R v McMahon [2004] VSCA 64

R v McMahon [2004] VSCA 64 - VSCA 2004 case summary — Zoe

[5]

The precise mental state of the applicant at the time when the deceased met his death on Thursday, 6 April 2000 is unknown. Some days after the death of the deceased, he was admitted to the Grampians Psychiatric Service; and he was later examined by Dr. Lester Walton in October 2000. At that time it appears that his symptoms were in remission; but Dr. Walton noted that he could make no definitive comment about his likely state of mind at the time when the death of the deceased occurred; and - therefore - whether any defence of mental impairment was or was not open. At all times, however, the applicant maintained that he was not implicated in the killing of the deceased who had been brutally beaten and stabbed to death in the unit which was occupied by the two of them. When Dr. Walton next saw the applicant (after his conviction), he was still maintaining his innocence. At that time, the applicant was compliant with his medication but was "relatively insightless" into the nature of his mental illness. During the course of the trial, the judge had voiced his concern about the evidence from a number witnesses who said that, at various times before and after the murder, the applicant was behaving in a manner which indicated that he was not taking his prescribed medication. His Honour "pondered" whether he was required to address "a matter" (i.e. "mental impairment") which the defence had not raised. I think I should note that, in this case, the judge was quite correct in not leaving the issue of "legal insanity" or "mental impairment" to the jury. It has not been suggested, on this application, that the learned judge should have left that issue to the jury. It is the fact, as his Honour said, that experienced trial counsel had, deliberately, not raised the issue of "mental impairment" at the trial. The defence, at trial, was that the applicant was not the person who had murdered the deceased; or - more particularly - that the Crown had failed to prove, to the appropriate standard, that he had. There was no evidence before the court upon which it could have been found that the applicant was either at the time of the killing, or at trial, mentally impaired. Even before the introduction into the law of this State of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the courts were very reluctant to conclude that - in circumstances where the defence had chosen not to raise insanity in accordance with McNaghten's case - the judge was under a duty to leave the issue to the jury where the evidence, upon analysis, might have supported such a finding. It is true that, in R. v. Meddings[1], Sholl, J. took the view that if the evidence at trial "reasonably raises a defence of insanity" it was the trial judge's obligation to submit the issue to the jury even though defence counsel had not advanced the plea. This view was adopted by the Full Court in R. v. Shields[2]. In the same year, in the case of R. v. Jeffrey[3], Barry, J. (with the concurrence of Gillard, J.) said of the statements made by Sholl, J. in Meddings (supra) and R. v. Starecki[4]:

[9]

The applicant initially appealed against both the convictions and the sentences imposed. Before turning to the grounds of those appeals, it is necessary to say something more about the evidence given at trial. The units at Ripon Street, Ballarat, are provided, through the auspices of the Catholic Diocese, to accommodate psychiatrically disturbed citizens. The deceased, as I have said, was a schizophrenic and the lawful occupier of Unit 2. Although the applicant had not been placed in that unit, he had taken up accommodation with the deceased some months before the murder. Although his occupation was unauthorized, it was apparently known to the authorities and tolerated by them. The "next door" unit on the site, No.1, was apparently occupied in similar fashion by two other psychiatrically disturbed persons. At the time of the murder one Daniel Griffin was in occupation of Unit 1. His co-inhabitant, John Hozjan was in "rehabilitation" elsewhere. The evidence suggested that the inmates of Units 1 and 2 were accustomed to consuming large amounts of alcohol, but engaged in little gainful occupation. There was evidence that when the deceased, Griffin and the applicant had been drinking they would become "more aggressive, but not violent". The evidence also suggested that the deceased and the applicant were smokers of marijuana. Griffin said that he and the deceased would become intoxicated about "3 or 4 times per week". He also said that a number of people were accustomed to coming to Unit 2 to "smoke and drink". Hozjan, who was not present at the units on 6 April 2000 when the murder occurred, described the applicant's general behaviour as less irrational than that of the deceased. He said he had seen the deceased smoking marijuana; also the applicant, but less often. He said that, although he had seen the deceased and the applicant squabbling over money for food and rent, there was no violence between them. Each, however, would "put in money" for marijuana. He admitted that he had previously named one McInerney as the supplier of marijuana. McInerney also gave evidence. He agreed that he had known the deceased for some 12 months prior to his death; but denied that he supplied marijuana or that he had seen marijuana smoked at the unit. The only thing that he had supplied, he said, was a "slab of beer" at a time which was no better identified than between "before Christmas 1999" and "3 or 4 weeks" before the murder. When he was at the unit on this occasion, the applicant had shown him a "folding pocket knife" about "8 or 9 inches long" which was "white with a gold or goldie coloured handle". Following this day, so McInerney said, he did not see the applicant again. His evidence, for reasons not clearly apparent, had been "tailored"; but the "tailoring" appeared to have deprived it of much of its meaning and significance. Nevertheless, as will become apparent, it developed a "life of its own".

[13]

The next event which was known to have occurred at the units, and which was the subject of independent evidence, happened at approximately 7.25 p.m. A loud "bang was heard by a neighbour, Robert Suter, which appeared to come from behind his garage. He looked down the side of his fence line towards the units and saw smoke seemingly coming from the vicinity of the dumpmaster in the laneway at the rear of the units. He walked around the rear of his premises to the laneway at the rear of the units in Ripon Street. Unit 1 appeared to be in darkness but Unit 2 appeared to be fully lit. He noticed that there was a fire in the garage to Unit 2 and the "roller door" at the front of the garage was buckled outwards. He went to the front of Unit 2 and could see that the security wire door to the unit was closed and locked, but that the front door to the unit was open. As he was looking at the door, it slammed shut. Then the lights in the unit were switched off so that the unit was plunged into darkness. He thought he could hear sounds like footsteps coming from inside the unit. He ultimately rang the Fire Brigade. He estimated that a period of 8 to 10 minutes had elapsed between hearing the explosion and ringing the Brigade. The fire trucks arrived at about 7.45 p.m. Suter met them in the laneway. The fire fighters took steps to put out the fire in the garage. When they were able to enter the garage they found the burned body of the deceased sandwiched between a bed base and a mattress. Later investigations revealed that the deceased had been brutally bashed and stabbed in the unit, and his body dragged from the main bedroom down the passageway to the back door; then down the steps at the back door along an alley way at the back of the unit to the garage where the body had been dumped on the bed base and covered with the mattress, which had then been set on fire. The cause of the explosion, which had buckled the roller door, was thought to have been due to the ignition of petrol in a motor mower which was a short distance from the seat of the fire. The fire fighters contacted the police who arrived shortly after and secured the area.

[14]

Subsequent investigations by the police revealed that the deceased had died as a consequence of trauma to the head consistent with a blunt instrument and incisions in the neck, chest and back which, according to the pathologist, were consistent with "stab-type" wounds with a sharp instrument. No murder weapon or weapons were identified. It was obvious that the deceased had been killed inside the unit and "blood trails" indicated, as I have said, that the body had been dragged out of the unit into the garage. A large amount of blood in the main bedroom (that occupied by the deceased) suggested that the brunt of the assault on him occurred in that bedroom, probably whilst he was lying down. There was blood also found in the lounge room and in the bathroom. The distribution of blood in the bathroom suggested that the killer had washed himself in there after the killing. Although the police quickly became aware that the occupiers of the flat were the applicant and the deceased, they were not able to establish the identity of the deceased for some time. Only then did they realize that it was the applicant who had disappeared. It was not until Monday, 10 April 2000, that he was located by the police. On that day he was driven by his brother from Ballarat to the Homicide Squad office in Melbourne. They were accompanied by a friend, Lee Wade, and a lawyer whom the brother had rung during the week-end. It appears that Wade had found the applicant on Saturday, 8 April, in a service station close to Wade's house. Wade, who was aware from reports in the local newspaper that there had been a killing, and a fire, in the Ripon Street unit where the applicant lived, had asked the applicant whether he knew "what was going on". The applicant had replied: "No, why?" The applicant told Wade that he had been sleeping near the railway line. It appeared to Wade that he was not "registering". Wade took the applicant home with him, and rang his brother, Askin McMahon. The brother then went to Wade's house and found the applicant who was "staring and mumbling". It appears that the applicant stayed at the Wade's house during the week-end. By the time he was taken to the police on Monday, he had had a shower, and a change of clothes. A black "T-shirt" and some blue track-suit pants were later given to the police. If the taxi driver's description of the applicant, as at 6 April 2000, is correct, the clothes given to police could not have been the clothes worn by the applicant on that day. Although the police attempted to interview the applicant on 10 April 2000, the applicant's condition did not enable it to be completed. However, the police took from him the shoes which he was wearing. He returned to Ballarat for the night; but came back to Melbourne on the following morning to the Magistrates' Court where an order for the taking of a blood sample was made. Thereafter, he apparently returned to Ballarat where he received treatment from the Grampians Psychiatric Services. He was not formally interviewed by the police until June 2000. However, before he returned to Ballarat on 11 April, he had been examined by Dr. Hood of the Institute of Forensic Medicine. His hands revealed scratches on the back of them, and a series of "scabs". There was a large bruise on one thigh.

[57]

These were, of course, not the only matters upon which the prosecutor made strong comment about the applicant's evidence. But they were the matters which, in discussion with the judge, the prosecutor submitted should be left to the jury as "consciousness of guilt lies". Following that discussion, his Honour said that he would not be prepared to leave as such "lies" the applicant's "claim to have left his shoes near the bike"; nor his evidence that at a time late in the afternoon he had seen two men, whom he did not know, sitting in the lounge room with the deceased. His Honour said that he could not leave those matters as lies evidencing "consciousness of guilt" because there was no evidence, independent of the accused, to substantiate them. His Honour appeared to take the view that the decision of the High Court in Edwards v. R.[9], established that principle. It should be recalled that Edwards was a case where the evidence of the "lie" was to be used to corroborate the evidence of the complainant and depended for its proof upon acceptance of the evidence which was required to be corroborated. Generally speaking, there is no reason why a lie which the jury accept has been told by an accused person in or out of court in respect of a material matter (in the sense that it is concerned with a circumstance or event connected with the offence) cannot constitute an admission against interest provided that the jury, properly instructed, determine that it has been told from a consciousness of guilt. If it were otherwise, it would mean that a jury which rejected, as a fabrication, an elaborate alibi mounted by the accused on his trial would not be entitled to use its finding as some evidence probative of the guilt of the accused[10]. Speaking for myself, I would have thought that the evidence of the applicant that he had seen two strangers in the unit in the company of the deceased shortly before his death, if rejected by the jury as a deliberate lie, was the very sort of lie which a jury, properly instructed, could have used as demonstrating a consciousness of guilt. It goes without saying that each case must depend upon its own circumstances, including the nature and materiality of the statement which is rejected by the jury as untrue.

[59]

In support of these submissions which, if I might say so, were cast in imperative terms of a type which can render them no more persuasive, Mr. Holdenson referred us to the case of R. v. Sutton[12], which was a case where the court had set aside a murder conviction because the judge had left to the jury, as lies capable of being used as probative of guilt, certain evidence which, on the court's analysis, did not amount to "material" lies. The facts in Sutton's case were very different from this case. In that case, the body of the deceased (with the throat cut) had been found next to a swimming pool in Forbes (NSW) at about 6.45 a.m. on 22 March 1984. The accused was the last man seen in the company of the deceased at an hotel at about 11.30 to 12 midnight on 21 March. They had gone to the park, where the deceased's body was found near the pool, to resume drinking. The Crown called evidence from a friend of the accused (Ms. Carter) that, at about 12.30 a.m. on 22 March, the accused had come to her house. He was covered in blood - on hands, clothing and face. He asked to be driven to his brother's house, a request with which Ms. Carter complied. In his record of interview with the police, and his unsworn evidence at trial, the accused categorically denied the evidence of Ms. Carter and told the police that, after he had left the deceased, he had "hitched" a lift to a town called Ardlethan some 200 kilometres from Forbes; had seen his girl-friend, and "hitched" back to Forbes at about 8.30 p.m. on 22 March. In order to rebut this story the Crown led a body of evidence, which included five witnesses together with a number of plans. The Crown's aim was apparently to destroy the worth of the accused's story and, thereby, to enhance the reliability of Carter's evidence. Not surprisingly, the Court of Appeal (NSW) found that this body of evidence, even if found to be untruthful, could not be material to the killing of the deceased. It did not amount to an alibi for the accused's whereabouts at the time when the deceased was killed in the early hours of 22 March; and it could stand quite consistently with Ms Carter's evidence. It, thus, created a "false issue in the case" going to collateral questions of credit. As Street, C.J. (with whom the other members of the Court agreed) said[13]:

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Judgment (113 paragraphs)

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