R v Murphy [2004] VSCA 23

Court of Appeal (Vic)|2004-03-05|Before: WINNEKE, P., VINCENT and EAMES, JJ.A.

CRIMINAL LAW - Murder - Evidence - Lies and post-offence conduct - Whether relied on as exhibiting consciousness of guilt - Motive - Inferences - Appropriate directions - Joint trial - Whether use by prosecutor of record of interview of co-accused caused miscarriage - Opening address by prosecutor - Whether discharge of jury was required.

CRIMINAL LAW - Sentence - Murder - Whether burning of body aggravated offence - 20 years for murder - Partial cumulation on other offences - Total effective sentence of 22 years with non-parole period of 16 years not manifestly excessive.

I have had the advantage of reading, in draft form, the reasons for judgment of Eames, J.A. I agree, for the reasons which his Honour gives, that the applications for leave to appeal against conviction and sentence should be dismissed.

I agree that the applications for leave to appeal against conviction and sentence should be dismissed. I do so for the reasons advanced by Eames, J.A. in his judgment.

On 15 September 2001 a Supreme Court jury returned verdicts of guilty against the applicant on counts of murder, aggravated burglary, false imprisonment, theft of a motor vehicle and kidnapping. The applicant had been tried jointly with Clive Clayton Watson. Watson was also found guilty on four of those counts but was found not guilty of murder and guilty of manslaughter. After orders of cumulation of two years were made the applicant's total effective sentence was 22 years' imprisonment with a non-parole period of 16 years. Watson was sentenced to a total effective sentence of 10 years' imprisonment with a non-parole period of eight years. These are applications for leave to appeal against conviction and sentence.

The offences were alleged to have occurred on 18 July and 19 July 2000 at which time the applicant was 29 years old and his co-accused, Watson, was 33 years of age.

At the time of his death the deceased man, Christopher Jewell, was living with Ms Malyssa Mackay, who was pregnant with his child. Jewell had moved into a

house rented by Mackay approximately a month prior to his death. Mackay had previously been in a relationship with the applicant which had commenced at about April 1998. Between that time and about September 1999 the relationship had broken down on some occasions but had generally been maintained. In late 1999 Mackay moved to New South Wales but returned occasionally to Melbourne, on which occasions she would reside with the applicant at his parents' home in Melton. In January 2000 Mackay returned permanently to Melbourne and had some contact with the applicant but by the end of February 2000 she considered the relationship was over and told the applicant that that was so.

Upon her return to Melbourne Mackay, together with her three children from an earlier relationship, was living in a caravan park. It was whilst so accommodated that she commenced her relationship with Jewell. At the urging of the applicant that she move into better accommodation Mackay moved into a house at Sunshine, for which the applicant paid the bond and rental in advance. Jewell moved into the house to live with Mackay in about June 2000 and Mackay told the applicant that she was living with Jewell and also that she was pregnant by Jewell.

When told of the relationship with Jewell the applicant said that Mackay was his girl not Jewell's. He continued to visit Mackay saying that he wanted her back and made threats against Jewell saying that he would shoot him, kill him or bash him. He also said that he would get friends to kill Jewell. The applicant repeatedly attended the house and on one occasion an altercation occurred with Jewell in which the applicant threatened to shoot Jewell and himself. When a friend of the applicant arrived and tried to calm him the applicant said that he would "get" Jewell and "have him bashed and stuff".

In response to the applicant's assurance that he would leave her alone if she would do so Mackay resumed sexual relations with the applicant, but continued to reside with Jewell. In July 2000 she and Jewell became engaged.

During the trial a considerable amount of evidence was called concerning the applicant's jealous reaction to Mackay's relationship with Jewell. When speaking to friends about the break-up the applicant appeared distressed and angry and told one friend, Jodie Majzek, that he was going to purchase a gun and kill himself. The Crown also called Pinna Sanna who together with the applicant and Watson had worked as a security guard at Salt Nightclub in South Yarra. During their employment together the applicant had expressed his concern about the break up of his relationship with Mackay. At the applicant's request Sanna had accompanied the applicant to the caravan park to discover whether Mackay had gone on holidays with Jewell and he described the applicant as being "pretty angry, upset". About three weeks later Sanna received text messages on his answering machine from the applicant saying "We've got to get him". The applicant asked Sanna to find someone who would kill Jewell for the applicant but although Sanna pretended to be making such inquiries he did not do so.

Dr Siva Sooknandan, a general practitioner, said that in April 2000 he had referred the applicant to a psychiatrist, Dr Varma, because he believed him to be depressed and suicidal as a result of the relationship problems he was having with Mackay. He saw him again in May and thought he was improving. The applicant had not discussed causing harm to anyone. The pychiatrist, Dr Varma, said he treated the applicant for depression and personality problems, including insecurity, suicidal ideation and aggressive behaviour. The applicant said that he was getting into very bad moods and tempers because Mackay had left him for another man. Dr Varma prescribed medication. The applicant said that he had been stalking his ex partner and was distressed upon learning that Mackay was pregnant to Jewell. Dosage of medication which had been prescribed was increased at that time. On 28 June 2000 the applicant was the best that Dr Varma had seen him. He saw him again on 12 July 2000 at which time the applicant reported feeling more settled and less angry and said that he had had lunch with Ms Mackay a couple of weeks before. He was under medication. Although anger management had been discussed he had not commenced any such course, but anger was not the primary concern at that time.

A childhood friend of the applicant, Michael Nedic, gave evidence that the applicant was devastated when he broke up with Mackay. In the afternoon of Tuesday 18 July 2000 he was phoned by the applicant while Nedic was working at his own sister's house. Nedic invited the applicant to assist him in the work he was doing and he did so. Later in the day they returned to Nedic's house and the applicant produced a green sports bag and asked Nedic to look after it until Friday, which Nedic agreed to do. The applicant went home that night, having received a phone call from Mackay earlier that evening. Nedic subsequently turned the bag over to the police.

At about 7.30 a.m. on 18 July 2000 Jewell arrived home from work after working nightshift. He then went to bed and later in the morning Mackay departed the house, returning home at about 2.15 p.m. At that time Jewell's car was missing, as was he. There were signs of forced entry through the back door of the house and she tried to contact people who would know of Jewell's whereabouts. Mackay then first contacted the police and next day when Jewell had not returned she went to the police station to renew her report. She advised police of a conversation she had had with Watson on an earlier occasion. On that earlier date Watson had told her that the applicant had a gun in the boot of his car and was going to come over after work and shoot Jewell. Nothing had in fact transpired on that occasion. The police arranged for Mackay to telephone Watson while they recorded the conversation, but he denied knowledge of Jewell's whereabouts.

In due course investigating police interviewed both Watson and the applicant. Police had recovered the sports bag from Nedic which contained clothing, two balaclavas, a pillow case, gloves and a sawn-off double-barrelled shotgun. Having attended the premises at which Jewell resided on 19 July 2000 police found spots of blood on the bed and whilst they were present the applicant rang saying that he was checking on Mackay's welfare. The police that evening located Jewell's burnt-out vehicle at an isolated location. The vehicle had been placed in Lerderderg State Forest near Bacchus Marsh. The charred remains of a person was in the vehicle.

Watson's Torana vehicle was later inspected and a four litre can of petrol was found in the boot, almost empty.

The pathologist, Dr Michael Burke, was unable to determine the exact cause of death. The body had been substantially consumed by the fire. Although there were fractures to the head they were consistent with being caused by the heat from the fire. It appeared that the deceased had been handcuffed with his hands behind him but he did not die of carbon monoxide poisoning. He may have been deceased prior to the fire commencing or he may have died due to the effects of the heat. Dr Burke said he could not rule out positional asphyxia as the cause of death but thought that was unlikely.

The applicant was interviewed on a number of separate occasions by police officers. On 19 July 2000 he told Detective Senior Constable Hancock that he had spent the day of 18 July, from about 10am, in the company of Michael Nedic at Nedic's sister's house where he had been painting. Apart from a break for lunch he had remained at the sister's house and then drove to Nedic's home for dinner and it was whilst there that he heard from Mackay that Jewell was missing.

On 21 July 2000 three separate interviews were conducted with Detective Senior Sergeant Colbert and Senior Detective Stella. In the first interview the applicant denied any involvement, at all, in Jewell's death. The second interview comprised a combination of "no comment" answers and denials, in particular a denial of having anything to do with the bag which had been given to Nedic.

After the second interview had concluded the applicant initiated a conversation with Detective Senior Sergeant Iddles. In that conversation the applicant admitted that he had gone to Jewell's house. He said that he had entered the house, without a gun, and that he and Watson had got Jewell out of bed and had put him in the boot of the car. He was not handcuffed and was driven to Lerderderg Gorge and left in the boot of the car. The applicant said he and Watson went back to the scene the next day but the applicant had remained in the car on that occasion. The applicant said it was not he who burnt the car. He said that all that had been intended was to frighten Jewell and then to let him go. He told Iddles that he did not mean to cause Jewell's death, that it was an accident and that "it all went wrong".

In the third interview with Colbert and Stella, which followed the discussion with Iddles, the applicant admitted going to Mackay's home and kicking in the back door. He said he was with Watson and they put Jewell in the boot of the car and drove him to Lerderderg Gorge and that was the last that the applicant had seen of Jewell. The applicant said he did not want Jewell hurt; he just wanted him scared so that he would leave Mackay. He said that he and the co-accused were wearing balaclavas and gloves and that Watson was carrying the sawn-off shotgun, which was owned by the applicant. He said he had purchased the gun a few months ago in order to end his own life. The handcuffs belonged to Watson. He said he knew that no-one would be home (apart from Jewell) because he had asked Mackay the previous night about that. He said that when they went into the bedroom they handcuffed Jewell and that Watson then asked Jewell for his wallet and PIN number. The applicant said they carried Jewell outside and put him into the boot of Watson's car. The applicant drove Jewell's car and together with Watson driving his own car they went to Lerderderg Gorge as they had planned. Jewell was there secured by tape, including taping to the eyes and mouth. This was done by the applicant but it was not done to the extent that Jewell could not breath. The applicant said it was Watson who had worked out what was to be done but it was the applicant's idea that they would scare Jewell . The applicant told Colbert that the original plan had been to call the police and to say where Jewell was.

Jewell's mobile phone and wallet had been taken from the house and the applicant said that he later threw them into the river. The applicant said that he also removed the number plates from Jewell's car and threw those into the river, too. It was an admitted fact that money had been withdrawn from the bank account of the deceased on 18 July 2000.

After leaving Lerderderg Gorge the applicant said he went to Nedic's house and asked Nedic to provide an alibi for him. It was then that he gave the bag containing the gun and other material to Nedic. On the following day Watson, according to the applicant, wanted to burn the car. The applicant agreed to go with him but upon arrival refused to get out of the car and Watson told him to remain where he was. The applicant told police that he said to Watson that he should check Jewell. At that time he did not know whether Jewell was alive or not. He said he had hoped that he might have got out of the car. Watson then set fire to the car using fuel from a container that he had brought with him. Watson had asked the applicant to have the container filled with petrol and the applicant had done so and had put it into the boot of Watson's car. The applicant said that although he had realised that Jewell might have been burned alive, at that time he was afraid to move from the car.

The case against Watson depended largely on admissions made by Watson to witnesses and upon statements made in his own record of interview with police. Watson had told others that the applicant had asked him to scare Jewell and that he had accompanied the applicant in order to prevent him hurting Jewell. He said to others that he had been in the company of the applicant when he grabbed Jewell and put him in the car, with a plan to simply leave him overnight and then return the next day and let him go. Upon returning the next day, however, they found that he was already dead, and it was then that the car was set alight, that being done by the applicant, not by Watson. Evidence was led that it was Watson who had owned a pair of handcuffs.

A prisoner on remand with Watson gave evidence that at a time they were in custody together Watson had made a confession to him of having kidnapped a person and placing that person in the boot of his car, taping him and covering his head, hiding the number plates and then returning the next day to burn the car, which they did without knowing whether the victim was dead or not.

In his record of interview with police Watson largely implicated the applicant and said it was the applicant who taped the face of Jewell and said that he had taped Jewell so substantially that he might not have been able to breathe.

During the trial no application for separate trials was made by counsel for either accused.

By notice of appeal dated 18 September 2001 the applicant sought leave to appeal against his conviction on two grounds only: first, that the verdict on the count of murder was unsafe and unsatisfactory and, secondly, that the jury's verdict of guilt of murder was inconsistent with the verdict of guilt of manslaughter for the co-accused. One ground of appeal against sentence was advised at that time, namely, that the sentence was manifestly excessive. Shortly before the appeal came on for hearing, and more than two years after the filing of the original notice of appeal, a notice was filed on behalf of the applicant seeking leave to add an additional six grounds of appeal against conviction and an additional four grounds of appeal against sentence. At the same time, ground 2 of the original grounds of appeal was abandoned.

Without ruling on whether to allow amendment of the grounds of appeal the Court permitted counsel for the applicant, who was not counsel at trial, to argue the additional grounds. Because of the late notice of the additional grounds the report of the trial judge did not refer to those grounds and the outline of submissions by counsel for the respondent was also, not surprisingly, filed late.

I will deal with the grounds and proposed grounds of appeal in the order they were argued on behalf of the applicant.

"The learned trial judge erred in that he failed to direct the jury that before they could use evidence of motive relied on by the Crown to infer an intention to commit murder they should be satisfied of that motive beyond reasonable doubt."

In support of this ground Ms Dixon, counsel for the applicant, submitted that in this case there was a danger that the evidence that the applicant was jealous and angry about Jewell's relationship with Mackay might be treated by the jury as amounting to more than merely a motive for harming or disadvantaging Jewell but rather as evidence of an intention to kill or to cause really serious injury to Jewell, thus providing the critical missing ingredient for a murder conviction. Ms Dixon submitted that in this case there was no direct evidence of murderous intention on the part of the applicant. Indeed, not even the cause of death was known. Murphy's statements to police concerning the events, even if they amounted to an acceptance that his acts or omissions caused the death, did not contain any admissions that he intended to kill or to cause really serious injury to Jewell. Counsel submitted that the only material which directly asserted otherwise emanated from Watson in his own record of interview and that material was not admissible against Murphy.

At no time did the prosecutor suggest to the jury that the evidence of motive could constitute anything more than one item of circumstantial evidence to be taken into account when reaching their verdicts; in particular, it was not suggested by the prosecutor that motive was itself capable of providing proof of guilt or proof of murderous intention. Ms Dixon submitted, however, that in the circumstances of this case the jury should have been directed that if they were to treat the evidence of motive as supporting proof of an intention to kill or to cause really serious injury then they must be satisfied of that element beyond reasonable doubt and therefore would have to exclude the reasonable possibility that the motive might have merely produced an intention to frighten Jewell into abandoning the relationship with Mackay, or at worst an intention to have caused injury which was less than really serious.

The learned trial judge gave what amounted to a standard direction as to motive, which included a warning that they should have regard to the fact that an accused person might be considered to possess powerful motive for committing an offence and yet the jury may not be satisfied beyond reasonable doubt that the accused person committed the offence. His Honour told the jury, in conventional terms, that the presence or absence of motive was not an element of the crime but might provide some assistance to the jury in assessing the likelihood of the participation of the accused in the offence. His Honour told the jury that whilst the absence of motive would not prevent a verdict of guilty, if they were otherwise satisfied of guilt beyond reasonable doubt, it was also the case that motive could not be used: "to fill up a gap in the Crown case where you are not so satisfied. The presence or absence of motive is simply one of the factors to be taken into account when considering whether or not the accused may have been involved in that which the Crown is trying to attribute to them".

His Honour told the jury that the prosecutor had identified what he called the "almost obsessional motive" which the applicant had, as being a desire to get back together with Mackay. The judge said, however, that the prosecutor was putting motive forward only "as part of the circumstantial case to be considered along with a number of other objective facts". He noted that defence counsel conceded some of the evidence as to motive but had contended that it was not as serious as was being made out and that the statements made by the applicant about what he would do to Jewell were, largely, "all talk".

The directions as to motive were not the subject of any exception taken by counsel at the trial.[1]

Proof of motive is not an essential element of the offence of murder, and thus, did not have to be proved beyond reasonable doubt, but there may be cases where proof that the accused had a motive to kill or cause really serious injury to the victim was either an essential link in a chain of sequential reasoning towards a verdict of

guilty of murder[2] or else was so critical a factor for the Crown case, in a practical sense, as to amount to an essential component of that case.[3] In either of those cases the trial judge would be obliged to direct the jury that motive to kill or cause really serious injury had to be proved beyond reasonable doubt. Such a case might also call for particular emphasis, by way of a direction, to ensure that the jury not confuse motive with intention.

In this case motive was not an essential link in sequential reasoning towards guilt. The applicant was not denying that he had kidnapped the victim and left him in the boot of a car where he had died. Nor was there any contest about the fact that, whatever the precise cause of death, it flowed out of conduct engaged in by himself and Watson. The Crown relied on a range of circumstances in proof of murderous intent, motive being merely one such factor. Absent motive, the Crown case in proof of murder beyond reasonable doubt would have remained very strong.

In directing the jury as to the necessity that murderous intention be proved beyond reasonable doubt, his Honour told the jury that before they could infer such intention they had to be satisfied beyond reasonable doubt that there was no reasonable explanation open which was inconsistent with that intention. Furthermore, when his Honour separately directed the jury on the drawing of inferences he again warned them that they could not draw an adverse inference as to any one of the elements of the offence unless it was the only reasonable inference open to be drawn.

In the circumstances of this case the trial judge was not obliged to have given a direction that motive had to be established beyond reasonable doubt.

In my view proposed ground 3 could not succeed.

"The learned trial judge erred in that he failed to direct the jury sufficiently regarding the drawing of inferences relating to an intention to murder from evidence relied on by the Crown including: (1) the disposal of the deceased's mobile phone, wallet and registration plates; (2) the concealment by the accused of the bag containing the gun, balaclavas and other accoutrements. (3) the setting up of an alibi by the accused, Murphy, through his attendance upon Mr Nedic."

The Crown case relied on the accumulation of circumstantial evidence from which inferences of guilt could be drawn. The complaint under this proposed ground was that more was required in the directions by the judge to ensure that the jury fully grasped that in order to draw an inference of guilt of murder - that is, in particular, of an intention to kill or cause really serious injury - the jury had to exclude the rational competing inference that the conduct relied upon by the Crown as evidencing, inferentially, murderous intention supported the competing inference that the conduct was engaged in merely out of fear of detection and prosecution on the counts of kidnapping and false imprisonment, or in consequence of an unintended death having occurred. In other words, whilst that conduct might be consistent with a person who had in fact caused death with murderous intention it might, as a reasonable possibility, also have been engaged in by a person who did not have that intention, at all.

The Crown placed weight on a number of items of evidence in support of the contention that the applicant intended to kill Jewell and not merely to scare him and subsequently release him. Of particular importance in that respect was the fact that the vehicle in which Jewell was confined was driven to an extremely remote area where it was unlikely ever to be located. In the event that the vehicle and body were later located the removal of the number plates from the car, together with the removal and disposal of the wallet and mobile phone of the deceased pointed to an intention that the victim would not be identified. Furthermore, the fact that the victim's PIN number was used to access his banking account at an ATM machine on the other side of town was intended, so the prosecutor contended, to create the belief that Jewell had simply walked out of his home and relationship, but was still alive. That conduct, the Crown contended, pointed to the conclusions both that Jewell was dead or was expected to be soon dead when they left the forest on 18 July and also that the purpose of the kidnapping was to be his death.

Additionally, the setting up of the false alibi and the concealment with Nedic of the bag containing the gun and other incriminating items was relied on by the Crown as leading to an inference that it was not expected that Jewell would reappear on the scene. That, in turn, was said to be consistent with knowledge that he was already dead or would soon be dead, and that death had been intended. The return to the forest the following day occurred after the applicant had been interviewed and given a statement to police denying any knowledge of Jewell's whereabouts. The prosecutor contended that the interview had precipitated the trip and the fact that no disguises were taken with them, and that they obtained petrol prior to attending the scene meant that the applicant and Watson knew that Jewell would already be dead, and demonstrated their intention to dispose of his body.

The items of evidence referred to in this ground of appeal no doubt offered powerful support for the Crown case of murder. Counsel submits that, in effect, they constituted indispensable links in the chain of reasoning towards a conclusion of murderous intention. Accordingly, the jury should have been directed that each item had to be proved beyond reasonable doubt as being consistent only with such a murderous intention rather than with an intention to cover up the offences of kidnapping and false imprisonment and/or being consistent with the intention having been merely to frighten Jewell but death having occurred unintentionally.

Counsel for the applicant at trial submitted to the jury that they ought be careful not to indulge in speculation; they ought not draw the inferences the Crown sought to have drawn. He submitted that the applicant had told the police that the purpose of their actions had been merely to frighten Jewell and, rather than view his actions as being planned and rational, they should see his conduct as being immature, stupid and unplanned behaviour during which things had gone wrong and caused an unintended death. The return to the scene should be regarded as being the product of panic.

His Honour gave a lengthy, but conventional, direction concerning the drawing of inferences. In the course of his direction he said the following:

"When you are drawing an inference in a criminal trial, and where the inference you draw about facts assume significance in the Crown case, then you must not draw such an inference unless you are satisfied that it is the only proper inference to draw. If you were drawing an inference about an important matter, such as an element of the offence of murder, or an inference about a fact which is significant in the establishment of an element of the offence of murder, you must not draw such an inference unless it is the only reasonable inference open on the facts. That stems from the burden of proof which rests upon the Crown to establish every fact beyond reasonable doubt in so far as the elements of the offence are concerned before any verdict of guilty can properly be reached. This does not mean, of course, that you are obliged to disregard or discard every piece of evidence which does not by itself establish any of the elements of the crime beyond reasonable doubt. You must consider what weight and what significance is to be given to each piece of evidence, but, importantly, you must also consider what weight and significance is to be given to the united force of all the evidence when put together. One piece of evidence may resolve your doubts concerning another piece of evidence. However before you return a verdict of guilty, you must be satisfied beyond reasonable doubt that all the elements of the offence have been established.

Although this may be a conventional direction as to inferences it precisely identifies and addresses those concerns which Ms Dixon said arose in the case save that it did not deal with the specific items of evidence to which this ground refers. Ms Dixon submitted that the judge ought to have related his directions as to the drawing of inferences expressly to these items of evidence and, as to each of them, warned the jury as to alternative inferences inconsistent with an intention to kill which had to be excluded before they could infer that the applicant had a murderous intention.

Although in the circumstances of a particular trial it may be necessary or desirable to identify for the jury those facts which the judge concludes do constitute indispensable links in a chain of reasoning towards an inference of guilt, and to state specifically that that they must be proved beyond reasonable doubt, not all intermediate conclusions of fact will fall into that category[4], and whilst the jury must be told clearly of the requirement of proof beyond reasonable doubt directions concerning the standard of proof of individual pieces of evidence or intermediate conclusions should not be given where it would be unnecessary or confusing to do so[5]. Save, as discussed above, it is for the jury, as triers of fact, to determine what facts do constitute indispensable links in their chain of reasoning towards a guilty verdict.

Powerful as the particular items of evidence were they were merely part of the material on which the prosecutor relied. No one item was suggested by the prosecutor to constitute proof of guilt. The jury were warned to have regard to competing inferences and there could have been no doubt in this case that the only competing inference which was being offered was that rather than there being an intention to kill there was an intention merely to scare.

Once again, no exception was taken to the charge nor were any directions sought in terms now contended to have been necessary. That omission is significant. The jury could have had no doubt at all what the competing explanation was which the defence advanced for this conduct and for the judge to have highlighted these specific items of evidence may well have been damaging to the defence.

The obligation of a trial judge is to ensure that a fair trial is conducted and that the jury is appraised of the issues of fact and law which are relevant to their decision.[6] Whilst the judge must generally relate the evidence to the issues in the case he or she is not under an obligation to rehearse all of the evidence, nor, save as discussed above, is the judge obliged to deal with individual items of evidence where they do not constitute indispensable links in a chain of proof.[7] Likewise, whilst the judge must fairly summarise the arguments of counsel the weight which ought to be given to particular items of the evidence is a matter for argument by counsel and determination by the jury, not for direction by the judge.[8]

I do not consider that any of the identified items of evidence fell into a category which required more specific direction than that given by his Honour.

In my opinion, there is no substance in this proposed ground.

"The learned trial judge erred in that he failed to direct the jury sufficiently regarding consciousness of guilt in relation to the applicant's post-offence conduct and lies in circumstances where the Crown referred to those matters as showing an intention to escape `true criminal responsibility'."

In the last of his records of interview, upon which his defence was substantially based, the applicant denied that there had been any intention to kill or cause really serious injury to Jewell. It is appropriate to refer to that interview in a little more detail, but prior to commencing that interview he had told Detective Senior Sergeant Iddles that he had not killed Jewell and that the death had been an accident. They had merely intended to frighten him.

In the last interview with Colbert the applicant said that the plan had been to frighten Jewell into leaving his relationship with Mackay. When he was left in the car he was alive and in good health and was able to breath. It was intended that they would call the police and tell them where he could be found. If he had wanted to, then Jewell could have got out of the boot, the applicant said, and he added that in the past, when mucking around with his own brothers, he had been placed in such a situation with his hands tied and he had been able to escape. The applicant said that he had thought Jewell would have got out of the car. He denied that he killed Jewell or wanted him dead. Although the car had been placed about 30 metres from the bush track it could be seen from the track and the applicant said he wanted Jewell to be found, because he was intending to call the police. He agreed that, in fact, neither of them called the police nor told anyone where Jewell could be found. He asked Nedic to provide an alibi, which was just stupid behaviour. He gave Nedic the bag because he was scared. He was intending to go back to the forest and release Jewell but he was warned that if he did then he would be blamed for the kidnapping, although Jewell had never seen their faces.

The applicant initially said in this interview that he had only found out that the car had been torched the day after he had left it there. He had learned that from the police. He said that was the first he knew that Jewell was dead. Upon further questioning the applicant soon agreed that he had been present when it was torched. He said it was done by Watson. The applicant said he had refused to leave the car and had said he did not want Jewell dead. He asked Watson whether Jewell was alive and was told he was dead. He had asked Watson to check on Jewell because if he was alive the applicant was going to "undo it". The applicant said he had purchased the petrol used to burn the car. He had filled a container at Watson's request when they were together. His own car had run out of petrol and Watson told him to put the container in the boot, and then on the way to the site said he would torch the car, using the petrol. The applicant wanted to release Jewell and asked Watson to check whether he was alive. He told Colbert he still did not know whether Jewell had been alive when the car was torched. He did not want Jewell killed. "I didn't want to go that far". He said that he had later denied knowledge of the events because he was afraid he would be accused of murder, but when he left Jewell he was alive, and he intended to return and release him.

In the course of this interview he said he removed the number plates because Watson did not want the car recognised: "He didn't want no one to find it. But I did. That's why I - when we put him in the car I made sure I didn't do nothing up tight on him, so he could get out". He had been angry, "but not that angry", that Mackay was pregnant to Jewell.

In his closing address the prosecutor submitted to the jury that even if they accepted much of what was said in the record of interview the jury would still come to the conclusion that they had intended to cause really serious injury and thus would be satisfied of murderous intention. Nonetheless, he examined the records of interview of both accused and said that the statements made in the records of interview denying that there was a plan to kill Jewell were "lies". As to the suggestion that the death was merely bad luck, he submitted that the death was the final phase of what had been planned and to which both were parties, and the prosecutor added "from first to last they have attempted to lie, to mislead and to deceive in order to escape from their true criminal responsibility in relation to this matter".[9] Later he said of the records of interview "and what they say in their records of interview were lies and what they were trying to do in their records of interview was to try and diminish the responsibility or the role that they played during the course of the commission of the offence".[10]

The prosecutor suggested that both were lying in their records of interview in order to lessen their individual roles and to suggest that it was a plan merely to scare, not to kill, Jewell. As to the statement by Murphy in his interview that when Jewell was left in the car on the first day he was in "perfect condition" (apart from being afraid and being handcuffed) the prosecutor said: "The prosecution says what they say in these interviews are lies, they are lying in order to conceal the truth of the situation, and it is not as they indicated in their interviews ...".

The prosecutor dealt extensively with the question of motive and of the threats and other behaviour of the applicant towards Jewell.

The prosecutor addressed two related issues. First, whether the applicant's intention was merely to scare Jewell and, secondly, whether Jewell was dead or was expected to be soon dead when the applicant left him in the forest. The prosecutor made much of the apparent internal inconsistencies in the accounts given by the applicant to police and of the improbabilities of the account being true when considered against the background of the admitted behaviour of the applicant.

In addition to commenting on the suggested lies told in the record of interview the prosecutor also made reference to other post-event conduct. He noted that in the interview the applicant said that when he returned to the scene in the forest on the following day his main concern was whether Jewell was still alive and that is why he went there, and he pointed out that when asked by the police why then he did not leave the car to check Jewell he answered that Watson told him not to get out of the car "just in case he was dead, because I've never seen a dead body before". The prosecutor suggested that these and other statements in the interview were "amazingly self-contradictory in terms of the version he gives. The reason is, the prosecution says to you, that he is simply lying during the course of these answers. He knew he was dead."

Similarly, the Crown emphasised the following matters: the applicant's conduct in asking Nedic to provide an alibi to him, and in asking Nedic to secrete the bag which contained the gun and other items; the fact that no-one was notified that Jewell could be found in the forest; the statement made to the police that he had been with Nedic all day; his expression of surprise, when first interviewed by police, about the car having been found burnt; the applicant suggesting that that was the first he had heard of the car being burnt; the fact that he had obtained the petrol at the service station only, so he said in his interview, because his car had run out of petrol. That was "just another lie".

The prosecutor suggested[11] that they had taken Jewell's car from the house in order to make it appear that he had just "shot through". Similarly, taking his phone and wallet had that objective. It was intended that he would be regarded as merely a missing person.

In the defence final address counsel said of the allegations that the applicant was lying, that people lie for all sorts of reasons, whether out of panic or because the person knows he is in trouble, and that there might be all sorts of reasons for lying apart from the person believing that he is a murderer. As to the prosecutor's "constant reference to lying" he asked "What are you to make of that?". He added "That goes, ladies and gentlemen, and can go to a person's credit, it does not mean that a person is in this case a murderer. For there are all sorts of other reasons".[12] Counsel agreed that the applicant had lied; indeed, had "lied all day". He submitted to the jury that it was consistent with him doing so because it was an accident, an event which had gone wrong but without there being an intention to kill.

At the end of the day, when counsel had not completed his address, there was a lengthy discussion between counsel and the judge as to whether a direction was required as to lies told in consciousness of guilt. His Honour asked counsel for the applicant whether he wanted a direction in terms of Edwards v. The Queen[13]. The judge said he did not consider that the prosecutor had treated lies for the purpose of establishing consciousness of guilt. Counsel for the applicant said that the prosecutor had come close to doing so, by saying that they had lied to avoid responsibility for what they had done. His Honour thought that an Edwards direction might be disadvantageous to the applicant, but invited comment. Counsel asked for the opportunity to think about it overnight. The prosecutor said he had simply used lies for the purpose of attacking credit and the judge said that was how he understood it.

On the following day, after further discussion, his Honour asked counsel whether an Edwards direction or a direction in terms of Zoneff v. The Queen[14] was required. His Honour read out the direction he had in mind to give and defence counsel agreed that that direction was what he required. Counsel then resumed his address to the jury and later, in accordance with what had then been discussed and agreed, his Honour gave the following direction:

"Okay. The next issue is the question of lies, and you will remember that was raised yesterday. The Crown prosecutor argued that the accused men both told a number of lies. That is part of his case. He argued that, on the real issues, you should not believe them. You will make up your own minds about whether any particular accused was telling lies on any particular occasion. It is for you to decide what significance those lies have in relation to the issues in the case. But I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt. The question of lies in this case related to the issues in the case and the way the Crown prosecutor said you should approach those issues."

It is now submitted that a full Edwards direction should have been given, bringing the weight of judicial authority to the issue and identifying those other reasons for lying and for post-offence conduct apart from guilt of murder which needed to be considered. As may be seen, this is yet another instance of a complaint being made on appeal that an Edwards direction should have been given at trial when trial counsel, fully seized of the issue and given the opportunity to request an Edwards direction, expressly declined the opportunity. The reason for not seeking such a direction was obvious, because it would be harmful to the case of the accused at trial to have emphasis placed on lies having been told in consciousness of guilt, or the possibility thereof. That calculated forensic decision having been made at trial by experienced counsel, two years later new counsel argued that an Edwards direction had been required; that a miscarriage of justice occurred and a re-trial should be ordered.

In my view, the question of lies in this case was raised solely for the purpose of attacking credibility and not for the purpose of establishing guilt by way of an implied admission, by conduct in lying or engaging in the other identified post-offence conduct. This was not a case where an Edwards direction was necessary or appropriate. In this case, as in R. v. Ibrahim[15] and R. v. Shiers[16] there was an abundance of circumstantial and direct evidence from which the jury would be entitled to infer that the purpose of kidnapping Jewell was to kill him rather than merely to scare him and that whatever may have been the precise cause of death it was caused by an act or omission of the applicant and Watson, acting in concert, performed on the applicant's part, with murderous intention. Just as in Ibrahim and Shiers the only evidence which was capable of supporting an alternative innocent hypothesis was that advanced by the applicant, in his final record of interview. If his account was discredited and the jury regarded it unworthy of being given weight then, having regard to the admissions contained in his interview, they were bound to convict the applicant of murder.

The relevant question is whether in this case there was a real risk that the jury would apply impermissible reasoning in considering the lies and other post-event conduct which the prosecutor identified in support of the Crown case[17]. The impermissible reasoning would be to conclude - without having regard to and excluding any reasonable alternative hypothesis - that the conduct of the applicant in telling lies or conducting himself after the events in the ways identified by the prosecutor amounted to an admission of guilt of murder. The full Edwards direction[18] would require the trial judge to precisely identify each lie (or aspect of post-offence conduct) said to constitute an item of consciousness of guilt, to then direct the jury that it could only be taken into account if they were satisfied that it was a lie and, if so, that its telling betrayed knowledge of some aspect of the offence and a fear that if he told the truth he would be implicated in the offence, together with a warning that they should not reason that just because a person told a lie it followed that he was guilty of the offence and, finally (with the full weight of judicial authority), spelling out the alternative explanations for such conduct, which explanations would have to be excluded before the jury could use the lie (or conduct) as an admission of guilt.

Such a direction gives great emphasis to lies and post-event conduct. Although the jury could not be told by the judge that proof that a lie was told in consciousness of guilt (or conduct was engaged in for that reason) would amount to a finding of guilt,[19] of itself, defence counsel would be well aware of the impact of such a finding on the prospects of acquittal.

Where the post event conduct and/or lies are being relied on by the prosecution as merely one part of a body of circumstantial evidence leading to a conclusion of guilt rather than as capable in themselves of proving guilt because they constitute admissions of guilt then an Edwards direction would not be required[20]. However, whatever may have been the intention of the prosecutor in identifying lies and other post-event conduct, the question is whether there was a real danger of impermissible use by the jury in their process of reasoning with respect to such conduct, towards a verdict of guilt of murder. If that danger existed then an Edwards direction would be required.[21]

In assessing whether such a danger had existed, the trial judge and, now, this Court, needs to consider how the material was used by the prosecutor and - whatever the prosecutor's intention may have been - how the jury might have understood they could use that material in their evaluation of the evidence. This evaluation requires the court to make an assessment of the totality of the case. References in the prosecutor's address to lies or other conduct can not be read in isolation from the totality of the addresses of the prosecutor and defence counsel, and so, too, the judge's charge must be considered as a whole. Was this a case which, in all the circumstances, required the judge to give an Edwards warning with the full weight of judicial office? Neither the prosecutor nor defence counsel for either accused thought so at the time. Nor, after carefully considering the matter, did the judge consider it appropriate.

In this case at no time was it suggested that any lie, nor any item of post-offence conduct, amounted to an admission of guilt of murder. However, the fact that the prosecutor did not use the words "consciousness of guilt" would not determine the question, which is an objective one and which depends on an assessment whether the jury might fairly have understood that any lie or post-offence conduct was being relied on not merely as part of the totality of evidence pointing to guilt but as proof of guilt in itself[22].

Use of words like "avoiding responsibility", or "trying to lessen their roles", as explanations for the telling of a lie might, of course, imply an awareness of guilt and a false denial of guilt, but such words when used by the prosecutor were applied in the context of a broad attack on the credibility of the account advanced to police by the applicant. It would follow, of course, that if his account was not credible and the jury were satisfied of his guilt then he had told deliberate lies in a consciousness of guilt, but the prosecutor was not, in my opinion, seeking to prove guilt by proof of any individual lie (or by reference to any item of post-offence conduct), but by demonstrating that the account proffered by the applicant, insofar as it was exculpatory, was unworthy of credit, and what then was left was the damning evidence of the objective facts and his admissions in the records of interview.

The alternative explanation for the telling of lies was clearly placed before the jury, albeit, not with the weight of authority of the trial judge. This was not a case, however, where a direction of the kind required in Edwards was necessary or appropriate, in my opinion. As to post-event conduct, generally, there is nothing in the circumstances of this case which created a particular danger that the jury might misuse the evidence in determining that the applicant had a murderous intention. In that regard this case is clearly distinguishable from R. v. Nguyen[23] and from R. v. Chang[24], upon which Ms Dixon placed some reliance.

The test as stated by McHugh, J. and Gummow, J. in Dhanhoa[25] was that to succeed on appeal the applicant must show a reasonable possibility that the jury convicted him of murder because they took any lies (and, I add, other post-offence conduct) as evidence of a consciousness of guilt and as proof of guilt without having regard and eliminating the alternative explanations which would have been placed before them by an Edwards direction. In my view there is no reasonable possibility that failure to give the jury a full Edwards direction may have affected the verdict in this case.[26]

"The joint trial of the applicant with Watson resulted in a miscarriage of justice as a result of the Crown's reliance in its case against the applicant on a version of events posited by the co-accused, Watson, in his record of the interview, in circumstances where there was a paucity of independent evidence supportive of that hypothesis and where the exact cause of death was unable to be ascertained."

The complaint raised by ground 6 is not that a joint trial should not have been permitted by the judge: no application for separate trial was made by counsel for the applicant and it is not argued that one ought to have been made, and should have been granted. Ms Dixon submitted, however, that this was an instance similar to that which arose in R. v. Demirok[27] where the decision to hold a joint trial, whilst correct when made, led to a miscarriage of justice by virtue of events which occurred in the course of the trial.

In Demirok the Full Court agreed that a miscarriage of justice occurred when one examined the circumstances of the trial as the evidence unfolded.[28] In Demirok the appellant was charged with murder in a joint trial with his wife, who was not charged with murder but with wounding the wife of the deceased in that case. The appellant was also charged with that wounding count. In his account to the police Demirok denied any knowledge of the offences and, in particular, denied that he had been present at the flat where the offences occurred. He claimed to have been elsewhere. In her final of three statements to police Demirok's wife admitted being present with her husband at the flat and the discrepancy between her account and that of her husband was described by the Court as having "devastatingly implicated Demirok in the crimes".

The particular turn of events in Demirok's trial which led to the miscarriage of justice was the fact that his wife made an unsworn statement in which she disavowed the third statement which she had made to the police and instead reverted to the version of events contained in two earlier statements, both of which supported her husband's account. In her third statement, in addition to admitting being present with her husband at the murder scene she had also provided some additional evidence of dealings with a taxi driver, which was consistent with the evidence given by a taxi driver who was called by the Crown. He said that he had picked up a man and a woman near the murder scene, and he had made a tentative identification of the appellant. The Court held[29] that although the applicant's wife disavowed her third statement in her unsworn statement in court that may simply have led the jury to regard her as a liar, in league with her husband. If they so concluded it would be by virtue of evidence either in her statement to police or her unsworn evidence, all of which was inadmissible against her husband. The Court held that notwithstanding the fact that the judge gave correct rulings as to the use which the jury could make of the evidence this was an instance where "the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial".[30]

Ms Dixon also relied on R. v. Jones and Waghorn[31]. In that case two accused were jointly presented on a count of murder. In his statement Waghorn denied any involvement in the killing but Jones made admissions and implicated Waghorn. In the course of his statement Jones suggested that Waghorn had a motive for the killing and described Waghorn as a professional criminal with a disposition to violence and murder. Admissions contained in Jones's statement also supported evidence given by a Crown witness. Waghorn's appeal was allowed, the Court concluding that the damning prejudicial reflections made against Waghorn by Jones, although not admissible against Waghorn, were "most likely to have influenced the jury against Waghorn"[32]. Smith, J. noted that quite different defences were involved for the two accused, although in both cases causation was an issue. Smith, J. concluded[33] that the case against Jones, being a strong one both as to causation and concert, "it would have been very difficult, if not impossible, for the jury to then consider afresh the case against Waghorn on those issues". His Honour concluded that Waghorn was likely to have been unfairly prejudiced by the evidence of his disposition to violence contained in Jones's statement.

Smith, J. noted that the prejudicial aspects of the inadmissible evidence against Waghorn were not the subject of specific warnings to the jury, it having been concluded that to do so would merely have highlighted them. His Honour noted[34] that the Full Court in Demirok had said[35] that in that case appropriate directions had been given to the jury that the evidence of Demirok's wife contained in her statements was not admissible against him, and that the Full Court had said as to that: "In almost all situations such directions would prevent the arising of a doubt that miscarriage of justice had or might have occurred". The Full Court, however, concluded that there were particular circumstances in Demirok's case which meant that doubt about there being a miscarriage of justice could not be eliminated. Smith, J. concluded that the same applied with respect to Waghorn, especially given the fact that with respect to a number of areas of prejudice no direction was given and none was likely to have been effective had it been given.

Ms Dixon submitted that as this trial unfolded a number of factors combined to create a prejudice to the applicant which could not be removed by the directions which were given by the judge. These developments were the following:

1. The emphasis and frequency with which the prosecutor contrasted the accounts given to police by the two accused.

2. The prosecutor advanced the hypothesis to the jury that the death was caused by the excessive taping over the mouth and nose of Jewell by the applicant. The cause of death was not known and that explanation, it was submitted, came from the account given to police by Watson in his record of interview.

3. Evidence was led of a covert tape-recording of a telephone conversation which Ms Mackay held with Watson, during the course of which both of them described the applicant as "psycho".

4. A video tape of the record of interview of Watson contained a demonstration by Watson of the manner in which he said the applicant had taped over the mouth and nose of Jewell.

5. In his account to police Watson described Murphy as being "gleeful" when burning the motor vehicle with Jewell inside it.

In his third record of interview with police on 21 July 2000 Murphy offered his final version of events, in which he denied ever intending to kill Jewell. In contrast to that account given by Murphy, Watson, in his interview on 22 July 2000, told police that he had become involved after speaking to the applicant when they worked together as bouncers at a nightclub. The applicant had told him that he wanted to commit suicide and had asked him to obtain a gun. Watson said he had obtained a gun but had bent the hammers back so that it would not fire properly. The applicant had told him that he was upset about breaking up with his girlfriend. He was crying. He said he was going to go around and kill the other man, before killing himself. Watson said he telephoned Mackay and told her that the applicant was distraught and was talking about killing her boyfriend. He told her that the applicant had a shotgun. The applicant had asked him to find someone who could kill Jewell and he said he had tried to fob him off. Later the applicant rang him, full of remorse, saying that he had been to the doctor. He was on medication and was now okay. However, he thereafter kept harassing him, asking Watson to come around with him to beat up Jewell. Watson described the applicant as a bit of a loose cannon, and a bit of a nut. He said that the applicant reverted to talking about wanting to kill the other man then suggested a plan that they would together grab the man, make him think it was a robbery, take him somewhere, leave him in the back of the car and scare him. On the evening of the abduction Watson drove his Honda and picked up the applicant. The applicant had a bag with him and a big smile on his face. When they got to the house the applicant said that they were just going to scare Jewell.

They broke in through the back door and Watson described the man being handcuffed and removed, and his wallet and mobile phone being taken, together with his car. Watson said he did not know why the number plates were both taken off the car. He said that when he later used the credit card to make a withdrawal it was to give the impression that Jewell was a missing person, and so that people would think he was over that side of town. That would give Jewell time to walk back from where the car had been dumped. The next morning the applicant said to him that they should go up and check the scene. Watson picked up the applicant, who was waiting with a four litre jerrycan, and it was the applicant who said "let's go and torch the car. We will see if he is not there, we'll torch the car".

Watson described the two of them arriving at the scene and approaching Jewell's car and when they opened the boot he could see that Jewell was dead. Watson asked the applicant "What did you do to him?" The applicant said "Nothing. All I did was just tape him up and stick him in the back just like I said". The applicant then got out the jerrycan, poured petrol on the car and on the seat and set fire to it. Watson said that when he had looked at the face of Jewell "His face was just completely covered in tape. There was black masking tape, no breathing holes, no eye holes, no mouth holes, no nothing and his face was just completely covered in masking tape and ... in black electrical tape ...". Watson told police that the applicant said "I didn't know that I did that. I didn't know I covered his nose." The applicant said to Watson that that was not what he wanted to happen. Watson added, however: "But when he returned back to the car with the jerrycan, he was smiling from ear to ear. He had a look of glee like he'd done so well for himself, on his face. He just had this evil smile on his face and I was - I just started to panic." Watson said that he had been contacted a couple of times since that day by the applicant who was just elated, like a weight had been lifted off his shoulders.

In the course of the videotaped interview Watson described to the police what he had seen the applicant doing in applying tape to the face of Jewell. Watson said so far as he knew the applicant was merely taping his mouth so that he could not yell out and they could get away from his house. Watson said:

"Well, there wasn't much tape left. There - there was only a little bit of tape left, `cause he used so much tape on his mouth, he'd actually physically taped from here down and then from there up, so there was - there was stuff all tape left. So, I didn't understand why he was doing it because the guy's eyes were already covered and the guy couldn't speak anyway. So I just thought he was being doubly careful, he was just going to tape him up and then get out of there. I just wanted to leave. I wanted to get out of there, because it means that I could go home, forget about having bloody this with Jason and then just leave it at that and then not speak to the guy ever again, `cause it got too - it was just out of control."

They then left the scene and discarded the wallet, mobile phone and registration plates and that afternoon he used the ATM card. Watson did that because he realised it had been his shotgun and his car and people might connect him to it and if he used the ATM card it would look as though Jewell was still about. That would give Watson a day to get his thoughts together. He said he knew that Jewell was dead, upon returning to the scene, because that was when he saw the black masking tape had covered his entire face.

The references by Watson to the depression and suicidal ideation of Murphy did not stand alone. Other evidence was called during the trial, which was admissible against Murphy, to confirm how upset he had been by the break-up of the relationship.

In his final address the prosecutor, not surprisingly, dealt extensively with the contents of the records of interview of the two accused. He said that as to the proposition that Jewell was alive when they left the scene on the first occasion the jury only had their words for it. Counsel stressed, as he did on several occasions, that he would deal separately with the records of interview, "they being only evidence against the individual who makes the comments in it". He dealt first with Murphy's statements in the interview and then turned to Watson's interview, prefacing his remarks by saying that it was the prosecution contention that what both of them said in their interviews contained lies. He submitted that the jury should conclude that when they left the scene on the first day they either knew that the deceased was dead or they expected him to be, because of something they had done to him. He referred to internal inconsistencies within the record of interview of Murphy.

The prosecutor submitted that they should conclude that both men intended to kill Jewell. He added:

"And what you do know in so far as their admissions are concerned and what they say to the police, that he was gagged with tape, and you might think extensively in so far as their actions and their admissions are concerned, he was handcuffed, he was left with only boxer shorts and a T-shirt in the middle of nowhere in a place that was concealed, in those circumstances you might well ask yourself how, firstly, he was supposed to escape from the vehicle, for a start, allowing for what they say in their records of interview and it is the Crown's submission to you, to assert as they did in their interviews that they expected him to escape, would be a nonsense ...".

The prosecutor submitted that the position in which Jewell's body was found in the car supported the proposition that he was dead when they left on the first occasion.

The prosecutor referred to submissions by counsel for Watson that Jewell died because Murphy had bound his whole face so that he could not breathe. The defence for Watson was that that action was outside the scope of their agreement and that Watson could not be held responsible for the death being caused by that action. In his charge his Honour reminded the jury that the prosecutor had played that part of Watson's record of interview where he described the taping being done. His Honour said that the prosecution case was that that part of the interview showed that Watson well understood the way in which the taping took place.

Counsel for the applicant had submitted to the jury that although the cause of death was not known "he probably died of asphyxia".[36] In summarising the address of counsel for the applicant the judge said that counsel had accepted that the applicant was probably guilty of manslaughter but that he was not guilty of murder.

Ms Dixon did not contend that full and appropriate directions were not given by his Honour in his charge with respect to the use the jury could make of the record of interview of Watson. His Honour charged the jury:

"It is absolutely essential that you take the greatest possible care to ensure that a procedure that has been adopted as a matter of convenience does not usurp, or does not result in any injustice. Each of the accused persons and the Crown are entitled to have a separate consideration of the case made against each of the accused in relation to these offences."

His Honour then stressed that it was the evidence admissible against the particular accused which was to be used against that accused. His Honour in the course of the trial reminded the jury of this on a number of occasions[37] and so too did the prosecutor.

As to the tape-recorded conversation between Mackay and Watson his Honour gave an express direction at the time when that evidence was led that it was not admissible against Murphy.

At the conclusion of the charge counsel for the applicant sought a further direction with respect to the record of interview of Watson. He submitted that his Honour ought "yet again" stress to the jury that the material in Watson's interview was only evidence against Watson. His Honour said he had done that, and counsel agreed. The prosecutor said the point had been stressed continuously throughout the trial not just in the charge. Counsel for Watson noted in particular the playing to the jury of Watson's videotape, where he described how the tape had been placed on the mouth and nose of the victim by Murphy. In response, his Honour gave a further direction to the jury warning them as to the use of the interviews in terms "as I have indicated to you time and again". He expressly warned the jury that the videotaped evidence of the winding of the tape which occurred in Watson's interview was not evidence against Murphy. Save for that point no other exception was taken.

In my opinion, there was no significant danger of the jury ignoring the directions as to the use of the material in Watson's record of interview. The prosecutor in his addresses and the judge in his charge carefully separated the two cases. Although it has been said that the prosecutor adopted the suggestion contained in Watson's statement that Jewell must have died because of the tape that was placed over his face by Murphy that possibility did not rely on the assertion in Watson's statement. Murphy himself had conceded that he had taped the face and although he claimed to have left an opening for him to breathe he was not disputing that, in fact (whether or not he intended it), somehow the taping may have been the cause of death. Indeed, his own counsel adopted that as the most likely explanation. The issue was whether he intended to cause death in that way. Not even Watson said that was the case. At its highest Watson's statement to the police suggested that the applicant had so comprehensively taped the face of Jewell that it must have caused the death. Whilst his own inference might also support an inference as to the applicant's intention, Watson did not make any assertion as to that.

The case against Murphy, albeit largely circumstantial, was very strong, in that his actions pointed powerfully to the conclusion that it was never intended that Jewell would leave the forest alive. If the jury accepted that conclusion then the precise cause of death was not an essential element which had to be established by the Crown. Unlike the situation in Demirok and Jones and Waghorn the circumstances of this case were not such that I consider there was a real risk of a miscarriage of justice having been caused during the course of the trial by virtue of the fact that Watson's record of interview was before the jury. The jury must be taken to have heeded the trial judge's careful and repeated directions.

"The learned trial judge erred in refusing to discharge the jury after the Crown opening in which the prosecutor compared and contrasted the competing versions given by the accused in their records of interview."

In the course of his opening address the prosecutor referred to the two records of interview but in so doing prefaced his remarks by warning the jury that what was contained in each interview was admissible only against the person who made it. The ground of appeal complains about a passage in which the prosecutor observed to the jury that -

"There are substantial variations between the two stories that these men told the police, and you will come to the conclusion these men, who had hitherto lied to the police during the course of the statements they had given to the police, up to their records of interview, were not telling the whole truth during the course of the records of interview but, as I indicated to you, you will hear them fully during the course of the trial."

In a ruling upon applications made by counsel for both accused that the jury be discharged because of these remarks his Honour said:

"Whilst it may be unfortunate that the Crown prosecutor chose to speak about the two interviews in the same passage, a fair reading of the transcript does not suggest that he was inviting the jury to draw inferences that the accused were lying by contrasting their answers. I accept that the prosecutor did not intend to encourage that line of reasoning."

After considering relevant authorities his Honour said he was satisfied that what had occurred would have minimal impact on the trial and that in the context of the whole of the prosecutor's opening there was at best a possible ambiguity and that an appropriate judicial direction made at the end of the opening would overcome any possible prejudice.

When he resumed his address the prosecutor himself reminded the jury that the evidence of the record of interviews was admissible only against their maker. His Honour[38] gave the jury what he described to counsel as a strong direction, as to the need to conduct the case by way of separate trials, having regard to the evidence relevant to each, and to use only admissible evidence. The record of interview, he said, was not evidence against the person other than the one who made it. His Honour told the jury that he would repeat that at various stages throughout the trial and said that it was a matter of particular importance.

In the circumstances, any possible prejudice to the applicant by these short remarks (and I am not persuaded that they had much prejudicial capacity, in any event) would have been completely removed by his Honour's direction. There was not a high degree of necessity for a discharge of the jury as a result of the prosecutor's opening address[39] and the verdict has not been constituted a miscarriage by virtue of what occurred.

This proposed ground of appeal is not made out.

"The aggregation of errors has resulted in a miscarriage of justice."

"The verdict of the jury was unsafe and unsatisfactory."

These two grounds may be considered together and no separate argument was addressed on them, as the errors said to have been contained and identified in the other grounds were particulars of these grounds.

Although circumstantial, this was a powerful case against Murphy and the jury were entitled to draw the inference of murderous intention. Murphy did not give evidence and the record of interview on which his defence relied contained many inherently improbable assertions. I am not persuaded that any of the matters raised in the proposed grounds of appeal, taken together, disclose that the verdict on the murder count constituted a miscarriage of justice[40]. Likewise, I do not consider that the verdict was unsafe or unsatisfactory. It was plainly open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt on the evidence admissible against him[41].

The applicant appealed on one ground, that the sentence was manifestly excessive, and four additional grounds were sought to be added upon the hearing of the appeal. Those grounds complained as follows:

"2. The total effective sentence and order for cumulation infringed the principle of totality. 3. The learned trial judge placed too much weight on the aspects of concealment as aggravating the offences. 4. The learned trial judge gave insufficient weight to the applicant's previous good character and to the extent to which the applicant's prior unresolved relationship with Ms Mackay motivated the offences. 5. The learned trial judge gave insufficient weight to the applicant's prospects of rehabilitation."

The sentences imposed on the applicant were as follows:

Count 1 Aggravated burglary 6 years' imprisonment, one year to be served cumulatively with count 5

Count 2 Kidnapping 8 years' imprisonment, one year to be served cumulatively with count 5

Count 4 Theft of a motor vehicle Licence to drive a motor vehicle is cancelled for one year and disqualified from driving for 12 months

Having regard to the orders of cumulation made on counts 1 and 2 the total effective sentence was a term of 22 years' imprisonment. His Honour ordered that the applicant serve 16 years before being eligible for parole and declared pre-sentence detention of 420 days.

In his sentencing remarks his Honour identified the following features of aggravation of the offence:

1. An almost arrogant disregard of the rights of Ms Mackay and Mr Jewell, the applicant being a calculating individual who was prepared to let nothing stand in the way of attaining his desires;

3. It was a terrifying attack on an innocent man who had been asleep in his home;

4. The kidnapping, which involved handcuffing, blindfolding and incarceration in the boot of a car, would have been a terrifying and escalating experience;

5. The false imprisonment in the rear of the car would have further escalated his terror.

6. The circumstances in which death took place, due to the remoteness of the location and the steps taken to set up an alibi, showed that the applicant sought to maximise the opportunity to avoid detection;

7. His endeavour to conceal the car and the body by burning made it impossible to ascertain the cause of death and would add to the anxiety of family and friends.

8. The crimes were accompanied by extraordinary callousness and lack of remorse.

At the time of sentencing the applicant was 31 years of age and had not previously been in trouble with the law. He had left school at about the age of 14 and been in work as a farm labourer and service station attendant and more recently as a crowd controller. His Honour had a report from a forensic psychologist, Ms Elizabeth Warren, which he accepted as placing the applicant on the "cusp of the borderline low average classification of formal intelligence". He had been suffering depression for many years and had clear indication of personality disorder, which Ms Warren concluded, and his Honour accepted, would have a natural progression or a gradual and natural attenuation over time, with increasing stability of functioning often beginning in the third and fourth decades of life.

His Honour found that the applicant was not without prospects of rehabilitation, over time. He concluded that there was no need to have regard to factors of the protection of the public or specific deterrence. His Honour concluded that some measure of cumulation was required although being careful to ensure that principles of totality were not offended.

Ms Dixon submitted that all of the offences really arose out of one incident and cumulation was not appropriate in those circumstances.

Whilst his Honour was entitled to have regard to the fact of incineration of the body as an aggravating factor Ms Dixon submitted that it was not an incidence of deliberate defilement of a kind portraying contempt but merely fell into the category of an attempt at concealment of a crime, which is a common feature of such serious crimes.[42] In my view, this was not a factor which his Honour overstated. It was relevant and the sentence does not portray that either it or other factors overwhelmed other sentencing considerations.

Although Ms Dixon contended that the penalties imposed on the other offences place them all at the high end of the range for each crime in my view his Honour was entitled to conclude that these were all very serious instances of each offence.

It was a severe sentence but it was a calculated crime and whilst not in the level of a contract killing, but rather more akin to a crime of passion, it cannot be said in my view that a sentence of 20 years for the murder was manifestly excessive. It was a planned killing, carried out in ruthless fashion, and involved a terrifying kidnapping and protracted false imprisonment. Some degree of cumulation was appropriate and a very modest amount of cumulation was ordered. In my opinion, the approach adopted by the learned sentencing judge was in accordance with principle in that neither inappropriate individual sentences were imposed nor did the total effective sentence which was reached offend the principle of totality, having regard to the gravity of the offences.[43]

In my opinion none of the complaints as to the sentence imposed have been made out, and the application for leave to appeal against sentence ought be dismissed.

In my view the applications for leave to amend the grounds of appeal should be allowed and the applications for leave to appeal against conviction and sentence should be dismissed.

[1] That omission is not fatal to the applicant's prospect of success on this ground of appeal (or any other ground where exception was not taken), but as a general rule failure to take exception would not lead to a re-trial unless it was demonstrated that notwithstanding the omission it was in the interests of justice to order a re-trial: see R. v. Clarke & Johnstone [1986] VicRp 64; [1986] V.R. 643, at 662.

[2] Shepherd v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573, at 579, per Dawson, J.; R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123, at [47], per Callaway, J.A. and at [54], per Batt, J.A.; R. v. Koeleman [2000] VSCA 141; (2000) 2 V.R. 20, at [26]-[28], per Tadgell, J.A.

[3] R. v. Kotzmann, at [28], [45], per Callaway, J.A.; R. v. Koeleman, at [28], per Tadgell, J.A.

[4] Shepherd v. The Queen, at 579, 581, 585, per Dawson, J.

[5] R. v. Best [1998] 4 V.R. 603, at 619, per Callaway, J.A.

[6] RPS v. The Queen [2000] HCA 3; (2000) 199 C.L.R. 620, at [41]-[42].

[7] See Domican v. The Queen [1992] HCA 13; (1992) 173 C.L.R. 555, at 560-561.

[8] RPS v. The Queen, at [41]-[42].

[17] Dhanhoa v. The Queen [2003] HCA 40; (2003) 77 ALJR 1433, at [34] per Gleeson, C.J. and Hayne, J;

[20] See Ibrahim, at [72]; R. v. Chang [2003] VSCA 149, at [18]-[20].

[21] Dhanhoa v. The Queen [2003] HCA 40; (2003) 77 A.L.J.R. 1433 at [34] per Gleeson, C.J. and Hayne, J.

[22] See R. v. Franklin [2001] VSCA 79; (2001) 3 V.R. 9 at 1123, per Ormiston, J.A.

[24] [2003] VSCA 149. As to the circumstances of Nguyen and Chang I refer to my analyses in Ibrahim at [68] ff. and [74] ff.

[39] R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 966; see, too, Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427, at 440-442.

[40] See R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123, at [114] per Batt, J.A.

[42] See D.P.P. v. England [1999] VSCA 95; [1999] 2 V.R. 258.

[43] See R. v. Lomax [1998] 1 V.R. 551 at 562-563, per Ormiston, J.A.

At a glance

Court

Decision date

Before

Source

Judgment (179 paragraphs)

Parties

Cases Cited (1)