Court of Appeal (Qld)|2000-10-03|Before: McPherson and Thomas JJA, Muir J, Separate reasons for judgment of each, member of the Court, each concurring as to the orders made
McPherson and Thomas JJA, Muir J, Separate reasons for judgment of each, member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
IMPROPER
ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –IMPROPERADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLESCRIMINALLAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL ANDNEW TRIAL – PARTICULAR GROUNDS –MISDIRECTION AND NON-DIRECTION– GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS - whether jurysufficiently instructedon the particular acts of the appellant said to supportconviction pursuant to s7(1)(b) and 7(1)(c) of the Criminal Code –where Crown unable to specify the particular acts of the two appellants said toconstitute liability pursuant to s7CRIMINAL LAW – EVIDENCE – CORROBORATION – WARNING REQUIRED ORADVISABLE – ACCOMPLICES – GENERALLY -whether error in failing todirect jury to exercise caution in using evidence of co-accusedCRIMINAL LAW – EVIDENCE – IMPEACHMENT OF CREDIT AND ADMISSIBILITY OFEVIDENCE AS TO CREDIT – EVIDENCE IN CONTRADICTION
– whether trial
judge erred in refusing to admit evidence disproving co-accused’s denial
of having asked for indemnity
when giving a statement to police – whether
evidence fell within bias exception to the finality rule – whether error
in refusing to allow cross-examination by reference to sealed s13A material of
witness who had denied having acted as a police informant
– evidence
offending finality rule and/or hearsay rule
Criminal Code (Qld), s 7(1)(b), s 7(1)(c)
Lowrie & Ross [1999] QCA 305
(1999) 106 A Crim R 565, referred to
R v
Mogg [2000] QCA 244, CA No 317 of 1999, 20 June 2000, cited
Jeffrey CA 154 of 1997, 19 December 1997, referred to
Webb v
The Queen [1994] HCA 30
(1994) 181 CLR 41, referred to
Robinson v The Queen
[1991] HCA 38
(1991) 180 CLR 531, referred to
Longman v The Queen [1989] HCA 60
(1988) 168 CLR 79, cited
R v LSS
[1998] QCA 303, CA No 128 of 1998, 2 October 1998, considered
Palmer v The Queen [1998] HCA 2
(1998) 193 CLR 1, cited
R v Yousry (1914) 11 Cr App R 13, cited
D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1
[1978] AC
171, cited Smith (1996) 86 A Crim R 308, cited
Judgment (95 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL PERSONS - whether jury sufficiently instructed on the particular acts of the appellant said to support conviction pursuant to s7(1)(b) and 7(1)(c) of the Criminal Code - where Crown unable to specify the particular acts of the two appellants said to constitute liability pursuant to s7
[3]
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES - GENERALLY - whether error in failing to direct jury to exercise caution in using evidence of co-accused
[4]
CRIMINAL LAW - EVIDENCE - IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT - EVIDENCE IN CONTRADICTION - whether trial judge erred in refusing to admit evidence disproving co-accused's denial of having asked for indemnity when giving a statement to police - whether evidence fell within bias exception to the finality rule - whether error in refusing to allow cross-examination by reference to sealed s13A material of witness who had denied having acted as a police informant - evidence offending finality rule and/or hearsay rule
Director of Public Prosecutions (Queensland) for the respondent
[17]
[1] McPHERSON JA: I agree with the reasons of Thomas JA for dismissing these appeals against conviction.
[18]
[2] THOMAS JA: Upon a retrial the appellants were convicted by a jury of the murder of Grace Heathcote. Their appeal to this court against their original conviction is reported in [1999] QCA 305; (1999) 106 A Crim R 565. The evidence led by the Crown was substantially the same as that led upon the first trial, and the parties agree that the effect of that evidence is accurately stated in the above report at pages 566 to 569. Some passages from the judgment of McPherson JA in that case are repeated in the summary that follows.
[19]
[3] At the first trial neither applicant gave evidence. This time both appellants gave evidence, each blaming the other for the killing. The evidence reveals a degree of involvement on the part of each appellant in arrangements to lure Ms Heathcote to a motel room and to drug her so that money could be obtained from her. The evidence also suggests that some violence occurred between the three women in the room, but each appellant denied having inflicted violence of the kind which was proved to have killed Ms Heathcote. Each claimed to have been absent from the room at the time when it is to be inferred that the other woman must have inflicted these fatal injuries on Heathcote. Each claimed to have seen nothing that had caused Heathcote's death.
[20]
[4] There is no other possible cause of the death of Ms Heathcote than the acts of one or both of the appellants.
[21]
[5] It is desirable that the facts proved by the Crown case be again stated. Although these facts are substantially the same as those stated upon the first appeal, it is necessary now to focus more directly on the evidence actually given in court by the respective appellants than upon their statements to the police upon which attention was necessarily focused in the first trial when such statements were evidence only against, or in favour of, the individual making the statements in question and not against her co-accused. Insufficient protection of the appellants under this principle was largely instrumental in securing the present retrial for the appellants. Of course when each appellant gave evidence at trial her evidence became available for all purposes, including the incrimination of her co-accused.
[22]
[6] The victim, Grace Heathcote, also known as Jane, was found dead in a motel room in Cairns late on the night of 4 July 1995. At the trial, evidence of a forensic pathologist was to the effect that death had been caused by rupture of the heart and tearing of the liver, part of which was described as "pulped". This was consistent with the victim having been jumped or stamped on, but with unusual severity. There were some 14 or more rib fractures, as well as fractures of or beside the breast bone; the victim's Adam's apple and hyoid bone were broken, as were the nose and nasal bones; and there were extensive lacerations, bruising and abrasions on parts of the face, cheeks, chin, forehead, scalp, ears, neck and chest. The victim had before her death obviously been subjected to a severe beating by one or more assailants.
[23]
[7] Both Heathcote and Ross were prostitutes and were known to one another. Lowrie was interested in becoming a prostitute and was acquainted with Ross but not with Heathcote. Although Ross denied any ill-will towards Heathcote there was considerable evidence supporting the fact that she harboured a grudge against Heathcote arising at least in part from Heathcote's failure to pay a debt to Ross. It was arranged between the two appellants that Lowrie would make an appointment with Heathcote and lure the victim to the motel as part of a plan to obtain payment of the money owing. The plan was to supply the victim with champagne to drink, which had been laced with a drug that would put her to sleep or make her drowsy. While she was in that condition, her keys would be taken, and Ross would use them to enter the victim's home and steal her money or belongings to repay the debt. Lowrie booked the motel room, and made a telephone call to the victim resulting in Heathcote agreeing to give her a massage at the motel room. Heathcote arrived at the motel by about 8.00 pm.
[24]
[8] During that evening motel guests heard some loud thumping noises coming from one of the rooms. Medical evidence suggested the time of death to have been about 9.30 pm. At about 11.00 pm a friend of Heathcote's attempted, unsuccessfully, to call her on her mobile phone. He then attended at Heathcote's residence and found that her security door was unlocked. It may be inferred that the attack and the burglary of Heathcote's premises had been completed before this time. Her body was found in the motel later that night.
[25]
[9] Two days later the appellants travelled together to Mt Isa. On 8 July however the appellant Ross contacted police, and made allegations incriminating Lowrie as solely responsible for Heathcote's death. Her account was that she had been approached by Lowrie, who had made it known that she wished to obtain work in the sex industry; that Lowrie had told Ross that she had made contact with Heathcote and had arranged to meet with her; that she had dropped Lowrie off at this meeting and upon returning to collect her was informed by Lowrie that Heathcote had stabbed her in the hand and foot and that she, Lowrie, had retaliated; and that Lowrie had also said that when she had left the motel room, she thought Heathcote was pretending to be unconscious and that she was breathing.
[26]
[10] The police immediately interviewed Lowrie who initially denied any involvement at all in the killing. While initially admitting that she had made the motel room booking, she claimed she left the room before Heathcote arrived. However the following morning (9 July) she implicated Ross. She described Ross' apparent hostility towards Heathcote, of the plan to drug Heathcote and obtain money back from her, her attempt to drug Heathcote at the motel, her leaving the room and seeing Ross go into the room, her going back after Ross left the room, her finding blood on the walls and floor, and her finding Heathcote with "her face kicked in" and a black box in her mouth. She alleged that Ross had gloves on and that they had both attempted to clean up. It is unnecessary to present greater detail at this point, but it is relevant to note that from as early as 8 July 1995 Lowrie's version unequivocally implicates Ross as the person responsible for the death.
[27]
[11] The following additional evidence is relevant to the case against Ross.
[28]
[12] Ross' account, both to the police and at trial, may fairly be described as totally exculpatory of herself, and as conceding virtually nothing. She denied ill-will towards Heathcote. She denied being party to any plans to drug or steal from her. She did drive Lowrie to the motel knowing that Lowrie had an appointment with Heathcote, but she knew nothing of a mixture being put in a champagne bottle. She did notice that there was an opened bottle of champagne in the car while they travelled to the motel as she saw it spilling out in the bottom of the car but she did not question Lowrie about it. After dropping Lowrie at the motel she later telephoned her for the time when she should pick her up and was told that it would not be any more than an hour. She had phoned her again at 9.25 pm and had been told that she'd be ready in 10 or 15 minutes. When she drove to the motel, she saw Lowrie already coming across the road. Lowrie was hysterical saying "she's just stabbed me" and had something wrapped around her hand. Lowrie told her that an argument had started and that someone had hit someone with the chair and someone had hit someone else with the bottle. Ross had asked how Heathcote was and Lowrie had said that she was fine. They then went back to Lowrie's place. On the following day Lowrie, who was being "pretty pushy", persuaded her to come to Mt Isa with her and she went. She noticed that Lowrie was in possession of Heathcote's bag, ring and watch. On the way to Mt Isa Lowrie told her that she might as well tell the rest of the things that happened and proceeded to tell Ross "about the mobile battery being shoved in Jane's [Heathcote's] throat, the stomping on her", and her statements that "I hit her hard, I hit her very hard, slamming her face into the walls" and that she should have "torched the place" and she was glad she was dead. She described Lowrie as being very relaxed about it and laughing about "the way to commit the perfect murder". Ross said that she was absolutely horrified. There is however other evidence of the women being seen together after this time in an apparently friendly relationship. Ross explained her continuing association with Lowrie by claiming that she was frightened of Lowrie and found it difficult to escape from her.
[29]
[13] Without listing the evidence in detail it is enough to say that there was substantial evidence contradicting a number of Ross' self-serving denials. These included admissions to her boyfriend Stancombe and the evidence of Wyngaarden which will be mentioned shortly. There was also clear evidence of considerable association between Ross and Heathcote but none between Lowrie and Heathcote, and evidence enabling animosity to be inferred on Ross' part towards the deceased. Evidence on this latter point includes Ross admitting to Ms Everard that Heathcote had threatened to tell Ross' family and boyfriend that she was a prostitute, that Heathcote had made allegations against Ross to her employer in lingerie sales and that as a result Ross' employment was suspended, and that Ross had complained bitterly of this only days before the killing. She also had blamed Heathcote for a series of nuisance telephone calls and had told people that Heathcote owed her money.
[30]
[14] Kurt Stancombe was, at the relevant time, the boyfriend of the appellant Ross. Before the incident in question Ross told him that there was a history of bad feeling between herself and Heathcote, and that Heathcote owed her money. She had therefore devised a plan to book Heathcote's services, get her drunk and take her home. Stancombe said that on the evening of 4 July 1995 Ross arrived home at about 11.00 pm and told her that she had "gone around to Jane's (the deceased) and that Jane had gone crazy, broken a bottle and cut her (Lowrie) on the arm and foot. She (Lowrie) had hit her over the head and ran".
[31]
[15] Hendrick Wyngaarden, the son of the appellant Lowrie, was 13 years of age at the time. He gave evidence that at about 3.45 pm on 4 July 1995 he saw the appellant Ross doing things which might be thought to be consistent with the preparation of a cup of Valium syrup to be used in the drugging of Heathcote. He had seen Ross preparing some substance in a cup which she put in the microwave. He also said that some time later that night his mother and Ross had arrived home and that he had observed "well-soaked" bloodstains on Ross' chest and stomach area. He had also seen blood on a garment of his mother. Ross had showered and changed after the women returned.
[32]
[16] The accused Lowrie gave evidence that in June 1995 she had been in financial difficulties. Ross had assisted her in starting work as a prostitute. She became aware of ill feeling between Ross and Heathcote. Ross asked her to drug the deceased so that she, Ross, could take Heathcote's keys, go to her house, take money thought to be owed to Ross and then return the keys to Heathcote. Ross and Lowrie would then travel to Mt Isa to work as prostitutes. They had together purchased rubber gloves so that they would not leave fingerprints in Heathcote's premises. In execution of this plan, Lowrie said Ross was the organiser but she, Lowrie, was the one doing all the "dirty deeds". Consequently Lowrie made arrangements for Heathcote to attend upon her at the Cairns Motor Inn. Lowrie took with her a bottle of champagne and a Valium based syrup which Ross had prepared. Upon Heathcote's arrival Lowrie gave her a glass of champagne laced with this syrup. After a time she seemed drowsy. She received a telephone call from Ross and told her that Grace was sleepy.
[33]
[17] A little later Ross came into the room. To Heathcote's statement "What the fuck are you doing here?". Ross replied, "We've come to get the money you owe me." Apparently realising Lowrie's involvement, Heathcote picked up the champagne bottle and hit Lowrie on the head with it. Lowrie hit her back. A struggle ensued in which Heathcote jabbed Lowrie's hand with the broken champagne bottle. Ross and Heathcote then proceeded to have "a bit of a fight", mainly scuffling and grabbing, both speaking to each other "fairly colourfully". Lowrie then took a chair and "hit the pair of them" with it. She "swung it round and hit them and got out of that room". She "didn't do it to hurt either one of them" She then went and sat in the car. After remaining there for some time she returned to the room where she saw Heathcote on the floor with something in her mouth like a box or a TV control. Ross was sitting astride her, hitting her in the head. Lowrie yelled "What have you done?" Ross got up, but continued to swear at Heathcote, yelling "Where's the f...ing money?" Lowrie removed the object from Heathcote's mouth and noticed that Heathcote was making gasping noises. Ross told her to leave her alone, that she "deserved everything she got".
[34]
[18] Lowrie told Ross that she had spilt the Valium on the bed, and was then told to grab the sheets and throw them into the shower. A clean-up attempt followed during which Ross wore gloves but Lowrie did not. At that stage Lowrie thought that Ross and Heathcote had had a fight, and that the worst case scenario "would be that Grace would have a sore throat ... from the thing being in her mouth". She and Ross then drove to Heathcote's flat using Heathcote's keys to gain entry. They removed various items including money, lingerie and perfume. Ross asked Lowrie to gather up all Heathcote's mobile phones because she wanted to ruin her business and wanted to "destroy her". They then returned to Heathcote's house where Ross showered and changed clothes. They separated later that night. The appellants had considerable contact with one another on the following day, and then drove to Mt Isa together, departing on the second evening after the incident. Some days later when Ross contacted the police, Lowrie was interviewed and various statements to the police followed.
[35]
[19] Coralee Nowlan was an inmate of Brisbane Women's Correctional Centre at the time when the appellant Ross was in custody on remand. She gave evidence that Ross had discussed with her certain aspects of her case, including that she had been owed money by a "lady", that she had needed that money to avoid having her car repossessed, that she had arranged for that lady to be called to a motel, that she had a friend drug that lady, that she had then gone into the room to recover the money and that "things went a bit too far". Ross said that she had bashed the lady, including kicking, thumping, punching and jumping on the lady, that the lady had fallen unconscious and that she had tried to revive her but the lady had died. Nowlan further gave evidence that Ross had told her that she had "set her friend (Lowrie) up", that she had gone into the room with gloves on her hands whereas her friend had not, that her friend was a "docile person" who was "in the loony bin", that no-one would believe her friend and that all accounts would lead to her friend. Two other female prisoners, Toni Haylock and Vanessa Allen, were said to have been present during this conversation. Haylock gave evidence that on a number of occasions Ross had told her certain things regarding her case but that she could not recall whether others had been present. Haylock said that Ross had told her that the victim owed her money, that she and a friend had gone to get it, that an argument had started and things got a bit out of hand, that she had panicked and had taken a champagne bottle and gone to the car. Allen gave evidence that she had advised Ross not to discuss her case with anyone at the Correctional Centre and that Ross had never told her any details of her case.
[36]
[20] Ross was medically examined after she went to the police on 8 July 1995. She was found to have a bruise 3 centimetres by 3 centimetres over her left upper thigh on the front and slightly to the side. It was blue and considered to be less than five days old.
[37]
[21] Quite apart from Lowrie's damning evidence, there was sufficient evidence to satisfy a jury to the requisite standard that Ross had been party to the plan and had participated in hostilities inside the motel room. There is no submission on her behalf that the evidence was an insufficient or unsafe basis for her conviction. Indeed, counsel for each appellant accept the capacity of the evidence to convict both women. In Lowrie's appeal the only ground is alleged misdirection in the summing-up; and in Ross' appeal the only grounds are alleged error in refusing to allow certain evidence to be led.
[38]
[22] After her initial denial to the police of involvement Lowrie was interviewed by police on no fewer than five occasions between 8 July 1995 and 6 February 1996, and she provided a written statement (Ex 42) on 8 March 1996. These accounts and her evidence in court admit her involvement in the plan to drug and steal, and a certain degree of personal violence on her part towards Heathcote, but not of the kind that could account for the fatal injuries.
[39]
[23] There was some independent evidence of Lowrie's presence in the motel room in the form of stains of her type of blood on the carpet or floor, which might have come from the cuts to her hand and foot which, when medically examined, she was later found to have.
[40]
[24] There is also the evidence of Ross which, if entirely accepted, would make Lowrie solely responsible for the murder. In any event Ross' evidence tends to confirm Lowrie's presence at the scene, and her arrangements with Heathcote, although there is an abundance of other evidence of these matters including that of Lowrie herself.
[41]
[25] The original grounds were abandoned and her counsel, Mr Rafter, was granted leave to substitute the following grounds:-
[42]
(i) The learned trial judge failed to adequately direct the jury with respect to the possible bases for liability under s 7 Criminal Code;
[43]
(ii) The learned trial judge failed to direct the jury of the possible danger of convicting the appellant Lowrie upon the basis of the evidence given by the co-accused Ross.
[44]
[26] The learned trial judge directed the jury with respect to s 7(1) of the Criminal Code and inter alia distributed a copy of the relevant part of that section to the jury. The passages to which Mr Rafter now refers are the following:
[45]
"(a) But when you consider a person who enables the offence to be committed or aiding the offence to be committed, it must be proved beyond reasonable doubt by the prosecution that the accused person did in fact aid in the commission of the murder and at the time of so doing knew that the other person was intending to kill or to do grievous bodily harm. So to be guilty of the offence of murder, a person accused of aiding its commission or enabling its commission must have done so knowingly, knowing at the time of doing so that the other person was intending either to kill or to do grievous bodily harm.
[46]
(b) A person who unwittingly aids another in committing the offence will not be guilty of it. If a jury is not satisfied that there was that intention to kill or to do grievous bodily harm but death results from conduct which was joined in by the aider, the aider would be guilty of manslaughter only, so you understand the point I am making is that the aider or the enabler must know that the person who did the act intended to kill or to do grievous bodily harm. However, I should add that once a participant in an assault becomes aware that life-threatening force is being used by the other assailant, and that participant continues to assist in the assault, that participant is liable to be found guilty of murder if death results from the injuries inflicted by one of the participants.
(c) So you have a situation where there might be an intention only to be participant in an assault but then the assault goes on and escalates and gets out of hand and a person becomes aware that life-threatening force is being used. If that person continues to assist in the assault, that person may be liable for murder. It would be a matter about which you would have to be satisfied as to whether and at what point the participant became aware that life-threatening force was being used and whether there was any continuing assistance given by the person who I have described as the aider. So I hope by considering that section you follow those directions which I have just given you.
(d) The case against Ms Lowrie which the prosecution alleges is that she firstly acquiesced in a plan to drug Ms Heathcote and thereafter to rob her or to steal from her residence. In pursuant of that plan, the Crown alleges that Ms Lowrie booked into the room at the Cairns Motor Inn, rang Ms Heathcote to entice her to the room and, accompanied with Ms Ross, prepared a champagne concoction with which to drug her, administered the drink to Ms Heathcote, assaulted Ms Heathcote during which she, Ms Lowrie, herself received wounds which bled and left traces of her blood in the room, attempted to clean up the room to hide the fact that a spiked drink had been used, went to Ms Heathcote's residence and stole money and possessions. In the course of those activities, Grace Heathcote suffered fatal injuries.
(e) Ultimately, using your experience of life and human nature, you must determine for yourself what facts you accept, what conclusions you come to after considering those facts and then, once you have got to that stage, you ask yourself 'Am I satisfied beyond reasonable doubt that Ms Lowrie contributed significantly to the death of Ms Heathcote?' If you answer is 'yes' to that, then she has committed the offence of unlawful killing. If you conclude that when so contributing to the death she did so with the intention to kill or do grievous bodily harm of with the intention of aiding someone else committing that offence, then the offence is murder."
[47]
[27] The first objection taken by Mr Rafter is that his Honour did not state with sufficient precision the requirements of s 7(1)(b). The relevant part of that section for present purposes is the following:
[48]
"7. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
[49]
(a) every person who actually does the act or makes the omission which constitutes the offence;
[50]
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
[51]
(c) every person who aids another person in committing the offence..."
[52]
[28] The complaint is that the jury was not instructed on the particular acts of the appellant which would support a conviction by virtue of s 7(1)(b) or 7(1)(c). In particular it is said that in the first passage referred to in para [25] above there are references to "a person who enables the offence to be committed" and to "a person accused of ... enabling its commission". Such references, it was submitted, should have included all the preceding words of s 7(1)(b), namely "a person who does or omits to do any act for the purpose of".
[53]
[29] Sometimes it may be material to determine whether an offender "aids" another under s 7(1)(c) or "does or omits to do an act for the purpose of enabling or aiding another" under s 7(1)(b). Speaking technically, there are four combinations open under s 7(1)(b) when an "act or omission" is considered in relation to "enabling or aiding". But such distinctions are pointless in a case where the Crown cannot specify the particular acts or omissions of particular actors. The Crown case here was essentially as I described it in the earlier appeal -
[54]
"The case against each appellant under s 7 depends upon limiting the logical possibilities. If it is shown that Ross must have either killed the victim herself or given some degree of assistance to Lowrie when aware that Lowrie was intending to kill or do grievous bodily harm to the victim, Ross must be found guilty of murder. If the jury is satisfied that Ross must have done one or other of those two things it does not matter that the jury cannot say whether she was the committer or an aider. On either basis she is guilty of murder and it does not matter whether para (a), (b) or (c) of s 7(1) is involved ... Similar statements might be made in relation to Lowrie's case."[1]
[55]
It is also relevant to repeat what McPherson JA said in the first appeal -
[56]
"But, in any event, s 7(1) of the Code sets out to treat all offenders within its scope equally as having committed the offence and as being guilty of it; and, provided that the jury is properly instructed on the principles governing criminal responsibility, it is not essential, or perhaps desirable, that they be told under which particular paragraph of s 7(1) that responsibility arises."
[57]
"If, however, with the requisite state of mind or knowledge, either of them aided or assisted the other to murder the victim, then, for the reasons already given, each was criminally responsible under s 7(1)(b) or (c) for the murder, while the actual perpetrator (whoever she was) was guilty under s 7(1)(a)."[2]
[58]
It should be noted in passing that on these retrials it was made clear that no reliance was placed upon criminal responsibility for counselling and procuring (under s7(1)(d)) or for an offence committed in prosecution of a common purpose (under s 8). In my view there is no basis for thinking that it was necessary to spell out the whole of the preceding words of s 7(1)(b) on each occasion when a reference was made to enabling the offence to be committed or aiding the offence to be committed, or that the failure to do so amounts to a relevant error in this case.
[59]
[30] It was further submitted that the summing-up did not sufficiently identify the particular acts of the appellant that were relied upon.[3] Particular reference was made to the passage quoted in para [25](e) above. It was submitted that the question "Am I satisfied beyond reasonable doubt that Ms Lowrie contributed significantly to the death of Ms Heathcote?" should have been posed as "Am I satisfied beyond reasonable doubt that Ms Lowrie did an act or acts which constituted a substantial cause of the victim's death or which substantially contributed to it?". It is true that his Honour's question was elliptical in that specific reference was made to the actor rather than to the actor's acts. However in the context of this summing up it is not possible that the jury could have been distracted from consideration of the need for some act to have been done by an offender before she could be convicted under the provisions to which his Honour was referring. The present case was not amenable to specific findings on specific scenarios, and in my view the summing-up sufficiently exemplified the acts or type of acts which might properly satisfy the requirements of criminal liability under s 7. It also sufficiently identified the principles identified in Jeffrey[4] and in the original appeal in this matter.[5] It was expressly conceded for example that the direction in the extract in para [25](b) above correctly presented these principles.
[60]
[31] No error is revealed in the summing-up in any of the respects that have been raised.
[61]
[32] It was submitted that the learned trial judge ought to have directed the jury to exercise caution before utilising the evidence of Ross in determining the case against Lowrie. Reference was made to Webb v The Queen[6]. While it is recognised that such a direction may be desirable in particular circumstances there is no general rule that such a direction is necessary in cases where the evidence of one co-accused incriminates another. Indeed, the difficulty is recognised of guarding against the risk that such a direction may undermine the defence of the accused who gives such evidence.
[62]
[33] It is significant that no request was made at trial for any such direction. In the context of this trial, where the most obvious feature was that each accused was attempting to exculpate herself by inculpating her co-accused, the most that can be said of this submission is that it complains of failure to state the glaringly obvious. Such a direction would necessarily have called for a similar direction in relation to Lowrie's evidence. The question whether such directions should have been given was a matter which should have been raised, if raised at all, at trial, when submissions could have been received from all interested parties. Among other matters, adherence in favour of both appellants to the principles of Robinson v The Queen[7] would need to have been considered and one suspects that realisation of the mutuality of the situations and lack of ultimate advantage in relation to the other co-accused is probably why no such application was made by counsel. While each accused, independently of the question of guilt or otherwise of the offence charged, might properly be regarded as an accomplice of the other in some criminal activity at the relevant time, s 631 no longer requires a warning to be given in the case of accomplices, although of course there are still many situations in which it is highly desirable that particular warnings be given.[8] In the present case I do not think that the giving of such a direction as that now urged, or that the giving of a pair of such directions, would have fulfilled any useful purpose. Such directions were not necessary.
[63]
[34] In all the circumstances of this trial there was no error in the absence of a direction to use caution in relation to the evidence of Ross.
[64]
[35] Two grounds were raised in the notice of appeal, and, as argued, they may be stated as follows -
[65]
The learned trial judge erred in refusing to allow the appellant to call Detective Hogan to give evidence to the effect that at the time her co-accused Lowrie had provided a witness statement to him on 8 March 1996, she (Lowrie) had done so pursuant to a proposal that she would give evidence against the appellant in exchange for an indemnity in respect of the count of murder against herself;
[66]
The learned trial judge erred in refusing to allow the appellant's counsel to cross-examine the Crown witness Coralee Nowlan on the contents of a sealed envelope tendered in the District Court at the sentencing of Nowlan on 28 July 1995."
[67]
[36] The sequence of events after the appellants came into contact with the police (four days after Heathcote's death) has been mentioned earlier.[9] Counsel for Ross attempted to place considerable significance upon the giving of a statement by Lowrie on 8 March 1996, in which she implicated Ross as the person who must have been responsible for the fatal injuries. However counsel's submission that this statement was the first time Lowrie purported to have actually witnessed violence between Ross and the deceased is simply incorrect. It is true that the respective accounts given by Lowrie have varied in detail as to the extent of physical violence committed respectively by herself and by Ross, but the essential story of the plan, Lowrie's initial attempt to drug Heathcote, Ross' arrival, some physical hostilities, Lowrie's temporary departure, and her discovery of Heathcote in a seriously disabled condition with Ross still present when she returned, has in substance remained. While counsel properly referred to variations in detail, it seems to me that the essential version given by Lowrie was given to the police in the Cairns watchhouse in the early hours of 9 July 1995 and that many similar details were again given to police in Brisbane on 21 August 1995. A similar story in considerable detail was then recorded in an interview between Lowrie and the police at Cairns on 6 February 1996. The statement that was taken on 8 March 1996 in my view is essentially a repetition in a different form of what she had already alleged on a number of occasions.
[68]
[37] At trial Ross' counsel sought to call evidence from Detective Hogan of the discussions which he had with Lowrie in relation to her provision of the witness statement of 8 March 1996. This was apparently with a view to his saying that she had asked for an indemnity on the murder charge in exchange for providing such a statement. It was thought that Detective Hogan could give evidence that negotiations for an indemnity had gone on at that time, although obviously any such negotiations had come to nothing.
[69]
[38] Prior to Ross' case being opened, Lowrie had given evidence and had been cross-examined by Ross' counsel who had put to her his instructions about the statement of 8 March 1996 being prepared in the course of negotiations for an indemnity. She recalled that there had been such negotiations but said that they happened later. In due course Ross' counsel indicated his intention to call Detective Hogan to contradict that statement. Such evidence obviously concerns the credit of Lowrie. The question immediately arises whether this is a collateral issue as to which the original witness' statement should remain final. Counsel for Ross, on appeal, sought to identify such evidence as an exception to the general rule as to the finality of such answers. His principal argument was that it would help to demonstrate the existence of bias on the part of Lowrie against Ross.
[70]
[39] It may be noted that such an argument was not presented to the learned trial judge. Ross' counsel (different counsel from her counsel on appeal) was informed by his Honour that such evidence seemed to go simply to impugning the credit of Lowrie. His Honour asked how it was admissible. Counsel responded that as a general rule an answer to a question on credit is final and cannot be contradicted by other evidence but that that was "not an absolute or a clear cut rule and it would really depend on the importance of the issue". Counsel indicated his agreement with his Honour's characterisation of the evidence, upon which his Honour stated, "At this stage I can't allow you to call it if that's all that it's intended to do". That would clearly seem to have been only a provisional ruling, and counsel was free to renew the application if any proper basis could be shown for it. The matter was obviously not pressed.
[71]
[40] On appeal counsel for Ross has conceded that for this point to have any force, he must be able to point to something new that emerged in Lowrie's version in the statement of 8 March; otherwise his client had lost nothing, and it could not be said that Lowrie had made up a statement in exchange for a benefit or inducement. In my view this particular ground fails on this preliminary point. The whole issue was an artificial one raised in an understandable search for some basis upon which to attack Lowrie's credit. However it simply cannot fairly be said that at the relevant time she was manufacturing evidence against Ross in exchange for indemnity. If she had manufactured evidence she had done so much earlier, and for reasons far more direct and obvious than the hope of an indemnity, namely her own exculpation.
[72]
[41] Strictly speaking it is unnecessary to deal with the difficult legal question as to the point at which the exception in favour of proof of bias comes into play when an accused person gives evidence against his or her co-accused. It has been held in this court in R v LSS[10] that in certain circumstances evidence of the coaching of a complainant is admissible as falling within the "bias" exception to the finality rule.[11] At the same time the importance of finality of a witness' answers on credit and the need to identify a recognised exception was acknowledged.
[73]
[42] In a case like this where the only possible offenders are the two accused, where each was present at the scene at a material time and where each gives evidence against the other to the effect "I wasn't there when it happened but she was" the interest of each witness in diverting responsibility to the other person is so patently obvious that the adduction of further evidence of interest would seem gratuitous and time-wasting. It is easy to conceive cases where it would be unfair to deprive an accused of being able to prove bias of a co-accused who chooses to give evidence against him or her as for example by showing a longstanding grudge or resentment. It is also perhaps easier to see the point of such an exercise when only one gives evidence against the other. But it is difficult to see what would be achieved by the reception of such evidence in the present circumstances.
[74]
[43] There is no single rationale to explain all occasions when subordinate or collateral facts may be properly in issue in a trial. Proof that a person is an accomplice, or indemnified, or that the circumstances surrounding an admission are such as to make it unreliable (eg duress or taken in a prison), or that earlier inconsistent statements have been made by the witness, or that the witness was paid money for making the statement all afford familiar examples of independent evidence being received on matters that mainly go to the creditworthiness of a witness. But such matters are true examples of subordinate or collateral facts that may properly be in issue. The reception of prior inconsistent statements may be explained under special rules developed on that subject, such rules now being largely statutory. Some of the above examples may be explained under the "bias" exception; others may be difficult to explain on any other basis than practice and the obvious injustice of excluding them. The "bias" exception is probably wider than the literal meaning of that word suggests. However I do not think it desirable to generalise in an area where so many factors may come into play according to the circumstances of the particular case. The rule against finality of answers on credit and the exceptions to it are not in doubt. Individual situations will no doubt be identified from case to case where it would be unjust to deprive an accused person of the right to lead evidence destructive of the credibility of another witness when the circumstances do not tidily fit within the recognised exceptions,[12] but I do not identify the present case as one of them.
[75]
[44] In the present case if the learned trial judge had precluded Ross from calling evidence that was capable of being given genuine weight on the issue of Lowrie's bias against her, an error would have occurred. However in the event the so-called issue concerning possible indemnity is no more than an immaterial distraction. It was appropriate that it was treated as a subject going to Lowrie's credit as to which Lowrie's answer was final.
[76]
[45] This ground concerns an attempt by Ross' counsel to discredit a Crown witness, Ms Nowlan[13]. She had been in custody for a time with Ross and gave evidence of admissions made to her by Ross. During cross-examination of Nowlan it was suggested to her that she was a police informer. In particular it was put to her that when she was sentenced for various offences in July 1995 it was taken into account in her favour that she had given information to police about crimes committed by other people. Nowlan rejected any suggestion that she had provided police with information about offences committed by anyone other than herself. Ross' counsel cross-examined her at some length about statements made on her behalf by her counsel during the sentencing procedure but she maintained the above position.
[77]
[46] Counsel for Ross then, in the absence of the jury, applied to the learned trial judge for "permission to cross-examine her on whatever is in the confidential exhibit". That was a reference to an envelope that had been presented to the learned sentencing judge during the sentencing procedure and which had been sealed. The precise basis on which it was tendered was not made clear to this court, but it would seem to have been received pursuant to a practice which has developed over the last two decades in relation to the provision of information to the sentencing judge which, if read in open court, would expose the offender to danger from other criminals. Commonly, though not always, such activity reveals that the offender has acted as a police informer. In limited respects such procedures have statutory recognition in provisions such as s 49 of the Drugs Misuse Act 1986 in relation to drug offences, and s 13A of the Penalties and Sentences Act which came into force in 1997. The learned trial judge, to whose attention the document had apparently been drawn during previous proceedings, noted that the document was not this witness' document. He also noted that it had had potential for harm. His Honour also adverted to the policy reasons which underpin the protection of such information.
[78]
[47] This once again raises the question of the propriety of adduction of evidence on the question of a witness' credit. It seems to have been assumed that it would go against Ms Nowlan's credit if it could be shown that she obtained an advantage from informing on somebody on a previous occasion. Such a matter could have no other relevance. Counsel was not restricted in any way from cross-examining Ms Nowlan about the statements made on her behalf and in her presence by her barrister in the earlier proceedings and she acknowledged that such statements were made on her instructions. The application was not limited to the recognised and strictly limited procedure of showing a document to a witness and then asking the witness whether she still adheres to her answers.[14] It was an application to cross-examine on whatever was in the confidential exhibit, and it would seem that the intention was to endeavour to get its contents before the jury by one means or another. In short it was an attempt to put in secondary evidence of the contents of the document and thereby impugn the credibility of the witness.
[79]
[48] It was not suggested that the facts that were hoped to be proved by reference to the documents went to anything other than the credit of the witness or that they fell within any of the recognised exceptions to the finality rule. In the first place the application should fail on the ground that it sought to adduce collateral evidence on a question of credit. In the second place it was an attempt to present hearsay evidence. Assuming that counsel's expectation that the document would show that Nowlan had informed on other persons was correct, it might be anticipated that had there been an attempt to present such evidence by calling the maker of the document, a question of public interest protection against the disclosure of identity of a police informer could have been raised on behalf of the maker of the document. Such protection is granted almost as a matter of course except when such disclosure can help to show that a defendant is innocent of the offence.[15] It is difficult to think that the evidence in question justifies the latter description, but it is not necessary to express any concluded view on this particular hypothetical situation. It is mentioned to illustrate the existence of another potential layer of difficulty confronting this application. In my view the application was entirely misconceived.
[80]
[49] Accordingly, no error is shown in relation to this ruling.
[81]
[50] None of the grounds relied on by either appellant have been substantiated. No other ground such as alleged inadequacy of the evidence or that the convictions are unsafe and unsatisfactory is raised. The appeals should be dismissed.
[82]
[51] MUIR J: I agree with the reasons of Thomas JA and with the orders he proposes.