R v Massie [1998] VSCA 82

[1998] VSCA 82

Court of Appeal (Vic)|1998-10-08|Before: WINNEKE, P., BROOKING and BATT, JJ.A.

View original source

At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

1998-10-08

Before

WINNEKE, P., BROOKING and BATT, JJ.A.

Source

Original judgment source is linked above.

Judgment (69 paragraphs)

[1]

The applicant has applied for leave to appeal against these sentences and the convictions which gave rise to them.

[2]

In addition to the tape recordings of incriminatory conversations between the applicant and Evelyn Burton and between the applicant and Joe Black, a number of documents were put in by the Crown as emanating from the applicant and supporting its case. The applicant himself gave evidence and called witnesses. Not surprisingly, there was no real challenge to the evidence led for the Crown of words uttered and acts done by the applicant in apparent furtherance of his desire to have two persons murdered and a third seriously injured. The defence - the only defence - raised at the trial was that he had not meant what he said when he spoke of having persons killed or injured. It was his case that everything he had said and done suggesting that he wanted his brother and sister-in-law killed and Marguerite Bourke injured had been said and done by way of pretence in order to entrap Burton into committing criminal acts by providing a self-proclaimed assassin so that he would then be able to exert pressure on her in order to get back from her, on behalf of Marguerite Bourke, a sum of $15,000 which Bourke had lent Burton. In support of this case a number of copy documents were put in evidence by the defence which the Crown contended had been manufactured after the event to support a false case. These included an extraordinary agreement, the original of which was alleged to have been signed by Bourke in the presence of no less than four witnesses, by which Bourke agreed to employ the applicant "to act as agent provocative in respect of Evelyn Burton".

[13]

"Now I must tell you as a matter of law what the Crown must prove to establish the offences charged. You may take murder, for the purposes of this case, as meaning killing, in the sense of intentionally causing someone's death. To prove that the accused incited Joe Black to murder his brother requires the Crown to prove that the accused, with the intention of having Black kill his brother, incited Black to kill his brother. In the same way, inciting Black to murder the accused's sister-in-law means that the accused, with the intention of having Black kill his sister-in-law, incited Black to kill her. That is the crime of inciting to murder, counts 1 and 2. Inciting Black to intentionally cause serious injury to Marguerite Bourke means that the accused, with the intention of having Black seriously injure Marguerite Bourke, incited Black to intentionally cause serious injury to her. What amounts to serious injury is a question for you, and if there is a combination of injuries contemplated you should consider their combined effect. That is count 3. The two offences of inciting to murder and inciting to intentionally cause serious injury have this in common: the accused must have requested or encouraged Black to intentionally harm the victim, and the accused must have done this with the intention of having Black harm the victim. The distinction between the two offences lies in the nature of the harm, that is, the harm which the accused must have incited Black to do to the victim and which the accused must have intended should be done to the victim. With inciting to murder, the harm is death. With inciting to cause serious injury, the harm is serious injury. For both offences, inciting to murder and inciting to intentionally cause serious injury, inciting means requesting or encouraging. The suggestion need not have originated with the inciter. It can originate with some third person or even with the person alleged to have been incited. But the accused must have incited the person he is alleged to have incited by requesting or encouraging him to commit the crime of murder, for counts 1 and 2, or the crime of intentionally causing serious injury, for count 3. The accused is charged with inciting and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested or encouraged shall be done. It is not necessary that the person incited should take any steps with a view to doing what he is incited to do. He may - as in this case - have no intention whatever of doing what he is incited to do, and even be a police undercover agent. In the present case the Crown says that the accused asked Black to kill his sister-in-law if she happened to be present when he was about to kill the accused's brother. As a matter of law, to make such a request is still to incite. A request to murder a woman if she happens to be present on a particular occasion is just as much an incitement to murder as a request to murder her made in perfectly general terms."

[26]

Grounds 2 and 3 concern the determination of the judge, notwithstanding the objection of counsel for the accused, that the Crown might put in evidence on the trial the evidence given by Burton at the committal. Once again, her Honour gave a considered ruling, which was that the evidence should be received. The prosecution relied on s.55AB of the Evidence Act 1958, whereby a deposition, and any exhibits mentioned in it, taken at a committal may be used as evidence in the trial if the witness is out of Victoria and the requirements of para.(b) of sub-sect.(2) are satisfied. One of these requirements said by the defence not to have been satisfied was the requirement that the accused or his or her legal practitioner "had a full opportunity of cross-examining the witness". The judge rejected this contention, which lacked substance, and which has not been renewed for the purposes of the appeal. The second point taken before the judge was that the evidence should be excluded in the exercise of a discretion, and reference was made to R. v. Collins [1986] VicRp 3; [1986] V.R. 37. The only argument put at the trial in this regard was based on the jury's need to see Burton in order to assess her credibility, leaving aside a passing and to my mind quite unpersuasive suggestion that other Crown witnesses would benefit from knowing that Burton could not be cross-examined. The important thing for present purposes is that counsel for the accused never suggested that it would be unfair to his client to receive all the material that was in fact received in consequence of the Crown's application. The Crown prosecutor had already made it known that he wished to place before the jury all the material which it is now said - for the first time - unfairly gave to the evidence of Burton a prominence that it did not deserve - her police statement, put in at the committal, the transcript of her evidence at the committal, the tape recording of her evidence at the committal and the tape and transcript of a conversation between Burton and the applicant.

[29]

Ground 5 is that the judge failed to direct the jury sufficiently or at all about the drawing of inferences. No exception having been taken to the charge, it is yet another example of the advent of different counsel and a combing of a charge regarded as fair and satisfactory at the time it was given for any word or phrase that might possibly be used in an appellate court. No one at the trial saw anything wrong with what the judge said about inferences and I see nothing wrong with it. The complaint now made about the words "not necessarily" is an idle one. The judge was only warning the jury that they should not treat her directions on matters of law as containing concealed comment on questions of fact. The other points now taken - about intention - are not properly taken in any ground of appeal. (The grounds have been twice amended.) It was argued that the judge should have given the jury directions about drawing an inference of intention. But the present case was not one in which, there being no express statement of intent by an accused person, the jury were asked to infer intent from a number of circumstances. The case was one in which the avowed intention of the accused was to have three persons killed or injured, and the question was whether it was a reasonable possibility that this was a pretence. My view that there is no substance in this point is reinforced by the absence of exception at the trial by the applicant's extremely experienced counsel. The other submission put to us about intention was that the judge, having told the jury that motive was relevant to intention, should have gone on to say that the jury should not take motive into account unless satisfied beyond reasonable doubt that the suggested motive existed. But a clear direction to this effect was in fact given, so that it is unnecessary to consider whether, in the light of what was said in R. v. Murphy (1985) 4 N.S.W.L.R. 42 at 59-60 and in Penney v. R. [1998] HCA 51; (1998) 155 A.L.R. 605 at 612, such a direction was necessary in this case.