R v Roughan & Jones

SUPREME COURT OF QUEENSLAND

CITATION: R v Roughan & Jones [2007] QCA 443

PARTIES: R v ROUGHAN, James Patrick / (appellant) / R v JONES, Christopher Clark / (appellant)

FILE NO/S: CA No 87 of 2007 / CA No 105 of 2007 / SC No 774 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 14 December 2007

DELIVERED AT: Brisbane

HEARING DATE: 22 November 2007

JUDGES: Keane and Muir JJA and McMurdo J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: In CA No 87 of 2007 (in relation to Roughan): 1. Appeal allowed2. Conviction set aside3. New trial ordered In CA No 105 of 2007 (in relation to Jones): Appeal dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where appellants pleaded not guilty to murder and guilty to interfering with a corpse – where appellants convicted of murder – whether jury could have been satisfied beyond reasonable doubt that deceased was alive when first appellant was said to have stabbed and decapitated deceased / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS – where first appellant was refused separate trial – whether joint trial made disentanglement of case against first appellant from stronger case against second appellant unduly difficult – whether evidence that first appellant had been charged with similar offence, admitted in second appellant's case, unfairly prejudiced first appellant's prospects of acquittal – whether separate trials should have been ordered to ensure fair trial of first appellant / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS – where second appellant prevented from exploring detail of evidence that first appellant had been charged with similar offence – whether second appellant thereby denied chance of establishing that first appellant more likely to have murdered deceased – whether separate trials should have been ordered to ensure fair trial of second appellant / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where witnesses prosecuted as accessories and received wholly suspended sentences conditioned upon undertaking to give evidence against appellants – whether evidence of witnesses should have been excluded under s 130 Evidence Act 1977 (Qld) / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – OTHER MATTERS – whether evidence of second appellant's bad character should have been excluded – whether jury were properly directed on use of that evidence – whether evidence of first appellant's violent music collection properly excluded – whether second appellant denied fair chance of acquittal / Criminal Code Act 1899 (Qld), s 668E(1A) / Evidence Act 1977 (Qld), s 15(2), s 130 / Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, cited / Hoch v The Queen (1988) 165 CLR 292, cited / Knight v Jones; ex parte Jones [1981] Qd R 85, cited / Lowery v The Queen [1974] AC 85, cited / R v Davidson [2000] QCA 39; CA No 369 of 1999, 28 July 2000, cited / R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239, applied / R v Livingstone [1987] 1 Qd R 38, cited / R v Mason & Priestley, unreported, Williams J, CA No 142 and 188 of 1985, 22 November 1985, applied / R v Piller & Ors (1995) 86 A Crim R 249, cited / R v Randall (2004) 1 Cr App R 26, cited / Winning v R [2002] WASCA 44, applied

COUNSEL: R A East for the appellant Roughan / A M Hoare for the appellant Jones / D R Mackenzie for the respondent

SOLICITORS: Legal Aid Queensland for the appellant Roughan / Ryan & Bosscher for the appellant Jones / Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA: On 1 April 2005 the decapitated body of Morgan Jay Shepherd, a 17 year old itinerant person ("the deceased"), was found in a shallow grave near Dayboro. The head of the deceased was located nearby. The deceased was last seen alive on the evening of Tuesday 29 March 2005 in company with the appellants, James Roughan and Christopher Jones, at the Sandgate home of Roughan.

2. Each of the appellants was charged with the murder of the deceased, and pleaded not guilty to that charge. Each pleaded guilty to being an accessory after the fact to the unlawful killing of the deceased by the other and to interfering with a corpse. Neither of the appellants gave evidence at the trial.

3. Each of the appellants blamed the other for the death of the deceased. Each made out of court statements in which he asserted that the other assaulted the deceased and then obtained a knife and stabbed him in the neck.

4. The appellants were tried together. On 4 April 2007 each was found guilty of the murder of the deceased.

5. Each of the appellants challenges his conviction on a number of grounds which are variously expressed with a considerable degree of overlap between grounds. Not all of the grounds of appeal were pressed. It is convenient to consider the appeals by reference to the arguments advanced in this Court on behalf of the appellants. I shall discuss these arguments after first summarising the Crown case at trial and the course of proceedings below.

The Crown case at trial

6. The Crown case of murder against each of the appellants was that either or both of them had murdered the deceased, or that one of them had murdered the deceased and the other had enabled or aided the other in an attack upon the deceased, with the intent to cause him death or grievous bodily harm.¹

7. The evidence of Dr Milne, the pathologist called by the Crown, was that the deceased died of head and neck injuries and alcohol intoxication. There were 133 stab wounds on the body of the deceased: there were 51 wounds to the left leg, 68 to the right leg, 10 to the buttocks, three to the upper back and one to the abdomen. All of these wounds were superficial and non life threatening.

8. According to the pathologist, all of the leg wounds were, mercifully, post mortem. All of the wounds on the body could have been produced with a single knife, although the use of a second knife could not be excluded.

9. The head of the deceased showed signs of axe or tomahawk wounds to the eye sockets, behind the left ear, and the right upper neck. These wounds could have contributed to the death of the deceased. The jaw was fractured and showed signs of cutting wounds caused by a saw or a knife. One tooth was fractured and another was missing.

10. The missing tooth was found in Roughan's back yard. A tomahawk, a knife and two saws were located by police during a search of Roughan's residence. A saw was found at the burial site. The DNA of the deceased was found upon the tomahawk, the knife and the saws.

11. Because of the extent of decomposition which occurred before the post mortem examination, the pathologist was unable to say whether decapitation occurred before or after death. The pathologist could not exclude the possibility that death was caused by a single stab wound to the neck.

12. On the evening of 29 March 2005 the appellants and their friends, Isaac Murdoch and Christopher O'Brien, attended Redcliffe Hospital where Jones received medical attention for a stab wound to the hand. Murdoch said that both the appellants were heavily affected by alcohol. He drove them to and from the Redcliffe Hospital. Jones told medical staff that he was stabbed during a fight, and he told Murdoch and O'Brien in Roughan's presence that Roughan had accidentally stabbed Jones while they were mucking around.

13. On the morning of Wednesday 30 March 2005 the appellants told Murdoch that they wanted to borrow his car to move some furniture; he would only agree to let them use his car if he drove. Murdoch took the appellants and the deceased's body to Dayboro for burial. Murdoch said that he saw Jones and Roughan put a roll of carpet into the boot of his car; he did not see the body as it was being loaded into the boot. Jones directed him to drive into bushland at Dayboro. Jones and Roughan carried the roll of carpet into the bush: Murdoch was told to stay in the car. Roughan carried a plastic bag. When they returned to the car Jones told Murdoch that he was now an accessory to murder. He also told him who the deceased was. Murdoch then drove them home.

"INTERVIEWEE: The cunt is psycho.

…

[CONST PATA:] How long have you known James for?-- I met the first time when I moved to Sandgate. Ah – didn't really get a [indistinct], like just met him up at the pub when he was allowed to go up to the pub, and – 'cause he's not allowed to go – he's not allowed – he's not meant to be drinking; James.

James?-- Yeah.

Why's that?-- Um – he's got another Court matter or something.

Oh, okay?-- 'Cause he's on bail he had to sign in two days a week.

…

[CONST PATA:] Was there anything else that - about him that you believe lent weight to the fact that he would do it?-- yeah 'cause he's a psycho. He's done it – he's done some things like this before certainly, so––

He's done this before?-- Something like this, you know, yeah. He's up for charges already.

Okay?-- [Indistinct].

What, for stabbing someone?-- Mmm hmm.

And you were aware of that?—Yeah. And it was another one of his mates too."

28. After the appellants had been charged, and were being transported to prison together, their conversation was secretly recorded. Roughan accused Jones of passing the blame for the killing onto him. Roughan said that he would take responsibility for what he had done but Jones had not taken responsibility by blaming it all on him. Jones said to Roughan that it was Roughan who had cut the deceased's head off. The following passage is important:

"[ROUGHAN]… You remember that when you try to get to sleep at night. Know where your soul's going, cause it's not goin go visit your parents up in heaven when they're dead.

[JONES] (Incoherent).

[ROUGHAN] And they'll probably be dead by the time you get out. Which ever way you look at it mate, murder or helping me murder, which ever way you wanna look at it, you're still goin do a long time with me.

[JONES] Bloody oath I will be.

…

[ROUGHAN]I've got no one waiting for me at the end of the rainbow, so I've got nothin to lose.

[JONES]I do, a daughter.

[ROUGHAN]Yeah. So that's why you’re going to bullshit and cheat and sell your mate up the creek, fuck you. Should know what better next time, not to help you, you're a fucking loser.

[JONES]You're the fucking loser. You're the one that fuckin asked me in cunt.

[ROUGHAN]Alright, alright, like I said God knows, no one else knows, it was only you and I, but God knows.

[JONES]Yeah, but you narked me in.

…

[ROUGHAN]… Only God knows the real truth here Kris and you will be frying in hell with me.

…

[ROUGHAN] I believe in God that much, that I'm prepared, for what ever is to come, I must fuckin deserve it. You on the other hand you're not prepared, and you soul has no redemption."

29. The tape of the prison van conversation also contained statements by Roughan which suggested that he had a criminal record. He spoke familiarly of the prison and prison life, and of a lot of people in prison including the "angry boys". He also expressed his confidence that he would beat the other charges pending against him. Evidently the learned trial judge considered that the unexpurgated prison van conversation gave the jury an opportunity to understand the true nature of the relationship between Roughan and Jones.

The course of proceedings

30. On a pre-trial application under s 590AA of the Criminal Code Roughan sought a separate trial pursuant to s 597B of the Criminal Code. Jones did not join in this application. The basis for Roughan's application was the passage in the record of the interview which Jones gave to police in which he described Roughan as a "psycho", and said that he was in fear of Roughan, and that Roughan had "done some things like this before …" Roughan's application for separate trials was refused, principally on the footing that Jones' self-exculpatory out of court assertions would have little weight with the jury.

31. Two days before the trial Counsel for Jones also made an application for an order for separate trials. This application was based on the potential prejudicial effect of the prison van conversations and the evidence of Murdoch, O'Brien and Neuherz against Jones. This application was rejected by the learned trial judge.

32. Jones also applied to have the evidence of O'Brien and Neuherz excluded on the basis that at the committal hearing Neuherz had said in cross-examination that his statement to the police had been elicited by physical assaults and the threat that he would be charged with murder. He said that he was on drugs, was drinking and lacked sleep; and that his statement had been written by the police. He was sentenced as an accessory after the fact in respect of the murder of the deceased pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) on the basis of his undertaking to provide evidence in the prosecution of Jones and Roughan. It was argued for Jones that, in these circumstances, the jury could not be satisfied of the truth of Neuherz' evidence.²

33. O'Brien, too, had been sentenced pursuant to s 13A of the Penalties and Sentences Act. At the committal of Jones and Roughan, O'Brien changed his evidence from the statement he had provided to the police, but he was alerted to the prospect of being resentenced during cross-examination by Roughan, at which point he reaffirmed the truth of his s 13A statement. O'Brien said he was on drugs two days before the day of his original statement.

34. The application to exclude the evidence of Neuherz and O'Brien was rejected on the basis that the reliability of their evidence was a matter for the jury.

35. Jones' Counsel sought to lead from Detective Pata evidence of the nature of CDs found in Roughan's bedroom. Many of the CDs were concerned with violence and death. The learned trial judge refused to allow Jones' Counsel to explore these matters.

36. On the fourth day of the trial Counsel for Jones was permitted to cross-examine a police officer to confirm that Roughan had, indeed, been charged with having stabbed a mate with a knife. Counsel for Jones sought to go further in an attempt to elicit more details of the circumstances of the charge of attempted murder, but was not permitted to do so on the footing that these matters were irrelevant to the issues in the trial. Jones' Counsel made a further application for a separate trial. This application was refused.

Was the verdict against Roughan unsafe or unsatisfactory?

42. On behalf of Roughan it is said that the jury could not have been satisfied beyond reasonable doubt that the deceased was still alive when Roughan was said to have stabbed and decapitated him. It was said that there was no evidence admissible against Roughan that he had encouraged Jones by word or conduct to strike the fatal blow.

43. There could be no doubt that the deceased was brutally murdered. There was no suggestion that anyone other than the appellants was present when the deceased was killed. The knife injury to Jones' hand strongly suggests that at some stage, at least, Roughan was wielding a knife, and it was open to the jury to conclude from O'Brien's evidence of Jones' statements in Roughan's presence that Roughan had stabbed the deceased while Jones was holding him. That Jones needed to hold him might permit the inference that the deceased was still alive. More importantly, however, if the jury accepted Ms Hore's evidence as to how the deceased had been killed and O'Brien's evidence that Roughan appeared to accept Jones' statement that they had "killed someone by stabbing him", the jury could exclude the hypothesis that Roughan's involvement had been limited to stabbing and decapitating the body of the deceased only after he had been killed by Jones.

44. It was open to the jury to conclude that Roughan not only believed that he was responsible for the death of the deceased, but that his belief was not mistaken, even though the evidence did not permit a detailed understanding of Roughan's role in the sequence of events which culminated in the death of the deceased.

45. What is striking in the evidence of Murdoch, O'Brien and Neuherz of the course of the discussion of the death of the deceased between them and the appellants is that there was no suggestion by either of the appellants that the death of the deceased came as an unagreeable surprise to him, or that he made any protest about or attempt to prevent the other's assaults on the deceased, or that either of them had made any threat against the other to secure the other's co-operation in the actual assault on the deceased. It is also striking that, in conversations with Murdoch, O'Brien and Neuherz, neither of the appellants expressed any regret for the killing of the deceased.³ In the light of the evidence of Murdoch, Neuherz and (especially) O'Brien, and the involvement of the appellants in the concealment of the dismembered body of the deceased,⁴ the jury had an ample basis for the conclusion that each of the appellants participated in the acts which led to the death of the deceased and did so with the intention of causing him death or grievous bodily harm.

46. The reliability of the evidence of O'Brien, Murdoch and Neuherz was challenged at trial on the basis that they were accomplices in the disposal of the body of the deceased who had been given reduced sentences based on their promises of cooperation with the authorities in the prosecution of Roughan and Jones, and on the basis of variations in their evidence. It was, however, open to the jury to regard their evidence as reliable, especially in the light of the evidence of the prison van conversation between Roughan and Jones.

The separate trial issue

48. On Roughan's behalf it is argued that he suffered a miscarriage of justice by reason of the refusal of an order that he be tried separately from Jones. This argument was put broadly on two bases: first that the joint trial made the disentanglement of the case against Roughan from the stronger case against Jones an unduly difficult task, and, secondly that the evidence that Roughan had been charged with "stabbing a mate" admitted in Jones' case unfairly prejudiced Roughan's prospects of an acquittal.

49. In this Court in R v Davidson,⁵ de Jersey CJ and Davies JA said:

"Generally there are strong reasons of principle and public policy why joint offences should be tried jointly (Webb v R (1994) 181 CLR 41 at 88, 89, 56) and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials. (R v Harbach (1973) 6 SASR 427 at 432; R v Lewis and Baira CA No 252, No 253 and No 290 of 1996, 18 October 1996.)"

50. The "strong reasons" for a joint trial are strengthened rather than weakened where each of two accused deploy the "cut-throat" defence. In Ali v The Queen,⁶ Callinan and Heydon JJ, with whom Gleeson CJ agreed, said:

"Section 597B of the Criminal Code (Q) confers a discretion on the trial judge, at any time during the trial of two or more persons, as here, charged in the same indictment, that the persons charged be tried separately. The events leading up to the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected. Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately (R v Palmer [1969] 2 NSWR 13). A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged."

51. In support of the first aspect of the submission that the learned trial judge erred in her rejection of Roughan's applications for a separate trial, reference was made to the decision of Dowd J in R v Piller & Ors.⁷ In that case Dowd J concluded that the evidence against one accused was significantly different from the evidence against another accused so as to warrant a departure from the usual course of a joint trial.⁸ The indeterminate nature of the test of "significant difference" highlights the broad discretionary nature of the decision to be made, and explains why the exercise of the discretion is one with which an appellate court will interfere only in the case of manifest error.

52. Most of the significant evidence in this case was admissible against both of the appellants. The evidence which was inadmissible against one of the appellants but admissible against the other was in relatively short compass. And there is no reason for this Court not to proceed on the basis that the jury understood and followed the learned trial judge's directions in this regard.⁹ The first aspect of Roughan's submission must be rejected.

53. There is, however, more substance in the argument advanced for Roughan that his prospects of an acquittal were unfairly damaged by evidence introduced by Jones which was not admissible against Roughan, and by the directions given to the jury in relation to the use they might make of that evidence.

54. In R v Davidson,¹⁰ de Jersey CJ and Davies JA accepted that:

"there may be some cases in which it is appropriate to order separate trials, even in a case involving joint offences, where the evidence admissible against each accused is impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other, and … also that there may be cases in which prejudice may cause a jury even to ignore the directions of a trial judge …"

55. Counsel for Jones relied upon the evidence that Roughan had been charged with stabbing another mate, both to support the reliability of Jones' record of interview and to explain why Jones, though innocent of the killing, did not intervene to prevent Roughan's assault on the deceased or denounce him promptly to the police afterwards.

56. It is contended on Roughan's behalf that, while it was relevant to Jones' defence to show that Jones' record of interview was credible and that he had reason to fear Roughan, the evidence that Roughan had been charged for stabbing a friend was irretrievably prejudicial to Roughan. It is argued that the only way in which this prejudice could have been obviated was by ordering separate trials. In this regard, Counsel for Roughan relies upon the statement of Olsson J, with whom Malcolm CJ and Steytler J agreed, in Winning v R:¹¹

"In the event that an accused seeks to lead propensity evidence against a co-accused which, of its nature, is such that no directions of a trial Judge would be adequate to ensure that a jury could be expected to perform 'the remarkable mental feats required of them', the appropriate course is to direct a separate trial of the co-accused, however inconvenient that may be (R v Gibb & Anor [1983] 2 VR 155 at 165 - 166; see also R v Demivrok [1976] VR 244)."

57. In my respectful opinion this aspect of Roughan's argument should be accepted. The unfairness occasioned to Roughan by reason of the refusal of a separate trial was not a consequence of difficulty in disentangling the evidence admissible only against him from the evidence admissible only against Jones, but from the virtual impossibility that the jury could be expected to ignore the evidence that Roughan had been charged with stabbing a mate when considering the question whether Roughan had participated in the fatal stabbing of the deceased. Roughan's position was made even worse in this regard by his recorded statements in the prison van conversation with Jones which referred to this earlier charge and his familiarity with prison and the "angry boys". This evidence was quite prejudicial to Roughan, and could have been excised from the recording admitted into evidence without compromising the probative value of the balance of the conversation as evidence of the relationship between Roughan and Jones. In these circumstances, I doubt whether any directions by the learned trial judge could have obviated the prejudice to Roughan's prospects of an acquittal. In the event, however, the learned trial judge's directions to the jury served to exacerbate the prospect of error by the jury.

58. The learned trial judge directed the jury that they were not to use the evidence that Roughan had been charged with another offence to infer that Roughan was more likely to have committed the killing, but that they were entitled to use the evidence as tending to confirm the reliability of what Jones told the police in his record of interview and that Jones was of a less violent disposition than Roughan. This inference could, however, be used only in relation to the case against Jones. The learned trial judge told the jury:

"Now, also admissible only against Jones is the evidence from Detective Williams that James Roughan was on bail for another offence in relation to the stabbing of a mate. That corroborates one of the things that Jones says in his interview with the police, however it should not be used as evidence against Roughan.

…

Now, you have heard, as I said, in this trial evidence that James Roughan has been charged with another offence involving stabbing a mate and was on bail at the time when these offences are alleged to have occurred. As I said to you that is only relevant to the prosecution case against Chris Jones. It does tend to confirm what Chris Jones said to the police on that subject and that you might think that Jones was of a less violent disposition than Roughan but you must not use it for any other purpose.

You may not seek to draw some inference from it that because James Roughan has been charged with another offence or has been said to have been involved in undesirable conduct that he is therefore more likely to have committed the offence you are considering. In other words, it will be quite wrong for you to say, having heard that evidence, that the defendant is the sort of person likely to have committed the offence. If you accept this evidence, you may use it only to consider whether it [assists] the prosecution in the way I have described to prove its case against Chris Jones."

59. Counsel for Roughan levelled a number of criticisms at these directions. The first was that the evidence in question was not relevant "to assist the prosecution … to prove its case against … Jones": it was evidence which tended to assist Jones in his defence of the prosecution case. This criticism may be dismissed as largely a matter of semantics. There is more substance in the second criticism, which was that it is to require the jury to perform the kind of "remarkable mental feat" deprecated in the passage from Winning v R cited above, to direct them that the evidence may be used to confirm that the jury "might think that Jones was of a less violent disposition than Roughan" but not that Roughan "is the sort of person likely to have committed the offence". The distinction being drawn here is so fine as to be illusory. If Jones is less violent than Roughan, and one or other of them killed the deceased, then the only relevance of the fact that Jones was of "a less violent disposition" is that Roughan, having the more violent disposition, is more likely to have been the killer.

60. More fundamentally, the fact that Roughan had been charged could not have allowed the jury legitimately to have reasoned that Jones was of a less violent disposition than Roughan. The fact that Roughan had been charged with an offence of violence gave the jury no basis for concluding that Jones was of a less violent disposition. Roughan is presumed to be innocent of the stabbing charge, and there was no evidence before the jury which might have displaced that presumption.

61. Evidence that an accused has been charged with offences other than those for which he or she is being tried is well-recognised as highly prejudicial to an accused's prospects of acquittal.¹² In this case the effect of evidence that Roughan was charged with stabbing a mate was especially prejudicial insofar as the jury were invited to use that evidence to conclude that the other person charged with the killing was of a less violent disposition than Roughan. I am, therefore, driven to conclude that, notwithstanding the strong case mounted against Roughan, his prospects of a fair chance of an acquittal were adversely affected by the evidence that he had been charged with stabbing a mate and the directions given to the jury as to how they might use that evidence.

62. This is not a case where it is possible to be satisfied that s 668E(1A) of the Criminal Code should apply to enable this Court to dismiss Roughan's appeal. On the basis of the whole of the record, this Court cannot be satisfied of his guilt beyond reasonable doubt. It is not possible to exclude the possibility that the evidence that Roughan had been charged with stabbing a mate and the directions as to its use were decisive in the jury's consideration of the reliability of the evidence of O'Brien, Neuherz and Murdoch. This Court is not in a position to come to its own view as to the reliability of their evidence.

[64] Accordingly, Roughan's conviction must be set aside, and there should be a new trial in relation to the charge against Roughan.

[65] I turn now to consider the arguments on appeal advanced by Jones.

The prison van conversation

[66] On Jones' behalf it is submitted that, after hearing the recording of the prison van conversation, the jury could not be expected to ignore the evidence in that conversation which was inadmissible against him. But the critical passage of the recorded conversation set out at [28] above was plainly admissible against him. Further, having regard to explicit statements he had made to Mr Smith admitting his guilt of the murder of the deceased, and to his admissions to O'Brien, Murdoch and Neuherz, it is impossible to imagine that any inadmissible evidence in the prison van conversation was unduly prejudicial to his prospects of an acquittal.

Separate trials

[67] The principal submission advanced on behalf of Jones is that, at trial, Counsel for Jones was prevented from establishing that Roughan had, in fact, attempted to murder a friend by stabbing him, it being contended that this evidence could be used to show that it was more likely than not that Roughan struck the fatal blow. It was said that this evidence would have tended to show Roughan's propensity to kill, and to use a knife to effectuate that intention against a mate. It is argued that, so far as Jones' defence was concerned, to prevent an accused from deploying propensity evidence against a co-accused because of apprehended prejudice to the co-accused was necessarily to deprive the first mentioned accused of a fair trial. ¹³ The remedy in such a case is an order for a separate trial.

[68] The general proposition of law on which this submission depends, viz, that the considerations of undue prejudice which limit the deployment of evidence of propensity by the prosecution have no application to prevent a co-accused from adducing such evidence, is supported by the decisions of the House of Lords in R v Randall,¹⁴ the Privy Council in Lowery v The Queen,¹⁵ the decision of the Full Court of the Supreme Court of Queensland in Knight v Jones; ex parte Jones¹⁶ and the Western Australian Court of Criminal Appeal in Winning v The Queen.¹⁷

[69] These authorities support the general proposition that evidence showing a disposition or propensity for a co-accused to act in a certain way may be tendered by a co-accused to disprove his or her guilt. Where one or other of the co-accused must be the offender, evidence which tends rationally to show that the character and personality of one of the co-accused is such that he, rather than the other, is the guilty man will be admissible. Thus, in R v Mason and Priestley,¹⁸ Williams J (as his Honour then was) said of Lowery v The Queen that it:

"establishes that if evidence tends to support the contention that one of the two accused persons alone committed the offence, it may be led as part of the case of the defendant who would thereby be exonerated, notwithstanding the fact that it really does no more than show that the other accused had a disposition or propensity to commit that particular crime … it is important to remember the peculiar circumstances on which the decision in Lowery was based; the killing was a particularly sadistic one and psychological testing indicated that one of the two accused persons had sadistic tendencies – that was therefore a relevant matter for the jury to know when they were deciding whether either or both of the accused persons was guilty of the crime."

[70] It may, therefore, be accepted that evidence which shows a disposition or propensity of a co-accused to do the very sort of thing with which the accused are charged is not to be excluded for the reasons of policy or fairness which prevent the deployment of such evidence by the Crown.

[71] In Lowery v The Queen, the evidence showing criminal propensity was the opinion of an expert. In other cases the evidence said to demonstrate criminal propensity may involve proof of similar facts. Where it is sought to prove criminal propensity by proof of similar facts, as Connolly J, with whom Williams and Ambrose JJ agreed, said in R v Livingstone:¹⁹ "as with all similar fact evidence the occasions for its admission will be rare."

[72] In a case such as the present where the evidence relied upon to show a co-accused's propensity is evidence of similar facts, those facts must exhibit the kind of "striking similarity" which makes it probable that the co-accused committed the crime with which he and the co-accused are charged. In terms of the factual basis for the argument advanced on behalf of Jones, the evidence that Roughan had been charged with the stabbing of a mate was not itself apt to prove anything at all in relation to whether or not Roughan had a disposition to violence, much less that his disposition made it more probable that it was he rather than Jones who fatally stabbed the deceased.

[73] In this case, there is no evidence that the actual circumstances of the earlier stabbing were so strikingly similar as to render evidence of the earlier stabbing by Roughan admissible in the case concerning Jones for the purpose of showing that Roughan was more likely to have fatally stabbed the deceased than Jones. At trial, Counsel for Jones did not actually seek to adduce evidence from either of the complainants in the stabbing incident with which Roughan had been charged. Nor was it suggested that the Crown should have called them. On appeal it was asserted that this course reflected an acceptance of the learned trial judge's ruling that any such evidence would have been irrelevant. But the learned trial judge made no ruling which would have precluded an attempt to lead evidence from the complainants in respect of the stabbing charge against Roughan. Her Honour's ruling in relation to this aspect of the case was to refuse to permit Jones' counsel to explore the detail of the charges against Roughan. In this regard, her Honour was plainly correct. The proposed line of questioning could only have elicited hearsay statements from the police officer, and, more importantly, the detail of the circumstances of the charges had no bearing on the issues to which the evidence that Roughan had been charged was relevant, ie the reliability of his statements to the police and that Jones had reason to fear Roughan.

[74] In any event, the evidence against Jones, from Jones' own admissions, is that it was he who stabbed the deceased immediately after their wrestling bout and that he had murdered the deceased. Evidence that Roughan had previously stabbed another person with whom he had been friendly would not have rendered the evidence against Jones less cogent.

Unfairly obtained evidence

[75] It is submitted on Jones' behalf that the evidence of O'Brien and Neuherz should have been excluded under s 130 of the Evidence Act 1977 (Qld). This section is concerned to preserve the discretion of the court in criminal proceedings to exclude evidence which has been unfairly obtained.²⁰ It states:

"Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence."

[76] In R v Hasler; Ex parte Attorney-General,²¹ Thomas J, having considered the case law relating to the exclusionary discretion, said:

"It is desirable that I attempt to summarise the conclusions I have reached from reviewing the relevant authorities on this question.

(a) The exercise of the discretion is not a simple balancing function in which the judge decides whether the overall effect of the evidence is more prejudicial to the accused than it is beneficial to the Crown case. Sometimes the discretion is elliptically described in headnotes and elsewhere as a 'discretion to exclude where prejudicial value outweighs probative value'. Such abbreviations should not be permitted to modify or distort the true test, and should be recognised as mere shorthand references to it.

(b) Exclusion should occur only when the evidence in question is of relatively slight probative value and the predjudicial effect of its admission would be substantial. Without dissenting from any of the five formulations quoted above, it is apparent that those stated by Barwick CJ and by Stephen and Aickin JJ in Bunning v Cross (supra) give proper recognition to these factors and that they may safely be used as concise working statements of the principle.

(c) In performing the balancing exercise, the only evidence that should be thrown into the 'prejudice' scale is that which shows discreditable conduct other than those facts which directly tend to prove the offence itself. The 'prejudice' cannot refer to the damage to the accused's case through direct proof of the offence. To speak of a 'balancing' of prejudicial effect against probative value of such evidence is absurd, because the weight of each will be exactly the same. If prejudice arising from strict proof of the case were to go into the 'prejudice' scale, then the additional prejudicial effect would always tip the scales and the evidence would never be admissible."

[77] It was argued that O'Brien and Neuherz (but not Murdoch) had been pressured or induced to give statements adverse to the appellants. Jones' Counsel sought to have this evidence excluded on the basis that they had been prosecuted as accessories after the fact to murder and had received wholly suspended sentences conditioned upon their undertakings to give evidence against the appellants.

[78] The learned trial judge refused to exercise her discretion to exclude this evidence. While it is said that this evidence should have been excluded by the learned trial judge, the submissions made on behalf of the appellant do not identify any error in her Honour's refusal to exercise the discretion to exclude this evidence. I am respectfully unable to see any basis for concluding that the learned trial judge erred in the exercise of her discretion. The evidence was highly probative, and there was support in the other evidence such as that of Mr Smith and the prison van conversation;²² its weight in the circumstances being a matter for the jury.

Directions concerning Jones' bad character

[79] It is argued that evidence of Jones' bad character was inadmissible. But the attacks by the appellants on each other opened up the admissibility of evidence of Jones' bad character under s 15(2) of the Evidence Act 1977 (Qld). The evidence was therefore admissible. The use which might legitimately be made of that evidence by the jury raised a different issue.

[80] The learned trial judge directed the jury in the following terms:

"Now, another piece of evidence that is only admissible against James Roughan is evidence that you have heard in this case that Chris Jones has used illegal drugs such as speed and cannabis and has some criminal convictions. That is only relevant in the prosecution case against James Roughan to endeavour to demonstrate that James Roughan was a less violent and dishonest person than Jones. You must not use it for any other purpose. You may not seek to draw some inference from it that because Chris Jones has committed other offences, or has been said to be involved in undesirable conduct, that he is therefore more likely to have committed the offence you are considering. In other words it would be quite wrong for you to say having heard that evidence that the defendant is the sort of person likely to have committed the offence. If you accept this evidence you may use it only to consider whether it [assists] the prosecution in the way I have described to prove its case against James Roughan."

[81] In my respectful opinion, the invitation to the jury to use the evidence of Jones' bad character to conclude that Roughan was a "less violent and dishonest person than Jones" was erroneous. I am unable to understand how the jury would not have regarded the conclusion, which they were invited to consider, ie that Roughan was a "less violent and dishonest person than Jones", as a possible basis for resolving the cut throat defences run by each of the appellants against Jones.

[82] In my respectful opinion, the evidence of Jones' bad character was not such as to found an inference that Jones was disposed to engage in the kind of murderous assault which befell the deceased, much less that Jones was more likely to have done so than Roughan. The evidence of Jones' bad character summarised above suggested that he had some propensity to acts of personal violence, but not in any way which was so strikingly similar with the circumstances of the death of the deceased as to make that evidence relevant in favour of Roughan in resolving the question whether the killer was Jones rather than Roughan. I consider that the jury were misdirected in relation to the use which the jury might legitimately have made of this evidence. At the highest, this evidence showed that Jones was a person of bad character whose exculpatory assertions might be treated as having less weight than would otherwise have been the case.

[83] This misdirection was, however, innocuous having regard to the overwhelming strength of the case against Jones. It caused him no real forensic disadvantage. It was entirely unlikely to have deprived him of a fair chance of an acquittal.

Roughan's CDs

[84] Jones also argues that the learned trial judge erred in precluding an examination of the CDs celebrating violence and death found in Roughan's bedroom.

[85] While it is arguable that Jones should have been allowed to put this evidence before the jury as a demonstration of Roughan's propensity to violence, once again, it is impossible to conceive that the absence of such evidence adversely affected Jones' prospects of an acquittal.

Conclusion and orders

[86] Roughan's appeal should be allowed. The conviction should be set aside, and there should be a new trial.

[87] Jones' appeal should be dismissed.

[88] MUIR JA: I am in general agreement with the reasons of Keane JA and McMurdo J. I do not find it necessary, however, to express a view on whether, in a case such as this, the general principles governing the admissibility of similar facts as evidence of a co-accused’s propensity to commit a crime of the nature of the subject crime are always applicable without qualification. I agree with the orders proposed.

[89] McMURDO J: Substantially for the reasons given by Keane JA, I agree that Roughan’s conviction should be set aside and he should be re‑tried and that Jones’ appeal should be dismissed.

Roughan’s appeal

[90] The evidence that Roughan had been charged with attempted murder, involving the alleged stabbing of a “mate”, which came from the cross‑examination by counsel for Jones of a police officer, was correctly admitted in favour of Jones. It was relevant to his state of mind: to why he assisted in the disposal of the body and why he did not go to the police. It supported his statement to police that he had believed Roughan was on bail for a charge of that kind and that he had believed that Roughan was a violent man who might have turned on him.

[91] Somehow the jury had to be made to exclude any consideration of this evidence except when assessing Jones’ state of mind. And the jury had to understand that, even in relation to Jones, the evidence was not proof of Roughan’s propensity. With the clearest of directions, there was nevertheless a risk that the jury would use it to assess propensity, and adversely to Roughan. Especially in the context of the horrific facts of this case, the fact of that other charge was highly prejudicial. Ultimately however, it is unnecessary to decide whether a separate trial should have been then ordered, because the question is whether, looking at the trial as a whole, there was a miscarriage of justice. The risk that the jury misused evidence of this other charge must be considered also by reference to what happened during the remainder of the trial.

[92] Subsequently the prosecution tendered a recording of the entire conversation between the defendants as they travelled in the prison van. There were parts of this conversation which were clearly prejudicial to Roughan. There were statements by Roughan which indicated that he knew many people in prison, that he had a particular knowledge of prison life and that he had been to this prison previously. But also in this category were references to the other charge against Roughan, in this passage:

“Jones:‘You got another charge or something don’t you’.

Roughan:‘They’re separate to this one’.

Jones:‘It still gets added on’.

Roughan:‘And I’m going to win that one’.

Jones:‘Not after all this’.

Roughan:‘Yeah, after all this, cause they can’t bring two into one …’”.

The entire recording was admitted on the basis that it all evidenced the relationship between the defendants. In my view, the probative value of the recording, either for the proof of that relationship or otherwise, would not have been compromised by the exclusion of those prejudicial passages and they should have been excluded.

[93] The admission of the entirety of the tape was supported by counsel for Jones. This confirmed that it would be argued for Jones that Roughan was a violent criminal with a propensity to commit this murder. So in his address, Jones’ counsel, after referring to Jones’ interview (where he had said that Roughan was on bail “for stabbing a mate of his”), said:

“And that’s confirmed by Detective Williams. Now, he hasn’t been convicted of any offence and you give him the presumption of innocence. But you might think that may assist you in deciding who’s the person, you might think that Jones is less violent, has a less violent disposition than Roughan.”

[94] Keane JA has set out the direction which was given to the jury about the evidence from Detective Williams of Roughan’s other charge, where part of the direction corresponds with that argument. But then the jury was directed that it was not to use this evidence to infer that Roughan “is the sort of person likely to have committed the offence”. I agree with Keane JA that the difference between this and a view about Jones’ “less violent disposition” was illusory. The jury is likely to have understood that the fact of the other charge could be used in assessing the propensity of Roughan. Once the jury was considering whether Roughan had a particular propensity, when considering Jones’ defence, there was a high risk that the jury would be unable to exclude any view about that when considering the case against Roughan, notwithstanding the direction that this point was to be considered only in relation to Jones.

[95] That risk was enhanced by the reference to Roughan’s other charge in the prison van tape, and the direction given in relation to that evidence. In the summing up, the learned trial judge divided the evidence into three categories: that admitted against both defendants, that to be considered in relation to Jones and that in relation to Roughan. The prison van tape was placed in the first category. The jury was likely to have thought that it could use anything from this conversation against either defendant. The jury must have understood the reference to the other charge in the tape to be a reference to the charge proved through Detective Williams. The jury was directed that the entire conversation was relevant to the relationship between the defendants. They may well have thought that an element of that relationship was that Jones was afraid of Roughan because he believed that Roughan had stabbed someone else. This made it yet more likely that the jurors would not put out of their minds Roughan’s other charge when considering his guilt.

[96] For the respondent, Mr Mackenzie drew attention to s 15(2) of the Evidence Act 1977 (Qld). Although that provision did not apply here, because neither defendant gave evidence, he suggested that s 15(2) gave the fact of a charge a significance which is consistent with the use which Jones sought to make of it in this case. By that provision, there is a prohibition upon questions in the cross‑examination of a defendant which would tend to show that the defendant has committed, has been convicted of or has been charged with any offence, or is of bad character. The subsection then provides four exceptions to that prohibition. However, s 15(2) does not suggest that the fact of another charge, of itself, can be probative of a propensity to commit a like offence. It anticipates that a question as to a charge may have a proper purpose, such as a means of challenging the evidence which the accused has given,²³ or as a question preliminary to a proper question concerning a conviction.²⁴

[97] I agree with what Keane JA has written as to the proviso. But it should be noted also that the respondent did not seem to argue for the application of the proviso in the event that the grounds involving Roughan’s other charge were established.²⁵

[98] As Keane JA has written, the evidence of Murdoch, O'Brien and Neuherz was important. Absent that evidence, there was the prison van conversation and a circumstantial case, including the circumstance that Roughan was involved in the disposition of the corpse. In the prison van, Roughan did not claim that he was entirely innocent and that Jones had in all respects been the only aggressor. But nor did Roughan unambiguously admit to having killed or contributed to the killing of the deceased. Jones suggested that it was Roughan who had decapitated the deceased. Roughan did not reject that but nor did he expressly admit it. Instead, his response was to say that if they were in court together “the truth can come out, and I know my barrister will fish the truth wherever it is to be found”. Roughan appeared to accept that he would be in prison for a long time. But he seems to have been intent upon venting his anger at Jones for having sought to blame him and upon making Jones believe that Jones would be convicted despite attempting to shift all responsibility to him. He was wanting Jones to believe that Jones would be in jail for a long time and would suffer reprisal from Roughan and his associates. That was the context in which Roughan said:

“Which ever way you look at it mate, murder or helping me murder, which ever way you wanna look at it, you’re still goin do a long time with me.”

So he was asserting the possible outcomes for Jones, only one of which was “helping me murder”. He was saying that Jones’ version would not help Jones, rather than defining their respective criminal responsibilities. At least absent the evidence of Murdoch, O'Brien and Neuherz, I would not be persuaded to convict Roughan on the basis that Roughan has there admitted a participation in the killing of the deceased.

[99] This conversation has to be considered with the other evidence, including, of course, Roughan’s conduct later that night and subsequently. But a consideration of that conduct would depend to a significant extent on the effect to be given to the evidence of Murdoch, O'Brien and Neuherz. If the evidence of those three is accepted, then the case against Roughan is stronger. Not only does that evidence detail Roughan’s conduct of later that night and subsequently, but it might also prove admissions by Roughan that he joined Jones in stabbing the victim and that he and Jones killed him. But this Court has not had the benefit of seeing those witnesses. Absent their evidence, there is no clear admission by Roughan that he was involved in the killing or in any stabbing. And if it could be found from the prison van conversation that Roughan had effected the decapitation, the possibility that this occurred post‑mortem could not be excluded. Similarly, if it could be inferred that the injury to Jones’ right hand was from a knife held be Roughan, the possibility that this was post mortem could not be excluded, especially having regard to the medical evidence that most of the stabbing happened then.

[100] I agree also with what Keane JA has written in relation to the unsafe and unsatisfactory ground. If the jury accepted the evidence of Murdoch, O'Brien and Neuherz, the finding was open that Roughan had admitted participating in the stabbing and in the killing of the deceased. And if the jury accepted that evidence, the prison van conversation when considered with that evidence would be more damaging.

Jones’ Appeal

[101] Jones complains that he was not permitted to explore the details of the other charge against Roughan. His real purpose in that was to endeavour to strengthen his ultimate argument about Roughan’s propensity. He was not wanting to prove further matters which were within his knowledge at the relevant time. The learned trial judge rightly held that such further cross‑examination of Detective Williams should not be permitted, because it would not be relevant to Jones’ state of mind, and it was hearsay as to the facts upon which the charge had been brought.

[102] It was open to Jones to lead evidence of Roughan’s propensity by reference to this other charge. In particular, Jones could have called the complainants in that matter in an endeavour to prove the facts upon which that charge was based. I agree with Keane JA that Jones could have lead evidence of the propensity of Roughan which would not be admissible if led by the prosecution in its case against Roughan. However, I would not accept that in this context the propensity of a co‑accused would have to be the subject of evidence showing some striking similarity between the other matter and the present charge, or that, for example, it would have to bear any other characteristic as described in the joint judgment of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen.²⁶ So in Lowery v The Queen,²⁷ an accused was permitted to lead evidence of the propensity of the co‑accused, not by similar fact evidence, but by a psychologist’s evaluation.

[103] Jones now complains that he was precluded from calling evidence of the facts of the other charge by the trial judge’s ruling that Detective Williams could not be further cross‑examined. But her Honour did not rule on the admissibility of such evidence and nor was she asked to do so.

[104] I would reject any contention that the fair trial of Jones was at risk by the direction given about his use of illegal drugs and his criminal convictions. That direction is set out in the judgment of Keane JA. It was given for the jury’s consideration of the guilt of Roughan. I agree with Keane JA that at its highest, the evidence showed in favour of Roughan, that Jones was a person of bad character whose exculpatory assertions might be treated as having less weight than would otherwise have been the case.

[105] The convictions of Jones were proved by the cross‑examination by Roughan’s counsel of a police officer. Counsel then appearing for Jones disavowed any objection to this evidence. There was a conviction in 2003 for possession of property suspected of being stolen, another in 2003 for an offence of common assault and convictions in 2005 for offences of entering premises with intent and entering premises and committing an indictable offence. On no view could the evidence of these convictions be thought to prove some propensity of Jones to commit this offence. I do not see that there was any significant risk that the jury would reason in that way. That provides an apparent explanation for Jones’ counsel not objecting to this evidence. It is that he wished to have the jury compare these relatively minor matters with Roughan’s charge of attempted murder. This evidence of Jones’ convictions and use of illegal drugs was prejudicial, but unlike that of the Roughan charge, the prejudicial impact was not so high that it could not be negated by appropriate directions. In this case the jury would have been able to reason according to the direction that this information about Jones was to be used only in considering Roughan’s guilt. All of this explains why, as I understand the submissions for Jones, there is no complaint that he was denied a fair trial by the admission of this evidence or by the direction given about it.

[106] Jones does complain about the trial judge’s refusal to allow his counsel to explore the matter of CDs found in Roughan’s bedroom. This was said to be relevant to the proof of a propensity of Roughan to be violent. The trial judge ruled that there could be no probative value in this evidence. The defence proposed to prove by cross‑examining a detective that at Roughan’s place were found about 90 CDs, almost all of which had subjects like “Death”, “Violence” and “Killing”. In my view, the trial judge should have allowed this evidence. It had some relevance to the question of Roughan’s propensity to violence, a question properly arising in Jones’ case. The fact that Roughan was also being tried was not a basis for excluding or limiting this evidence. This was not a balancing exercise for the trial judge and nor did her Honour so rule. It was simply considered to be irrelevant. In my respectful view it was relevant and it was for the jury to consider what they made of this evidence. However, any unfairness to Jones in this respect was overcome by the evidence and directions in relation to Roughan’s other charge, and the evidence of the prison van tape where it referred to that matter and Roughan’s apparent familiarity with prison life and his association with prisoners. When considering Jones’ case, all of this must have left the jury with the impression that Roughan was a violent man, capable of performing a serious crime of violence without assistance from Jones. The rejection of the evidence about the CDs did not deprive Jones of an acquittal by significantly lessening his argument based on Roughan’s propensity.

[107] The remaining ground of appeal which was argued²⁸ was that the evidence of O'Brien and Neuherz should have been excluded, and I agree with what Keane JA has written about this ground.

[108] It follows that I would dismiss Jones’ appeal.

Footnotes

1. See s 7(1) of the Criminal Code. ↩

2. Cf R v Falzon [1990] 2 Qd R 436. ↩

3. As distinct from Jones' self-centred and, incidentally, self-damning rumination: "Why did we do it?" (emphasis added) ↩

4. Cf R v Rice [1996] 2 VR 406 at 411 – 418, 421; R v Lennox [2007] QCA 383 at [50], [54], [58] – [68]. ↩

5. [2000] QCA 39 at [12]. ↩

6. [2005] HCA 8 [58]; (2005) 79 ALJR 662. See also Webb v The Queen (1994) 181 CLR 41 at 88 – 89. ↩

7. (1995) 86 A Crim R 249. ↩

8. Cf Darby v The Queen (1982) 148 CLR 668. ↩

9. Crofts v The Queen (1996) 186 CLR 427 at 440 – 441; Gilbert v The Queen (2000) 201 CLR 414 at 420 [13] and 425 [31]; R v Davidson [2000] QCA 39 at [13]. ↩

10. [2000] QCA 39 at [13]. ↩

11. [2002] WASCA 44 at [42]. See also Lobban v R [1995] 2 All ER 602 at 613; R v Randall (2004) 1 Cr App R 26 at 38. ↩