lack of detail, a variety of other criticisms was made of Engels's evidence. He had known the applicant for only about six to eight months, having first met her at a hotel to buy amphetamine. There had been about eight subsequent meetings, all of them to obtain amphetamine and usually very short, before the conversation in which, out of the blue, she allegedly asked him to kill Miss Piatkov. The body was then delivered to his house without prior arrangement and he disposed of it, knowing that a policeman was to call at the house the next morning. It was submitted that such an account was inherently unlikely.

103. A woman called Fiona Di Giacomo and her boyfriend, Adam Elsworthy, were living in Engels's house at the time. She said that Engels was their employer. Mr. Elsworthy died before the trial but Miss Di Giacomo gave evidence. She said nothing about a visit by the applicant and her two companions and denied that there was an occasion when Engels came in from outside the house and shared amphetamine with her. (He said that he had done so on the evening in question.) But she agreed in cross-examination that she was scared of Engels and did not want to inquire what he was doing. The police officer who attended the next morning said that he did not notice a fire. Engels had said not only that it was still burning but also that there was "quite a bit" of smoke. He claimed that the policeman had commented on it, saying, "You're burning off some rubbish?", to which he replied, "Yes."

106. Mr. Kent also submitted that the circumstances in which Engels went to the police in May 1995 were suspicious. He was aware that there was talk about his possible involvement in Miss Piatkov's disappearance 13 months earlier. Engels was asked the following questions and gave the following answers in cross-examination:

"You know that the police are making inquiries into the disappearance of Tania Piatkov. All right?---Yes.

And then you, before the police have come to speak to you about Tania Piatkov, ring up [Detective Sergeant] Chambers. Correct?---Yes.

And at the time you ring up Mr Chambers, you are aware that if that body is found there, the police may well suspect that you killed Tania Piatkov. Correct?---Yes, I thought it possible they might.

And then, you - before you mentioned what it was that you wanted to talk about to Mr Chambers, you asked him about witness protection. Correct?---Yes.

And you asked him about exemptions from prosecution, didn't you?---I asked him about what happens.

And he told you that, to some extent, your position would depend upon what role you played in the matter that you were going to tell about, if you decided to tell. Correct?---Yes.

Yes, well, now that - therefore it was obvious to you that if you said to him, look, let me tell you this, I killed a person and I buried them at my place, that he would not do anything to assist you. Correct? You knew that, didn't you?---Yes, I guess so."

It was put to him that he well knew that it was important for him to distance himself from being involved in the killing. He said that he did not believe that that was so and denied that he had done a deal with the police, undertaking to give evidence against the applicant in the expectation of a lighter sentence and receiving assistance from them when he needed to move to other accommodation because he was in arrears with the rent. We also know, as the jury did not, that he had assisted the police to obtain evidence against the applicant which the judge ruled inadmissible.

117. Cornwell, the other witness to whom ground 1 relates, said that her sister told her before the trip to Queensland that she wanted Miss Piatkov to move out but the deceased became violent if that was suggested. She also testified that the applicant had admitted her involvement in the killing. She said that she was staying with her sister and the deceased was no longer living with her. The witness said that she was afraid that Miss Piatkov might return but the applicant eventually told her that Miss Piatkov was dead and that a man called Ed Smith had drowned her in the applicant's bath. The music had been turned up loud but she could be heard calling out for help. The deceased's bowels had opened and the smell was horrible. The deceased "would never be found; she [was in] a beach area in a construction hole". That evidence was attacked chiefly on account of Cornwell's substance abuse, mental instability and alleged motive to lie. The motive was revenge for the part the applicant had played in custody proceedings concerning Cornwell's children. She had been discharged from Footscray Psychiatric Hospital a week before she first spoke to the police about this case, which was well after the committal proceedings. She had later been admitted to a psychiatric hospital in Hobart suffering from paranoia and there were subsequent medical consultations.

120. Both witnesses had numerous court appearances and previous convictions.

123. The foregoing summary does not cover all the points Mr. Kent made in his closing address below or every detail of his written and oral argument in this Court, but it explains the basis on which counsel submitted that the Crown case was not of such quality as to satisfy the criminal standard of proof. Engels and Cornwell were the principal Crown witnesses. In my opinion, however, it was open to the jury to be satisfied beyond reasonable doubt that most of Engels's evidence was true. It will be recalled that the judge had told them that the criminal standard should be applied specifically to his evidence. Whether or not that was strictly in conformity with Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 and R. v. Kotzmann [1999] VSCA 27 is of no importance. It was, if I may respectfully say so, an eminently sensible and practical direction to give in the circumstances of this case. There is no reason to think that the jury did not heed the warnings they had been given. The essential points in Engels's evidence are not so inherently improbable as counsel contended. Accordingly I would not uphold ground 1.

128. The sole ground of appeal against sentence is manifest excess. Mr. Kent submitted that the judge had given insufficient weight to what was said to be the violent environment in which the offence was committed. A similar submission was referred to by his Honour in the course of his careful sentencing remarks and given such weight as it deserved. In my opinion the sentence imposed was so clearly within the range that there is nothing more to be said.

131. For these reasons I would dismiss the applications.

136. In my opinion the applications should be dismissed for the reasons stated by Callaway, J.A.