R v Schaeffer [2005] VSCA 306

R v Schaeffer [2005] VSCA 306 - VSCA 2005 case summary — Zoe

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1 The circumstances that surround the conviction of the applicant on a presentment for murder are set out in the judgment of Eames, J.A. and which I gratefully adopt.

2 Under ground 1, the applicant complained as to a misdirection by the trial judge upon the elements of murder. The ground and the direction given are fully set out in the judgment of Eames, J.A. The trial judge provided the jury with a document setting out his Honour's description of the ingredients of murder. His Honour then proceeded in his charge to give directions to the jury that Mr Hillman, for the Crown, conceded on the application were wrong. The trial judge informed the jury, inter alia; "for murder, the prosecution has to prove that he deliberately stabbed him in the fatal way and that it was deliberate and it was not an accident." However, elsewhere in the charge, his Honour provided the jury with a definition of the word "deliberate", namely, that the word meant "...that the fatal stabbing was something which was not intended or foreseen by the accused and could not reasonably have been foreseen by an ordinary person."

3 The defence case at trial was that the fatal stabbing was an accident, explained by the deceased falling onto the knife in the fight, or occurring in the course of the applicant warning the deceased away. Once the trial judge introduced the element of reasonable foreseeability into the equation in attempting to define the word "deliberate", there was a risk that the applicant's defence of an accident was prejudiced. In charging juries in murder cases, trial judges sometimes use the description "conscious, voluntary and deliberate act". That is not where the vice lies in this case; it was the application of the test of reasonable foreseeability that was problematic. It undermined the defence of accident in all the circumstances.

4 Regrettably, there was no exception to the charge by the defence counsel, or, for that matter, clarification sought by the prosecutor. I will return to that factor.

5 The applicant further complained, under ground 3, that the trial judge wrongly admitted into evidence the purported confession of the applicant to his brother-in-law in the presence of Senior Constable Bourke: "I stabbed him. I stabbed him twice". When the opportunity arose, Bourke did not put the matter to the brother-in-law, Michael Kurrle, or to the applicant in the course of interviews. Following a voir dire, the trial judge admitted the evidence from Bourke as to the confession. His Honour did so on the grounds of relevance, absence of non-compliance with statutory requirements[1] and lack of unfairness in the circumstances. His Honour stated that his "reasons" would be produced at an "early stage in the trial". They were not forthcoming. Where a trial judge indicates that reasons will be provided at a later time, it is desirable that the prosecutor remind the judge of that fact in an appropriate and convenient way (e.g. in court at the end of the trial or through the judge's associate, desirably in writing). The duration and complexity of modern trials is such that a prosecutor ought assist the Court in this way. In the event, the statements of the trial judge stand as the reasons, so far as known, bearing in mind that this application is not an administrative review challenging the adequacy of the reasons below.

6 Was the judge in error to admit the confession? In my view, s.464H of the Crimes Act 1958 does not apply to the circumstances. This was not a case of a statement made "off record" or outside the recording required by the statute. The question was whether the discretion was wrongly exercised in the admission of the evidence because it was unfair. Plainly, it was. It was essential, as events transpired, that the applicant and his brother-in-law had the matters put to them during their respective interviews by the police. The deprivation of the opportunity to answer on an early and spontaneous basis was irreparably lost in the circumstances. Any denial or repudiation of the confession at trial by either the applicant or his brother-in-law was inevitably tainted. The circumstance was compounded by the way the Crown put its case in final address by reliance on the confession. The discretion to admit the evidence was wrongly exercised. The ground is made out.

7 Mr Hillman submitted that, even if the confession was wrongly admitted into evidence, it was a matter that was appropriate for direction by the trial judge. Although, not given, Mr Hillman urged that in view of the strength of the Crown case, the application of the proviso under s.568(1) of the Crimes Act applied. The matter does not reach that stage. The admission of the evidence was of a level of unfairness and prejudice that it is difficult to anticipate that a direction would have rectified and addressed the unfairness. The proviso should not be invoked.

8 The remaining grounds (grounds 2, 4, 5, 6 and 7) are considered in the reasons of Eames, J.A., together with the overall application of the proviso. I agree with the reasons of Eames, J.A. with respect to the grounds and the proviso.

9 However, there is an additional observation I make. Running through the application, there were repeated failures by the defence counsel at trial to take exceptions to the charge of the trial judge (nor did the prosecutor raise these matters). Counsel at the trial were experienced. There is an obligation on counsel to comprehend the law and assist the trial judge.[2] Unfortunately, that did not occur as it might in this trial, such that, if rectified by further direction, some grounds made out on the application may not have arisen.

10 In the circumstances, for the reasons stated, I would grant leave to the applicant to appeal, treat the appeal as heard instanter, allow the appeal, quash the conviction below and remit the matter for retrial.

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11 In this application I have had the considerable advantage of reading the reasons for judgment to be delivered by Eames, J.A. Subject to one matter of emphasis, I agree with his reasons for considering that this application should be granted and the appeal allowed.

12 My only difference is as to the need for warnings with respect to certain admissions, although, as was conceded, the circumstances in the present case were such as to require a direction as to the use of the disputed admissions. My concern is that certain authorities binding on this Court appear to treat the evidence of police witnesses as to confessions and admissions such as ordinarily to require some form of warning because they are perceived to be inherently unreliable. Nevertheless, the persistent and continuing denigration of police evidence in this country, as evidenced by cases such as McKinney v. The Queen[3] and Nicholls v. The Queen[4], has gone so far, that it is not difficult to see why police officers view the court system as generally antipathetic to the even-handed but fair prosecution of offenders. Whereas in some areas of the law the view is taken that it is undesirable to characterise particular witnesses as inherently unreliable unless corroborated (to use the former but relatively inflexible concept), it seems to be assumed that the jury cannot be left to assess the reliability of evidence of individual police officers without warning that it is dangerous to convict upon solely the evidence of these "tainted" witnesses. Although Brennan, J. in McKinney[5] raised a protest about characterising all police officers by reference to the alleged and sometimes proven dishonesty and other misbehaviour of a relatively few, nevertheless it seems largely to be accepted that unless a confession or admission is tape recorded and corroborated or unless, arguably, there is other circumstantial evidence in support of the Crown case, the jury are invited to treat these witnesses along the same lines as prison informers or accomplices.

13 In the present case, regrettably, no conventional direction was given consistent with Burns v. The Queen[6] and consequently the ground is made out on that limited basis. If it were not for authority, that might be sufficient but, having regard to the absence of reasons for the former ruling, it will be necessary for the judge

hearing the new trial to deal with the matter afresh, more likely than not upon the holding of a voir dire. If the relevant evidence establishes that the admissions were voluntary and that it is otherwise just that they be admitted into evidence, the need for a warning of some kind will depend upon what the judge then finds and the application of cases such as McKinney and Nicholls. I cannot in that respect regard the outcome as satisfactory, but the individual circumstances of the evidence as it then appears to the judge may evidence sufficient unsatisfactory features as to justify some form of warning.

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14 The applicant applies for leave to appeal against his conviction of murder by verdict of a jury on 9 December 2004. The applicant was sentenced to 16 years' imprisonment with a non-parole period of 12 years being set[7].

15 The killing occurred on 21 June 2003 at Wodonga. The victim, Nathan John Hanley, was aged 27 years at the time of his death. He had been in a relationship with Kimberly Terlich for some nine years and they had a son, born in 2002. There had been difficulties in the relationship which caused them to live apart for approximately ten weeks prior to Hanley's death. Hanley was drinking heavily and was suffering depression, for which he was receiving medication. He saw Terlich and his son on a regular basis but Terlich had formed an association with the applicant, Peter Schaeffer.

16 On 1 May 2003, Terlich and her son had been visiting the applicant's brother, Richard Schaeffer, and his wife Emma when Hanley arrived unexpectedly, causing Terlich to depart the house to speak to him. Hanley struck Terlich, causing her a blood nose and black eye. Richard Schaeffer then came out from his house, carrying a baseball bat and yelling at Hanley, who departed the scene. Soon thereafter, Richard Schaeffer, Emma Schaeffer and Terlich were joined at the scene by the

applicant and the applicant's brother-in-law, Michael Kurrle. The applicant was heard talking about a payback against Hanley, for assaulting Terlich.

17 On 19 May 2003, approximately a month prior to Hanley's death, Ms Terlich was at her home with the applicant, when Hanley arrived at the door. The applicant departed the scene but Hanley remained at the house. He smashed the windows and caused a disturbance, which led to an intervention order being taken out against him by Terlich.

18 On 19 June 2003 Terlich again saw Hanley. He was very upset by the recent death of his grandmother. He told Terlich that he did not want to be alone and she accompanied him back to her own house where she spent the evening with him, comforting him over the death. On the following day, 20 June 2003, she told the applicant that Hanley had spent the night with her, in her bed, which angered the applicant. During the morning she drove Hanley to his mother's house and then later attended at the home of Emma and Richard Schaeffer. The applicant also resided at that house. That evening, the applicant, his brother and sister-in-law, and also Terlich, went to a hotel, returning at about midnight. The applicant and Terlich were inside the house when they heard a noise from outside. It was Hanley, uttering the word "Pete", quietly.

19 The applicant yelled to his brother to get the baseball bat and they then both left the house, the applicant going out the door first. The evidence disclosed that outside the house was Hanley and his friend, Mark Smillie. Smillie had been in company with Hanley that evening. He said in evidence that Hanley was really angry. Smillie said when they had arrived at the Schaeffer residence Hanley had been going from the footpath to the car owned by the applicant, striking the car on its roof. Hanley told Smillie to leave the scene, which he did, but Smillie soon returned and upon his return saw the applicant striking Hanley to the stomach and the head with a baseball bat. Hanley was trying to protect his head. Hanley grabbed the applicant, but did not appear to Smillie to be fighting him. The applicant then swung the bat at Hanley again. Smillie grabbed the bat from the applicant and threw it away. Smillie then observed Hanley lying on the ground with blood coming from injuries to his head and stomach.

20 The pathologist, Dr Malcolm Dodd, gave evidence of there being two obvious injuries to the head of the deceased which were caused by blunt force trauma, and also two stab wounds, the first being just below the breastbone, which had entered for about 50 mm, of which 30 mm extended into the liver, and had caused the lung to deflate. A second stab wound, to the left side of the body, was 22 mm in length and 13 mm in depth. That was a posterior wound which had caused enormous blood loss and was an injury consistent with at least moderate force. The chest wound was an injury consistent with mild to moderate force. The injury to the side was fatal. The deceased had a blood alcohol reading of approximately .26%.

21 The learned trial judge directed the jury on a range of defences, including self-defence and provocation. Defence counsel also conducted the case on the basis that the wounds may well have been caused accidentally in the course of a struggle, and his Honour gave directions as to that.

22 The applicant, who did not give evidence, seeks leave to appeal on seven grounds, as follows:

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29 The standard charge book direction for murder states that this element requires that the act causing death must be "conscious and voluntary", although it expands upon that by stating that "Crime consists of the doing of a deliberate act or acts". The addition of the word "deliberate" to the expression "conscious and voluntary", when describing this element, is sometimes, but not usually, employed by trial judges. At common law it would be by reference to the requirement that the fatal act be "voluntary" that a defence of accident would fall for consideration, when the intended meaning of "accident" was that the fatal act had been an unwilled occurrence[9]. Used in that sense the word "deliberate" could serve a purpose in helping a jury in its assessment and understanding as to whether the fatal act was voluntary, that is unwilled. However, whilst the word "deliberate" might perhaps be usefully employed to emphasise the requirement of intention to perform the very actus reus which caused the death, it might also be applied in addressing a lack of intention to cause the particular result which followed from the act which caused death.

30 "Accident" is itself a word with "notoriously imprecise connotation"[10] and may be used to mean a denial of the intent to perform the actus reus or else a lack of mens rea: R. v. Fowler[11]. Thus, if the word is to be used in a direction its precise and intended application is of importance.

31 Crockett, J. in R. v. Haywood[12] used the expression "a conscious, voluntary and deliberate act" when considering this element of murder, but used it in the context of discussing the mens rea of the accused person at the time when the act causing death happened. In a detailed analysis of the varying uses of the term "voluntary", his Honour acknowledged that the notion of an involuntary act may relate to the actus reus rather than to mens rea. If used in the former sense then, so he held, if the Crown has not established that the act was willed there must be an acquittal; there would be no basis for an unlawful and dangerous act manslaughter verdict.

32 In this case defence counsel - who conceded to the jury that they would probably find that it was the accused who brought both the knife and the baseball bat from the house - used the word "accident" both in the sense of an act occurring without it being willed and in the sense of an act which was willed but without being accompanied by an intention to cause any or any serious injury. Thus, he submitted to the jury, the fatal injury could have arisen in the course of a melee wherein the deceased man fell onto the knife, rather than the knife being "thrust" at him, or else, the knife might have been used to "ward off" the aggressor, but used without murderous intent.

33 The difficulty with the direction given in this case lies not in the fact that the word "deliberate" was used but in the definition of that word which the judge then gave the jury.

34 The concept of foreseeability as used by his Honour in his direction was consistent with the way in which the prosecutor addressed the jury, and may well have been inspired by those comments, which were not the subject of adverse comment by defence counsel. The prosecutor, having said that his Honour would give a more detailed direction on this topic, told the jury that:

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37 In the Criminal Code in Queensland the word "accident" was used in s.23(1)(b) in contrast to an act "independently of the exercise of the person's will" under s.23(1)(a). Under that Code the word "accident" has been interpreted as requiring that the consequence be one which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person"[16], but critical to that interpretation were the opening words of s.23 which expressly introduced the concept of negligent acts and omissions[17].

38 Thus, as Kirby J., observed in Stevens v. The Queen[18], with respect to the Queensland Code, it is clear that the Codes do not merely collect and re-state the pre-existing common law, but apply new definitions.

39 In my opinion, the concept of reasonable foreseeability has no place in Victorian law with respect to the defence of accident on a count of murder. In Victoria there is no Code dictating use of the concept, and as Mason, C.J., Toohey, Gaudron and McHugh, JJ. observed in Wilson v. The Queen[19], when discussing manslaughter, the concept of reasonable foreseeability is likely to cause confusion. The words "conscious and voluntary" are relevant both where the Crown must negative a defence contention that the actions were the product of an unsound mind or automatism and where it must negative a defence based on the notion of accident when used in the sense of an unwilled act. Where the word "accident" is being used to mean an unintended consequence of a willed act it would more appropriately be dealt with under the element of murderous intention. The critical matter was that the jury understood what the defences were and what the Crown had to prove to overcome those defences. If the jury concluded that the act causing the injury was unwilled then the applicant was entitled to be acquitted. If the jury concluded that it was willed but that he did not intend to cause death or really serious injury then the jury would have been obliged to consider manslaughter.

40 Subject to any question of reckless murder - which was not part of the Crown case and which I need not address - neither "voluntary" nor "accident" were words as to which reasonable foreseeability had any relevance. By reference to the word "deliberate" the learned trial judge introduced that concept to the jury.

41 Mr Hillman conceded that the direction was wrong in its references to reasonable foreseeability, but submitted that it bore so little relationship to the issues in the case, as it was contested by the parties, that the jury would have simply ignored the direction. I can not accept that submission. In my view, given the various scenarios that defence counsel proffered to the jury under the broad heading of "accident" there was a real risk that the jury may have rejected the defence of accident by reference to the incorrect directions as to reasonable foreseeability, which directions were not further explained or related to the case. The jury might have regarded the defence of accident as being one which could be rejected by virtue of an objective assessment of what was reasonably foreseeable, rather than by requiring satisfaction beyond reasonable doubt that the fatal stabbing injury occurred with the exercise of the applicant's will. Notwithstanding the fact that no exception was taken to his Honour's direction, the conviction can not stand. The applicant was entitled to have the elements of the offence properly explained to the jury[20].

42 Although that conclusion, if agreed upon, is sufficient to dispose of this application, it is appropriate that I deal with the remaining grounds of appeal.

Ground 3: The disputed admission

43 Police attended the scene of the stabbing, outside the house, at 1.30am on 21 June 2003. The victim was on the ground, alive but mortally wounded, and the applicant was inside the house. He initially gave a false name but then said that he had "done it". He said that Hanley had had the knife and that he, the applicant, had been fighting two men. He said that he had thrown the knife away somewhere. He was taken to the police station where an interview commenced at 3.40am., conducted

by Senior Constable Shane Bourke and Senior Constable Galvin. Bourke led the questioning. Hanley was still alive when the questioning commenced. The interview was suspended at 3.42am and recommenced at 4.19am. Upon its recommencement Bourke placed on the record that in the interval the applicant had spoken to his brother-in-law, Michael Kurrle, and to a solicitor, James Sloane. The applicant was asked to confirm that when he spoke to his solicitor no police were present and that "to your knowledge, no persons could hear the conversation taking place between you and the solicitor". He was asked, and confirmed, that he was "happy" with the advice from his solicitor and "with the treatment given by us". The interview terminated at 4.36am. He was further interviewed, commencing at 3.48pm on 21 June 2003, by Bourke and Detective Senior Constable Kneebone, the latter leading the questioning on that occasion.

44 The Homicide Squad did not become involved in the initial investigation but on Sunday 22 June Detective Sergeant Sol Solomon spoke to Bourke, who told him that he had overheard what the Crown later relied on as an admission made by the applicant when he was speaking to his brother-in-law, Kurrle. Bourke had no note recording having overheard that statement and Solomon, in turn, made no note of being informed by Bourke that such an admission had been overheard.

45 According to Bourke the overhearing arose in this way. Having taken the applicant to a room and handed the telephone to him so that he could speak to Kurrle, the applicant commenced to talk on the phone before Bourke had departed the room. Bourke heard the applicant say "I stabbed him. I stabbed him twice". When the interview re-commenced at 4.19am, however, Bourke did not put to the applicant that he had heard him utter those words, nor was the applicant asked about that in the later interview. Kurrle was interviewed the following day by Bourke, and gave an account of the telephone conversation that he had with the applicant when the applicant was at the police station. In that statement he did not say that the applicant said to him "I stabbed him twice". Notwithstanding the difference between the account Kurrle then gave and what Bourke claimed to have heard during the very conversation that Kurrle was recounting, Bourke did not put his version to Kurrle.

46 Defence counsel sought exclusion of this evidence under s.464C and 464H of the Crimes Act 1958 and also on discretionary grounds. The learned trial judge held a voir dire in which Bourke, Kurrle and Solomon gave evidence. Kurrle emphatically denied that the applicant had said "I stabbed him twice". He said the applicant had said, "I stabbed him. I don't know if he's going to make it or not".

47 His Honour gave two rulings with respect to the exercise of his discretion in admitting the evidence of Senior Constable Bourke as to the statement "I stabbed him, I stabbed him twice". His Honour first ruled upon making an assumption that the evidence of Bourke was truthful and accurate and on an assumption that the police conduct did not involve a deliberate avoidance of the provisions of Part 3 Division 1 of Sub-Division 30A of the Crimes Act 1958. On those assumptions his Honour ruled that the evidence was admissible. After hearing the evidence given on the voir dire, his Honour ruled again that the admission sworn to by Bourke was admissible. His Honour said that having heard Bourke give evidence he concluded that his evidence was "truthful and accurate." He continued:

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54 Mr Hillman noted that there was no obligation imposed under the Act other than to provide an opportunity for a person under investigation "to communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts" (see s.464C(1)(a)). By virtue of s.464(1)(b) a right is also given for a person to communicate with a legal practitioner, but s.464C(2) distinguishes between those categories of persons, he submitted, and it is only with respect to a legal practitioner that a right of privacy is given: see s.464C(2)(b). Under that provision the investigating official "must allow the person in custody to communicate, in circumstances in which as far as practicable, the communication will not be overheard". In contrast, all that is required for a friend or relative under s.464C(2)(a) is that the investigating official "must afford the person reasonable facilities as soon as practicable to enable the person" to communicate with the friend or relative. There being no obligation of privacy for a communication with a friend then, so Mr Hillman submitted, there could be nothing unfair in the police officer in this case having overhead what was said by the applicant in his telephone conversation with his friend. The applicant had simply commenced his telephone conversation before Bourke left the room, as he was in the process of doing.

55 This interesting argument as to the relationship between s.464C and s.464H was not one which was advanced before the judge but was raised for the first time on appeal, as the result of Mr Hillman's own research for what were very thorough and helpful submissions to the Court.

56 Mr Hillman submitted that whilst the objective of s.464H was the avoidance of disputed claims that an accused person had made unrecorded admissions whilst in custody (i.e. "verbals"), the particular concern was that because the person was detained in a police station it was very difficult for him or her to successfully deny making the admission, since it was his or her word against that of police officers. In this case, however, although the applicant was in custody in a police station the applicant was not denied the opportunity to defend himself in this regard, Mr Hillman submitted, because the person with whom the applicant was speaking on the telephone was able to give evidence in his support, in denial that the admission had been made.

57 Mr Hillman submitted that Bourke's failure to put the admission to the applicant in the resumed interview was an inadvertent omission, borne of his inexperience in investigating serious crimes. He did not deliberately take advantage of the opportunity to eavesdrop on the telephone conversation; he heard the admission by chance.

58 Whilst the matters raised by Mr Hillman would undoubtedly have a bearing on the exercise of the discretion there remains the fundamental question of the fairness of reliance on the admissions when the applicant had been deprived of the opportunity to make his denial of the admission, at the first opportunity and on video tape. Bourke himself apparently considered it fair to allow privacy in that communication, yet he did not offer any explanation (save for oversight, and inexperience) for his failure to put the admission to the applicant when he resumed the record of interview.

59 Provisions such as s.464H are directed not only to the avoidance of fabricated admissions, but also to problems associated with the perception, recording, recollection and transmission to the court of the alleged admissions, and the dangers of mis-recollection and misunderstanding are also important considerations[25]. Mr Hillman conceded that it would have been better had his Honour given the reasons which he said he would later deliver. In the absence of reasons it was difficult for Mr Hillman to counter an argument that the judge had failed to take a relevant matter into consideration when reaching his decision[26]. Whilst his Honour said that there was "no non-compliance with statutory requirements" he did not say that he had regard to the spirit of s.464H, as well as its strict terms.

60 The High Court has recently considered these issues in Nicholls v. The Queen.[27], a decision which had not been delivered before this trial concluded. In that case a police officer admitted in cross-examination that he had encouraged the co-appellant, Coates, to speak off-camera and deliberately chose to continue the interview off-camera. The legislation (the equivalent to s.464H) deemed any admission to be inadmissible unless recorded on video tape, or there was a reasonable excuse for it not being recorded, or there were exceptional circumstances justifying its admission. The accused was said to have interrupted the interview by a request to stop the taping and then volunteered admissions in the course of seeking a deal with police. Upon re-commencement of the video interview no attempt was made to have the accused confirm the off-camera admissions. A majority of the Court (McHugh, Gummow, Kirby and Callinan, JJ.) held that the admissions ought to have been excluded.

61 McHugh, J. held[28] that in the circumstances there was an overpowering case for the trial judge to have excluded the evidence in the exercise of his discretion, on the basis that it was unfairly obtained. His Honour held that the legislative policy for the recording of interviews with suspects, and the avoidance of disputes about alleged admissions, should lead to that result. He held that the failure to record the admission, once taping resumed, pointed strongly to the need to exclude the admission. Importance was also attached to that omission by Gummow and Callinan, JJ.[29] Kirby, J. regarded the omission as "very troubling"[30].

62 Although in Nicholls the police actively encouraged the accused to make admissions off-tape, that is not a critical factor which distinguishes that case from the present, in my opinion.

63 The learned trial judge in his very brief reasons provides no discussion of the broader principles to which s.464H is directed and the relevance of those principles to the exercise of his discretion. That is not to say that this experienced judge did not consider these questions, but in the absence of further reasons I am not persuaded that his Honour gave them the weight that was appropriate if the discretion was to be properly exercised.

64 It is not, however, necessary to reach a final conclusion as to whether the discretion to admit the evidence was wrongly exercised because the discrete complaint made under ground 3(c) is made out, in any event, in my opinion.

65 In this case not even the standard direction was given as is appropriate for cases where the Crown relies in part on statements, made by way of admission or confession, to support its case. Usually the jury would be told that the jury must be satisfied, first, that the statement was made, at all, and secondly, that it was true: see Burns v. The Queen[31]. The absence of a direction was compounded by the fact that when his Honour summarised the addresses of counsel he did not mention the arguments made by defence counsel inviting rejection of Bourke's evidence about the admission, but did mention the prosecutor's submission that the jury ought accept that the admission was made and was the truth.

66 In McKinney v. The Queen[32], Mason, C.J., Deane, Gaudron and McHugh, JJ. held[33]:

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71 In this case, it is submitted by Mr Hillman, that this is not a confession so much as an admission to only one matter which in the end result was not a lynchpin of the Crown case. The admission was not the only evidence nor, indeed, was it a particularly vital piece of evidence. Accordingly, the significance of the warnings required in Burns and McKinney were not applicable in this case.

72 In Nicholls, Gummow and Callinan JJ. held that it was for the trial judge to decide whether a McKinney direction was required, and that it was open to him to have decided that it was not, having regard to the volume of other evidence that implicated the accused in the offence. Their Honours rejected the contention, however, that a McKinney direction was only called for if there was a "total" challenge to the police evidence, rather than just to one aspect concerning an admission[36]. Kirby, J. held[37] in Nicholls that although there was legislation throughout Australia similar to s.464H it was, in fact, a rule of the common law that required that the jury receive the warning suggested in McKinney.

73 In the end result, Mr Hillman conceded that whether or not the evidence was properly admitted this was an appropriate case for a direction to have been given as to the use to be made by a jury of the alleged admission. That concession was appropriately made. Mr Hillman submitted, however, that the proviso to s.568(1) ought be applied. He submitted that not only was it a strong Crown case, no exception was taken by defence counsel to the absence of a direction. He submitted that there was no dispute in the defence final address that the applicant had stabbed the deceased, so it made little difference whether he admitted doing so, and doing so once or twice, because the autopsy evidence established that he had been stabbed twice. I am not persuaded by that argument.

74 A trial judge has an obligation to give proper directions where there is a serious risk of injustice, and the failure of counsel to seek such directions, while a pointer to whether the risk actually existed, can not determine the question, if the Court concludes that the risk was a real one[38]. The conclusion that an injustice had not arisen would be strengthened where the failure to seek a direction was due to a rational decision by competent counsel seeking a tactical advantage[39], but in this case it is difficult to see what forensic advantage might have been gained by the defence from the omission of a direction.

75 If the jury accepted that the applicant had told his brother-in-law that he stabbed the victim twice that fact, coupled with the fact that the trial had been conducted on the basis that he did not admit saying so, would provide significant support for the Crown case, and the absence of a direction as to the approach to that evidence was significant, in my view.

76 In Nicholls, Gummow and Callinan, JJ. regarded the failure of police to invite the accused to repeat on-camera what he said off-camera as a "significant" factor in their decision that the proviso ought not be applied[40]. As Kirby, J. observed in Nicholls[41] (and so, too, here), it is impossible for an appellate court to know what weight the jury attached to the off-camera admission, and it may well have been critical to the decision. Kirby, J. concluded[42] that in these circumstances the appellate court could not be satisfied that no substantial miscarriage of justice actually occurred.

77 In my opinion, ground 3(c) is also made out. Notwithstanding the fact that the Crown case was a strong one, in my view the proviso should not be applied. That view is reinforced when regard is had to the other grounds of appeal.

Ground 5: Directions on Self-Defence and Manslaughter

78 The judge commenced his direction on manslaughter by reminding the jury, first, of the elements of murder. He said that if they had a reasonable doubt as to whether the stabbing - the fatal act - was deliberate then they would acquit on murder but they would then have to consider manslaughter. His Honour said manslaughter could arise in several ways. First, if the applicant was holding the knife, deliberately, in circumstances where someone could easily be injured. Secondly, if the stabbing was deliberate but they had reasonable doubt as to murderous intention. Then he added:

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80 His Honour explained how the Crown put its case and said the defence was that he did have the knife "out there" for self-defence, from two men who were going to jump him, or did jump him. The prosecution, he said, had to prove "it was not in self-defence to have the knife out there in that melee or fight", and if the prosecution failed to exclude self-defence "in having the knife out there in the melee or fight you would acquit him of manslaughter by unlawful and dangerous act".

81 In Zecevic v. Director of Public Prosecutions[43] Wilson, Dawson and Toohey, JJ. held that a killing which is done in self-defence is done with justification or excuse and is not unlawful, though done with intent to kill or to do grievous bodily harm. If the killing was done with murderous intention but not in self-defence then unless there was provocation, reducing it to manslaughter, it will be murder. In the absence of murderous intent it would be manslaughter. Counsel for the applicant submitted that the directions given, here, were wrong because a failure of the Crown to disprove self-defence must have resulted in acquittal both of murder and manslaughter:

82 The terms of the direction on self-defence given by his Honour with respect to manslaughter were not the same as those given with respect to murder. The directions as to self-defence for manslaughter were predicated on only being relevant where the jury was satisfied that death was caused by a deliberate act by the applicant but without murderous intention. In the manslaughter/self-defence directions the jury was directed that to establish manslaughter the Crown had to prove that in that situation the applicant was not acting in self-defence in having the knife out there in the melee, whereas for murder the relevant issue had been whether he acted in self-defence in using the knife.

83 In my opinion, if the jury had a reasonable doubt as to whether he acted in self-defence in using the knife with murderous intention then he must have been found not guilty both of murder and manslaughter. There simply could not be a finding of guilt of the lesser crime of manslaughter in circumstances where the jury had a reasonable doubt that he used the knife in self-defence but where the jury might not have a reasonable doubt whether he had the knife in his possession for the purpose of self-defence, in the first place.

84 Mr Hillman submitted that the judge correctly stated the elements of manslaughter and that his direction was necessary, because the judge could not direct the jury to acquit on manslaughter if they had acquitted on murder due to self-defence. In other words, his Honour was correctly directing the jury that they, not he, had to be satisfied as to each element of manslaughter before they could convict or acquit on that count, and thus it was they who had to evaluate self-defence with respect to manslaughter, even if they had acquitted on murder on that basis.

85 Alternatively, Mr Hillman submitted that if the direction was wrong then it did not produce a miscarriage of justice because the verdict of guilty of murder meant that the jury did not get to consider manslaughter: they had been satisfied that self-defence was negatived as to murder. That conclusion is strengthened, he submitted, by the fact that counsel saw no reason to take exception to the direction, thus counsel did not perceive any risk of a miscarriage, in the atmosphere of the trial in which the directions were given.

86 Mr Hillman referred to Gilbert v. The Queen[44], a case in which the jury returned a murder verdict against a man charged on the basis that he aided and abetted his brother, knowing his brother had murderous intention to assault someone. The jury had been directed that the alternative verdict of manslaughter was not open to them. The direction was wrong because the case had been conducted by the defence on the basis that his knowledge was that his brother merely intended to assault the victim, and if that was a reasonable possibility a manslaughter verdict was appropriate. Counsel for the respondent contended that there was no miscarriage of justice, because the murder verdict necessarily carried a finding of the higher state of knowledge, i.e. knowledge of his brother's murderous intention.

87 A majority of the Court rejected the respondent's contention, holding that they were entitled to have regard to the practical significance of the misdirection. Gleeson, C.J. and Gummow, J. held that an appellate court ought not assume that a jury would adopt "a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences"[45]. Callinan, J. held that the court had to recognise the reality that a jury room might not be a place of undeviating intellectual and logical rigour and that it was human experience that if a jury was offered a wider range of options as to its decision it might chose a lesser verdict, even if their fact finding ought to have led to the more serious verdict[46]. The minority, McHugh, J. and Hayne, J., disapproved that view of the integrity of the jury process.

88 This is a different situation to that which arose in Gilbert. In this case the jury knew that manslaughter was an option which only arose if they rejected self-defence for murder. It is difficult to see how, consistent with their oaths, a direction that reasonable doubt as to self-defence must produce an acquittal on both murder and manslaughter could have led the jury to a verdict of not guilty of both, given the fact that they rejected the defence of self-defence on the murder count. Even more difficult is it to envisage how, in the light of that fact finding, they might have arrived at a manslaughter verdict had they been given the direction that a reasonable doubt as to self-defence must have produced an acquittal on both murder and manslaughter. A jury is entitled to be given correct directions[47], but in my opinion it has not been shown that a miscarriage of justice arose by virtue of the direction given here. Even though the direction was incorrect (and somewhat confusing) it could not have affected the outcome.

89 I would not uphold the complaint under this ground.

Ground 6: "Serious injury" or "Really serious injury"

90 The elements of manslaughter by unlawful and dangerous act were set out in the three page document provided by the judge to the jury at the commencement of his charge. The fourth item directed that for the act causing death to be dangerous it must be an act that a reasonable person in the accused's then situation must have realised would expose the deceased to an appreciable risk of "serious injury". In contrast, the elements of murder set out in the document referred to intention to kill or "of doing the person really serious injury" (my emphasis).

91 On the second day of deliberations the jury asked for clarification, generally, as to manslaughter, which the judge gave, in the course of which he said "serious injury" meant not some slight injury, or minor injury, or moderate injury, or medium injury. The foreman then asked his Honour to clarify the difference between the requirement of really serious injury for murder and serious injury for manslaughter.

92 In answer to the jury's question his Honour said:

[63]

96 It follows, therefore, that there was a distinction to be drawn between the two terms. Mr Hillman submitted that in this case the incorrect direction could not have had any adverse effect on the applicant's prospects of acquittal. The direction was given with respect to manslaughter and to impose a requirement of proof as to "really" serious injury was too favourable to the defence with respect to manslaughter.

97 That argument has some force, but the difficulty is that the jury's question related both to murder and manslaughter and, in my opinion, it was important in this case that the distinction be maintained so that the jury were not at risk of treating this issue with respect to manslaughter and murder as having the same requirement as to the extent of relevant injury. There remains the risk that the jury, when it returned to its deliberations considered murder as requiring proof only as to serious injury.

98 Although counsel did not object to the directions and seek a redirection I am persuaded that this ground, too, has been made out.

Ground 4: Directions on Causation

99 His Honour directed the jury that for murder they had to be satisfied that the applicant killed the deceased. He added "I will say no more about that", and repeated that expression later. He used the same dismissive words when addressing manslaughter. Mr Priest submitted that in using that language his Honour took the issue of causation from the jury. Furthermore, he submitted, for the jury to address the defence of accident they had to decide which act caused the death so as to decide, in turn, whether the happening of that act (i.e. the wounding by the knife) was a voluntary act (i.e. not an unwilled "accident"), and whether at the moment of that act - if it was voluntary - the applicant was acting in self-defence, with murderous intention, or under provocation and whether - if considering manslaughter - it was a dangerous act in the circumstances.

100 In my opinion, there is nothing in this ground. The directions given by the judge reflected the fact that the trial was conducted on the basis that the fatal injury was known to be the wound to the side and that that wound was caused by a knife held by the applicant. Thus, although the jury had to be satisfied that causation was proved, there was no serious dispute as to that. That is the likely explanation for the absence of any exception to this direction and for the brevity of his Honour's direction. This was a trial with enough complicated issues upon which directions were required to be given, and it was both good sense and good law[52] not to give an additional elaborate direction on a matter which was not in dispute.

101 All of the defences, including accident and defences relating to the state of mind of the applicant, focussed on the happening of the act causing the wound to the side. Thus, unlike the situation in Meyers v. The Queen[53], a case where there were injuries to every part of the victim's body from multiple blows but where the act causing death may have been only one of a number of blows to the head, this was not a case where the act causing death was uncertain. The act causing death was known and the directions to the jury carried no risk of them considering the defences by reference to an act other than the fatal one. As Mr Priest conceded, the case was not fought on the basis that there might have been different intentions, or different exercises of will, as between the two acts causing injury with the knife, nor was it argued that anything might turn on the sequence in which those two events occurred.

102 I reject ground 4.

Ground 2: Cross-examination of defence witness

103 Under this ground, complaint was made that the prosecutor cross-examined the sole witness called for the defence in a way that was unjustified and unjustifiable and was grossly unfair. The judge plainly thought the cross-examination was seriously deficient because he criticised the prosecutor, in the absence of the jury, and then directed the jury to completely ignore the evidence adduced in cross-examination. It seems to me that the criticism of the prosecutor was inappropriate and was based on a misunderstanding of the purpose of the questioning.

104 The defence called Gordon Ingram, a retired senior constable of police who said he knew the deceased man from the time he had been stationed in Tallangatta. He said he had arrested Mr Hanley on several occasions. He said the deceased was very fit and strong. He had a very poor reputation in the community, Ingram said. Counsel asked him about an incident that occurred with Hanley at a supermarket in Wodonga on an occasion before Ingram had left the police force. He recounted that Hanley yelled at him in a loud voice, saying "You're fucking dead, Ingram".

105 In cross examination the prosecutor established that the police force had a system for recording threats made against members but that no entry had been made concerning this incident. Ingram agreed the event must have happened prior to November 1996, when he retired. The prosecutor then asked whether Hanley, together with his brother and a third person (both of whom she named) had made a complaint about the witness, to police at Wangaratta "some years ago". He agreed that was so. He agreed, too, that he did not like Hanley. The judge intervened and asked whether the Crown was challenging the truth of the assertion that there had been such an incident in the supermarket. The prosecutor did not answer the judge directly, nor was pressed to do so in the presence of the jury.

106 In re-examination, the witness said that he had been "bordered (sic) out" of the police force for stress and related issues and that was why he did not make a formal complaint of the threat.

107 No objection was taken to the questioning, by defence counsel. In the absence of the jury, however, he said he was at a loss to understand what was its purpose. The following day the judge criticised the prosecutor for her questioning, and suggested that she had no proper basis for impugning the evidence of the witness. The prosecutor said she could not assert that the evidence was a lie, because she did not know if that was so, since there was no record of the alleged threatening incident. She said the complaint against Ingram had been investigated but that had not led to any disciplinary action or finding against him.

108 As he made clear, the judge's opinion was that the credit of the witness was incapable of being legitimately lowered on the basis that he had been merely the subject of a complaint. That was the equivalent of asserting that being charged with an offence was proof of guilt, his Honour suggested. The judge said there was nothing improper in questions as to the failure to report the threat, but it was wrong for the prosecution to seek to undermine the witness when it had no basis for saying he was lying.

109 When the prosecutor said that the questions had been directed to the possibility of bias, the judge said that that implied that the witness was lying, although the Crown had no reason to suggest that.

110 In my opinion, it is not improper for a cross-examiner to suggest a matter to a witness which would affect his credit if admitted but which, without admission, the questioner would be unable to prove[54]. In this case the prosecutor was not seeking to prove that the witness had done the improper thing that caused complaint to be made against him by the deceased man. Rather, the question raised the possibility that the witness was biased by virtue of the mere fact that he had been the subject of such a complaint from the person whose character he denigrated in his evidence. It seems to me that it was quite proper for the prosecutor to seek to raise that possibility before the jury, given that the deceased man was himself unable to defend his reputation.

111 A trial judge has a wide discretion to disallow questions put to a witness[55] and the atmosphere of a trial, including the manner of the witness, is an important factor which an appeal court is unable to assess when considering the appropriateness of a judge's ruling. In this case the witness obviously had a history of stress-related illness and we can not know how he appeared to the judge.

112 However, assuming, without deciding, that the judge was correct in his contentions as to the inappropriateness of the questions, did the evidence give rise to a miscarriage of justice? The jury were directed to ignore the cross-examination. Counsel for the applicant contended before us, however, that the damage to the defence case had already been done and the direction to ignore the evidence could not restore the situation.

113 In my opinion, given the direction to ignore the evidence there was no miscarriage of justice. By virtue of that direction the applicant could not have lost a chance of acquittal fairly open on account of this evidence, and Mr Priest did not suggest that that would be so, in itself. He relied on this ground, merely, as one to be taken in conjunction with other grounds of appeal.

114 I would not uphold this ground.

Ground 7: Aggregation of errors

115 The final ground of appeal was a wrap-up ground drawing together the complaints under all grounds as establishing that a miscarriage of justice occurred, even if individually, no one ground established that in itself[56].

116 There is no need to address this ground further as I consider that there are several individual grounds that, of themselves, would necessitate the conviction being set aside, subject to the question of the application of the proviso.

The proviso to s.568(1) of the Crimes Act 1958

117 The onus is on the Crown to establish that the proviso ought be applied[57]. In my opinion, the errors are such that the proviso could not be applied in this case. It could not be said that no substantial miscarriage of justice has occurred, as the applicant may have lost a real chance of acquittal[58]. That is particularly so when the grounds I have upheld are taken together.[59]

Conclusion

118 In my opinion, the application for leave to appeal against conviction should be allowed, the conviction be quashed and a new trial be ordered.

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties