[1961] HCA 74
Ewan v R [2020] NSWCCA 85
R v Dileski (2002) 132 A Crim R 408
Source
Original judgment source is linked above.
Catchwords
[1961] HCA 74
Ewan v R [2020] NSWCCA 85
R v Dileski (2002) 132 A Crim R 408
Judgment (9 paragraphs)
[1]
Judgment
HIS HONOUR: In advance of the Crown closing its case, the parties require adjudication on some evidentiary issues. These are dealt with in the reasons that follow in no particular order of significance.
[2]
Application to recall Jasmine Speering
Ms Speering gave evidence on the third and fourth days of this trial. Ms Speering had for some months lived at 17 Ronald Street, Tenambit and was present on the day when Mr Carroll died. She was inside the house, including the living room, when the incident that caused his death occurred. Ms Speering is also seen in CCTV footage of the events that followed in the front and rear garden areas of the property when Mr Carroll can be seen to stagger outside from the front door clutching his chest and to collapse on the lawn.
Part of the Crown case against Ms McDonald includes an allegation that she moved the knife that is said to have been used to kill Mr Carroll. For reasons that it is unnecessary presently to consider, that knife has never been identified. However, the Crown maintains that it is one of the several knives that were later discovered in the dishwasher and that Ms McDonald is the person who put it there. A concurrent allegation that would appear to have been live at the commencement of the trial, that Ms McDonald put the knife in the dishwasher knowing that Mr Carroll had been murdered by Ms Hickson, is no longer pursued for the reason that there is no evidence that she did so at any time following his death.
Ms Speering was cross-examined by Mr Rosser to suggest that it was she who placed the knife in the dishwasher. I directed that she answer questions that raised that issue and Ms Speering did so with the benefit of a certificate that I issued pursuant to s 128 of the Evidence Act 1995. Ms Speering denied that she put the knife in the dishwasher in any event.
Mr Rosser has now applied to have Ms Speering recalled to be cross-examined by him further in the following circumstances. By a Court Attendance Notice originally listed before the Taree Local Court on 9 November 2022, Ms Speering is charged with the offence of perverting the course of justice. The CAN alleges that sometime on the morning of 31 August 2022 at Taree, she provided a false statement and influenced a witness to provide a false statement to police, intending thereby to pervert the course of justice. The subject matter of Ms Speering's statement related to whether or not her then current partner had breached his bail conditions by associating with her contrary to a condition that he not approach or communicate with her by any means. Ms Speering's statement to the police is alleged to have been untruthful, based upon what the police maintain they saw during surveillance of premises occupied by Ms Speering's partner, that contradicted the version that she provided.
Mr Rosser maintains that he wishes to put to Ms Speering that she lied to the police, as they allege, by giving a false version of events and that her answers may assist him to establish that Ms Speering is a witness whose credibility is therefore in doubt. A number of matters should be noted in that context.
First, Ms Speering is yet to enter a plea to her charges. It is in my experience unlikely in the extreme that she would agree with the proposition that she has committed the offence of pervert the course of justice in response to any suggestion from Mr Rosser that she did so. Her likely anticipated denial would therefore be of no assistance to Mr Rosser unless her denials could be shown in some fashion to be false.
Secondly, although it seems highly unlikely having regard to the expectation that Ms Speering would in the first instance agree to answer the questions and simply deny that she has committed the offence with which she has been charged, Ms Speering may refuse to answer the questions directed to this issue upon the basis that her answers may have a tendency to incriminate her. That would then potentially raise the issue of whether or not she ought to be required to answer the questions with the protection of a certificate pursuant to s 128 of the Evidence Act 1995.
Section 128(4) of the Evidence Act is in these terms:
(4) The court may require the witness to give the evidence if the court is satisfied that--
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and
(b) the interests of justice require that the witness give the evidence.
It seems highly likely, if indeed almost certain, that nothing that Mr Rosser would ask Ms Speering would elicit an answer tending to prove that she has committed an offence against or arising under a law of a foreign country. That being so, the focus must then become whether it is in the interests of justice to require her to give the evidence.
Against what I have characterised as the unlikely event that Ms Speering would refuse to answer the questions, it does not seem to me to be in the interests of justice to require her to answer the questions. I am of that view because Ms Speering is currently being prosecuted for the very matter that Mr Rosser wishes to expose by his questions. This is not, as in my experience is most often the case, a situation where a witness is refusing to answer questions against the theoretical possibility that the answers may reveal something that up until that time had not been known. In the present case, the fact that Ms Speering currently faces a prosecution for the matters that Mr Rosser wishes to examine incline me to the view that it is not in the interests of justice to require her to answer his questions.
The interests of justice is not, however, a one sided concept. It includes Ms McDonald's position and an evaluation of whether denying her the opportunity to test Ms Speering on the truthfulness of what she told the police, which answers form the basis of her charges, simultaneously denies her the opportunity to expose Ms Speering as a person who cannot be believed. However, having regard to what I consider to be the absence of any real prospect that Ms Speering would admit that she lied to the police about whether or in what circumstances she was contacted by her partner in breach of his bail conditions, the putative loss of that opportunity is effectively an illusion.
Finally, I recognise that there may be some forensic advantage to Ms McDonald arising simply from the fact that if Ms Speering were recalled and questioned, whether or not she objected to answering the questions in the first place or what in either case her answers might reveal in the second place, the jury would see her exposed to the suggestion that she had lied and had thereby committed a criminal offence, whatever her answers might be. It is sufficient to note that in my view, that is not an advantage the loss of which ought legitimately to inform the assessment of whether it is in the interests of justice to recall Ms Speering.
In my opinion, that application to recall Ms Speering should be refused.
[3]
Crown's application to tender Ms McDonald's statement and Ms McDonald's application for a directed verdict on Count 2
For reasons that will become apparent, it is convenient to deal with these separate applications together. They arise in the context of a consideration of what material may properly go to the jury as evidence of the actus reus of each of the offences alleged in Counts 2 and 3 of the indictment. It is Mr Rosser's fundamental submission that the only material capable of going to the jury to establish a relevant actus with respect to each offence is evidence capable of establishing that Ms McDonald moved a knife which inflicted Mr Carroll's wounds, placed it in a dishwasher and turned it on.
Mr Rosser uncontroversially concedes that such acts are of their very nature readily capable of constituting relevant assistance with respect to Count 2 or relevant hindrance with respect to Count 3. Mr Rosser also accepts that such acts readily support an appropriate inference of the relevant mens rea for each offence. However, it will be apparent that, having regard to the way in which the evidence concerning the alleged material said to inform the relevant actus reus for Count 2 has fallen out so far, confining the evidence in the way for which Mr Rosser contends would have the inevitable consequence that a verdict of acquittal should be directed on that count because even if Ms McDonald moved a knife which inflicted Mr Carroll's wounds, placed it in a dishwasher and turned it on, those acts must necessarily have been committed prior to Ms McDonald having become aware of Mr Carroll's death. The issue of whether or not Count 2 remains viable is therefore coextensive with the Crown's application to tender Ms McDonald's statement which is on the Crown case said to contain lies by her amounting to admissions that are not concerned with moving a knife or placing it in the dishwasher. I note for completeness at this stage that those admissions are not critical to the Crown's case on Count 3 which is not similarly dependent upon the time when Ms McDonald is alleged to have moved the knife or placed it in the dishwasher.
In these circumstances, because Ms McDonald cannot be shown on the evidence to have moved a knife or put it in the dishwasher before Mr Carroll died as the Crown alleges, the Crown relies upon her statement made on the evening of 16 January 2021 as constituting the actus reus of Count 2. In this respect, the Crown case as opened to the jury was relevantly as follows:
"Taylah McDonald picked up the knife that had been used and put it through a - put it in the dishwasher which was - and put it through a cycle in the dishwasher…Then later after she knew Michael Carroll had died, the Crown case is that Ms McDonald signed a police statement that made no mention of her having moved and washed the knife or as to having seen a knife in anyone's hand at the time of the incident."
Mr Rosser contended that that formulation of the Crown's case on Count 2 cannot be upheld. The contents of Ms McDonald's statement are necessarily determined by the questions she was asked. A suggestion that because Ms McDonald made "no mention" of a subject illegitimately imports the notion that she was under some duty or obligation to volunteer information and that her failure to do so amounts to active assistance to the alleged principal, Ms Hickson. Mr Rosser submitted that such a formulation of the Crown's case cannot be upheld.
In Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74 at [3], Dixon CJ stated the law with respect to the offence of accessory after the fact:
"To be an accessory after the fact it was necessary that he should know that a felony had been committed and subsequently should relieve, comfort or aid a party who had taken part as a principal in committing the felony so that the latter might elude justice. Aiding in the concealment or disposal of goods that a principal offender had stolen might be enough. What is done must tend against his being brought to justice, but active assistance is necessary." (Emphasis added)
In the present case, it is only assistance that the Crown can prove Ms McDonald provided that helps Ms Hickson evade justice which is embraced by the offence charged as Count 2: see R v Dileski (2002) 132 A Crim R 408; [2002] NSWCCA 345 at [8]. A failure to provide assistance to the police is insufficient to amount to conduct constituting that offence. Telling lies to the police deliberately to cover up a crime or the identity of an offender may, however, constitute the actus reus of the offence: R v Stanford (Marcus) [2016] NSWSC 1174.
Perhaps in anticipation of the difficulties to which Mr Rosser has drawn attention, as supported by these authorities, the Crown formulated its case on Count 2 in an alternative way, as the following extract from the opening suggests:
"The Crown therefore accepted in this case, simply moving the knife and placing it in the dishwasher, if you do find established beyond reasonable doubt that that's what Ms McDonald did, that will not be sufficient to find Ms McDonald guilty on count 2 and the reason for that is because at the time the knife was moved, Mr Carroll was likely not yet - had not yet died.
So accordingly, the Crown will have to establish an act on Ms McDonald's part at a point after Mr Carroll had died and a point where she was aware when he had died. What the Crown relies on in this case is the actual content of a statement Ms McDonald made to the police later in the evening of 16 January 2021. The Crown say you will need to view that police statement in the context of everything that leads up to and happens before it, but it's ultimately the words contained in the statement that the Crown will rely on.
The Crown case is that Ms McDonald deliberately misled the police about what had happened involving the knife when she made that police statement and the Crown further says at the time that Ms McDonald made that police statement, she knew full well that she had placed the knife in the dishwasher and she also knew full well that she had been actively misleading the police about the knife from the moment that she first spoke on the triple-0 call.
It will be the Crown case that Ms McDonald misled the triple-0 emergency services operator initially about what had happened in a recorded phone call. She then provided various different and at times conflicting accounts to police as recorded on body worn video. And against that backdrop, Ms McDonald attended the police station and signed a police statement and there's three particular lines in that police statement that the Crown will rely on and I'll just read those briefly to you.
So the first of those statements is, and my learned friends have access to the statements, so it's at the bottom of paragraph 15, where there's a sentence that reads,
'I never saw a knife or a sharp object in either Maddi's or Mick's hands when this happened'.
And then the second statement says,
'I followed them into the front yard. I still didn't know what happened or why Mick was bleeding so… badly'.
And then the third of the statements is at paragraph 21 and it reads,
'I stood back trying to comfort Jasmine as she was really upset. The police then started questioning us, asking what had gone on. I told the police that Maddi and her dad had a fight and I though at that stage he had stabbed himself'."
The Crown has since indicated that reliance is no longer placed on the extract from paragraph 21 as a particular of Count 2.
It is not controversial that in order to constitute the actus reus of Count 2, the Crown must establish that one or more of these statements was deliberately untrue, had the capacity or the potential to assist Ms Hickson and were made with the relevant intention. Mr Rosser submitted that there is no evidence that is capable of establishing that any of these statements is deliberately untrue. Even accepting for the purposes of the argument that Ms McDonald moved the knife as alleged, that does not, on Mr Rosser's analysis, disprove the truth of any of these statements. In other words, there is no inconsistency between the proposition that Ms McDonald may have moved the knife and the proposition that the three statements are literally true.
However, in aid of the contention that there is in fact evidence from which at least an inference can be drawn that the statements referred to are, or at least one of them is, deliberately untrue, the Crown referred to and relied upon a series of allegedly inconsistent representations made by Ms McDonald to attending police at 17 Ronald Street, Tenambit on 16 January 2021. The Crown's summary of Ms McDonald's various accounts about the knife at the scene, and how the injuries were caused to Mr Carroll is as follows.
[4]
000 Emergency Call Account - EXHIBIT E (File 2) and EXHIBIT N
Ms McDonald's first account about the knife occurred during the initial stages of the 000 call. In that call, she started by telling the 000 operator, "There is no, attacker, it was a fumble and he, I think he may have stabbed himself". When pressed on this version with the direct question, "So he has stabbed himself?", Ms McDonald responded "Yes". Ms McDonald was again asked, "What happened?", and she responded, "He, he stabbed himself, he didn't mean to, he was in a…". Ms McDonald was then directly asked, "So, was anybody fighting with him?", to which she responded, "No. Only it was just him."
Following the above exchange, the 000 operator asked Ms McDonald about something Ms Speering had initially said: "So no, there were no fights, 'cause you said there was a domestic?" After some noticeable pauses, Ms McDonald eventually said, "He done it to himself, he tried, yeah, he tried to attack his daughter and he had a knife in his hand, and yeah…". She later added to this account saying, "… she didn't stab him…". When asked if he still had a weapon, Ms McDonald responded, "No. No, …". When asked if he cut himself, Ms McDonald responded, "Yes. Yes. He stabbed himself - he's dying."
[5]
Senior Constable King body worn video - EXHIBIT G and EXHIBIT O
During Ms McDonald's initial description to Senior Constable King, Ms McDonald said, "they started pushing each other, I sort of got in between them and… pushed them back… all of a sudden there was a splat of blood on the ground … but I'm sure, uh, he dropped the knife."
Later, on Senior Constable King's body worn video footage, Ms McDonald was asked, "Do you know where he stabbed himself?" Ms McDonald's response was, "I don't even know where he, what it was with."
Towards the end of Senior Constable King's body worn video footage (first file), Ms McDonald was asked, "Do we know where the knife is? … Or do we know what was used?" Ms McDonald responded, "I don't even know if it was a knife. … I didn't know...".
[6]
Senior Constable Prince's body worn video - EXHIBIT Q
At the time of Ms Hickson's arrest, a further account was provided by Ms McDonald. That account included her telling the police:
Maddison Hickson did not have anything in her hands, because "she would have got me with it if she did".
When Ms McDonald was asked if she knew how Mr Carroll got the injuries, "Is there a weapon or anything like that, a knife?", Ms McDonald responded "Don't know. I don't know".
Later, Ms McDonald was asked, "Did he have anything in his hands…?" Ms McDonald responded, "…it's happened in my lounge room, it's dark, because we were watching TV and… you can't really see".
Ms McDonald's final version about the knife at the scene occurred after she was asked, "…did he have anything in his hands out the front, have you, any you guys removed anything from out the front or…". Ms McDonald's response was, "No, but… that's where I guess that it, he would have gone out the front with it if he had it." Ms McDonald was then asked, "Ok. So he hasn't you haven't noticed anything on the floor in there?" Ms McDonald's response was, "Nuh. But then, like, again, mine would be just, my concern was with Maddie and just staying out …".
[7]
Anticipated evidence of Detective Lauren Park
During the cross-examination of Ms Speering, evidence was adduced of a conversation that occurred on 19 January 2021 between Detective Park and Ms McDonald at transcript between page 187 line 38 and page 188 line 3. The Crown has indicated that it does not intend to lead that conversation, given it was not audio or video recorded. However, now that it has been raised in cross-examination, the Crown has indicated that it intends to confirm with Detective Park that the conversation occurred, and occurred in the terms put to Ms Speering.
During that conversation on 19 January 2021, Ms McDonald made the following statements: "What knife, I don't know about any knife. I didn't move any knife" and "I don't know what you're talking about. I didn't see what happened, I don't know anything about a knife." In the event the jury were to accept Ms McDonald moved the knife, the Crown submission will be that the jury can use the ongoing denial by Ms McDonald, to the police, of any knowledge about the knife, to demonstrate her continuing state of mind.
The Crown submitted that Ms McDonald's various accounts about the knife and how Mr Carroll's injuries were caused are inconsistent and inconsistent even to the point where at least one version is demonstrably false. Ms McDonald's conduct is also capable of supporting an inference that she sought to hinder police from a very early point: the first time the front door of the house is closed and locked is after Ms McDonald had re-entered it and left again very soon after the police arrived. On all previous occasions, the front door had remained open as people came and went.
The Crown provided the following written submissions in elaboration of its contentions that there is evidence in the trial from which the jury could infer that the two statements at paragraphs 15 and 16 of Ms McDonald's 16 January 2021 statement are lies.
First, the statement at paragraph 15 is directly contradicted by Ms McDonald's initial account to the 000 operator which included "he had a knife in his hand" and is also contradicted by her statement on Senior Constable King's body worn video that "I'm sure he, uh, dropped the knife". Her initial statements are therefore capable of supporting an inference that Ms McDonald had seen a knife in someone's hand, contrary to what she asserted in her police statement.
Secondly, if Ms Salter's evidence that Ms McDonald told her she had moved the knife and put it in the dishwasher is accepted by the jury, then Ms McDonald must have moved the knife within three minutes of Mr Carroll being injured. Accordingly, Ms McDonald must also have already moved the knife by the time she was speaking to the 000 operator. The fact that Ms McDonald had both moved the knife and commenced providing a false account to a 000 operator within three minutes of the incident occurring is evidence from which the jury could safely infer that Ms McDonald did see what happened and then decided almost immediately to interfere with evidence and provide false information. The only logical reason for her to do so must have been to protect Maddison Hickson.
Thirdly, the various different versions Ms McDonald went on to provide to the 000 operator and the attending police are also capable of being used by the jury to infer that Ms McDonald knew what had happened from when the incident first occurred. The reason the jury can infer Ms McDonald knew what happened, and must therefore have known this from her own observations, is because neither Ms Hickson nor Mr Carroll had any opportunity to tell Ms McDonald what had occurred. Ms Hickson fled the scene within seconds of the injuries being inflicted. Mr Carroll walked outside four seconds after Ms Hickson, and Ms McDonald was never close enough to him to gain an account from him until the point a 000 call would have recorded such an account and no such account is recorded.
Fourthly, Ms McDonald's conduct at the scene can be used by the jury to infer that her state of mind was almost immediately to set about covering up for Ms Hickson and that this state of mind continued throughout her police statement and was still continuing on 19 January 2021 when Detective Park spoke to her again.
The Crown therefore maintain that there is evidence in the trial from which the jury could conclude that Ms McDonald deliberately lied in her police statement on 16 January 2021, that she told the lies to assist Ms Hickson, and that at the time she told the lies she knew all the essential elements of the offence of murder and manslaughter.
[8]
Discernment
Mr Rosser accepts that deliberately telling lies with the requisite intent is capable of constituting the actus reus of the offence of accessory after the fact. See, for example, Ewan v R [2020] NSWCCA 85 at [31] and R v Stanford (Marcus) [2016] NSWSC 1174 at [3].
However, in my opinion, the difficulty with the Crown's contentions is that it does not follow simply because Ms McDonald may have given other versions at the scene to the police or to the 000 operator before that of what she saw or did not see, that what she said in paragraphs 15 and 16 of her statement to the police is for that reason false. It is an essential part of the Crown case that it is able to establish to the jury's satisfaction beyond reasonable doubt that the material in those paragraphs is false and that Ms McDonald deliberately made the statements knowing that they were false. However, the material by reference to which the Crown relies to establish that fact is itself uncertain. In short, Ms McDonald has proffered so many competing versions of what she observed that it would not be possible for a jury to conclude that the versions in the statement were lies without resorting to speculation. Such an approach would be impermissible.
Simply put, it is not possible for the jury to be satisfied to the criminal standard that the statement "I never saw a knife or a sharp object in either Maddi's or Mick's hands when this happened" is not true. The same must be said for Ms McDonald's statement "I still don't know what happened or why Mick was bleeding so badly." This is more particularly so when regard is had to the fact that some of the statements made at the scene, by reference to which the Crown maintains Ms McDonald's 16 January 2021 statements can be shown to be lies, in fact accord with her statement. Ms McDonald's conversation that is recorded on Senior Constable Prince's body worn video is a clear example of this.
Perhaps more significantly, Mr Rosser submitted that to establish an actus, the Crown must prove not only that one or more of the statements in paragraphs 15 and 16 was deliberately untrue but that they also had the capacity to assist Ms Hickson. Even if what Ms McDonald has stated were lies, they cannot be shown to have any such capacity or potential at the time they were uttered. Mr Rosser contended as follows:
"Now, 'I did not see a knife in anyone's hand': The only way that that can be said to have the potential to assist Ms Hickson is if the assumption is made that she had a knife in her hand. That's not an assumption that's available to the Court. If your Honour is of the view that those statements were untrue, the untruth has to be a matter capable of assisting Ms Hickson at the time they were made. Now, at the time that they were made, Ms Hickson was in custody and charged with murder. Those statements had no capacity to assist.
…
… it's not simply necessary that you told a lie. It's got to be a lie that's got a particular character. Our submission is, that for a couple of reasons - firstly, because she was in custody, there was never any attempt on the part of the accused - my client - to have written Madison Hickson out of the story. All of her versions, taken together, involved what she described as a kerfuffle between Madison Hickson and her father.
So, if these lies are to be capable of, accepting for argument's sake that they are lies, if they are to be capable of assisting her, just seriously how? How did those lies assist her at those time? With respect to, "I didn't see a knife in anyone's hand". You have to say that had the capacity to assist Ms Hickson. You have to make the assumption Ms Hickson had the knife in her hand, and there's no basis upon which that assumption can be made. In fact, to the extent that the accused McDonald had made earlier statements, they were capable of suggesting that he, the deceased, has a knife in his hand.
The other problem, your Honour, is that neither of those statements…has [such] a capacity.
…
I suspect the Crown's real complaint is that she did not confess to having moved the knife. Now, if she had confessed to moving the knife in that statement, that doesn't assist. Her acts of assistance to Hickson were moving the knife and perhaps telling the lies about it, and that's all done. Nothing she said in that statement had any capacity further to assist Hickson. It's on that basis that we submit the only acts she can be shown to have done - the only relevant acts she can be shown to have said or done with the capacity to assist Hickson, were done at a time prior to Mr Carroll's death."
Without this material in paragraphs 15 and 16 of her 16 January 2021 statement, there is nothing in the Crown case that supports the proposition that Ms McDonald did anything capable of amounting to the actus reus of the accessory after the fact count at a time when she was aware that Mr Carroll had died. I understand that it not my task in an application such as this to usurp the role of the jury in order to obviate the possibility that an unreasonable verdict may be returned. However, in this case, as Mr Rosser has made clear, a statement by Ms McDonald that she did not see a sharp object or a knife in either person's hand is not the same as a statement positively asserting, favourably to Ms Hickson, that Ms Hickson was not holding anything at all. The latter may possibly be taken to advance Ms Hickson's ability to evade justice but the former does not.
There is in these circumstances no case capable of going to the jury on Count 2. It follows that I will direct the jury at an appropriate time to return a verdict of not guilty on that count. It also follows that the tender of Ms McDonald's statement should be rejected.
[9]
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Decision last updated: 07 November 2022