R v Sheehy [2003] QCA 420

Judgment (52 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] WILLIAMS JA: The appellant was convicted on 4 September 2002 after a trial before Mullins J in the Supreme Court at Maryborough of two counts of murder committed on 20 July 2000. He has appealed against those convictions, but on the hearing his counsel abandoned all grounds other than the following:

[3]

"The learned Trial Judge at the first trial and/or the learned Trial Judge at the Section 592A hearing before the second trial and at the second trial erred in failing to determine whether the Crown could show that the confession in the evening of 22nd July 2000 was voluntary."

[4]

[2] A pre-trial hearing pursuant to s 592A of the Criminal Code was held before Philippides J in November 2001. For reasons delivered on 3 December 2001 Philippides J held that the records of interview on 22 and 23 July 2000 between the appellant and Detectives Murray and Wood were admissible. One of the issues raised on that hearing was as to the voluntariness of those confessions given the provisions of s 10 of the Criminal Law Amendment Act 1894. It will be necessary to refer to that hearing in more detail later, but it is sufficient at this stage to note that it was put to police officers that the confession was in response to threats made by them. It was put to police there was a reference to beating a confession out of him and to Constable Murray that he said he would "have him thrown into an asylum and that they would throw away the key". The police officers in question denied on oath making such threats and the appellant did not give evidence.

[5]

[3] The first trial of the appellant began before Fryberg J and a jury on 11 February 2002. In the course of cross-examining police witnesses defence counsel put to them that threats had been made to the appellant prior to the relevant records of interview being recorded. Such allegations were denied. The appellant then gave evidence at that trial and he testified that he only confessed after he was threatened. Though this was not put to police officers, the appellant gave evidence that Constable Murray said the police would send him to gaol where they would organise for him to be raped. At no stage during the trial before Fryberg J did defence counsel seek to have the issue of the voluntariness of those records of interview reviewed.

[6]

[4] On 1 March 2002 Fryberg J accepted that the jury was deadlocked and unable to arrive at a verdict. He discharged the jury. For various reasons counsel intimated that a second trial could not follow at that sittings of the court and in consequence the appellant was remanded in custody for retrial at a later date.

[7]

[5] As s 62 of the Jury Act 1995 makes clear, when a jury is discharged without verdict the trial is adjourned. That clearly has the consequence that a direction or ruling given on an application brought pursuant to s 592A of the Code remains binding with respect to the second trial unless the judge presiding at that trial "for special reason, gives leave to re-open the direction or ruling" as provided for by s 592A(3).

[8]

[6] The retrial was to be before Mullins J and a jury. On 18 July 2002 counsel for the appellant applied to reopen the rulings of Philippides J on the s 592A application. In the course of argument with respect to that application Mullins J made it clear that she was aware that if in the course of the trial doubts arose about the voluntariness of the confessional statements she should reopen the ruling; that statement was made with reference to the decision of this court in R v Walbank [1995] QCA 149; [1996] 1 Qd R 78. Essentially counsel for the appellant asked Mullins J to reconsider the ruling of Philippides J in the light of the evidence which had been given at the trial before Fryberg J; it was made clear that the appellant did not propose to give evidence before Mullins J on a voir dire. The observation can immediately be made that any reconsideration of the ruling made by Philippides J would involve issues of credibility, and no judge could really decide such issues merely from reading a transcript of evidence given at an earlier point of time. That was particularly so when the submissions made it clear that the defence was not asserting that the rulings of Philippides J were wrong on the evidence that was placed before her.

[9]

[7] Mullins J canvassed with counsel why the appellant did not give evidence before Philippides J and the considered response was that it was a "tactical decision" not to do so.

[10]

[8] For reasons published on 18 July 2002 Mullins J refused to reopen the pre-trial rulings. In those reasons her Honour listed the matters which it was said constituted the basis of the involuntariness of the confessional material. She expressly recognised that s 592A "has not displaced the duty of the trial judge to determine the question of the voluntariness of a confession, when it is raised." Relevantly her Honour said:

[11]

"The applicant's evidence at the trial is now available for consideration on the issue of the voluntariness of the impugned evidence, when it was not available as evidence on the hearing of the pre-trial ruling. Although the applicant elected neither to give nor call evidence on the hearing for the pre-trial ruling, the applicant's case was apparent from the cross-examination of the witnesses of the Crown that were called at that hearing. The thrust of the applicant's case on the hearing for the pre-trial ruling about the voluntariness of the impugned evidence was in substance repeated at the trial earlier this year, supplemented with some details, some of which have been canvassed for the purpose of this application. Analysis of the applicant's evidence at the trial compared with his case on the hearing for the pre-trial ruling relating to the voluntariness of the impugned evidence reveals no significant difference."

[12]

[9] That led her Honour to conclude that there was "no basis provided by the additional evidence for finding that a special reason exists to justify reopening the pre-trial ruling." It is clear that Mullins J considered the evidence the appellant gave before Fryberg J (she was provided with page references to the relevant evidence by counsel for the appellant) and concluded that a reading of such evidence did not convince her that there was a proper basis for re-opening the question. The appellant had the opportunity of placing further evidence before the court at that stage but chose not to. Thereafter the matter proceeded to trial before Mullins J and a jury commencing on 19 August 2002.

[13]

[10] Before considering the ground of appeal further it is desirable that the evidence at the trial before Mullins J be summarised. It must be said that the prosecution case was a particularly strong one. Apart from the confessional evidence, the prosecution had a compelling circumstantial case against the appellant.

[14]

[11] There was no doubt that at about 11.20 pm on 20 July 2000 John and Julie Karami were shot dead at their residence at Lot 1, Ramsay Court, Dundathu, near Maryborough. The murders were witnessed by the seven children of the deceased couple. The children did not recognise the offender, but one provided evidence that the murderer "wore black clothing" and another provided evidence that he was wearing a "fake beard". After hearing the shots neighbours heard and saw a vehicle reversing along the driveway from the property in question. Evidence was given that it clipped a white picket fence; subsequent police investigation confirmed that a white picket fence was damaged.

[15]

[12] The deceased couple had been shot with 9mm parabellum rounds. Police noted that three discharged cartridge cases near the feet of the deceased man were contained in a black plastic object; it was made from black sticking tape and a police officer gave evidence that it was consistent with being a "case catcher" which enables the cases to be collected when the gun is fired.

[16]

[13] Julie Karami had previously been in a relationship with a Keith McKinnon, who was the father of one of the children living with the deceased couple at the time of the murders. McKinnon had engaged the appellant, who was a private investigator, to locate the whereabouts of Julie and John Karami and his child.

[17]

[14] On the morning of 20 July 2000 McKinnon's then girlfriend, Sandra Kent, went to the appellant's residence at Bribie Island. The appellant asked her to give McKinnon a message that he had been too busy to get to Maryborough. In the course of conversation at that time the appellant told Kent that he had just bought a wig and beard which he needed to dye for the purpose of conducting surveillance at Noosa on a drug dealer.

[18]

[15] About 7.00 pm that day the appellant visited Sharon Stagg at Buderim. He was then wearing long black cargo pants and a black polo t-shirt. He left there before 8.00 pm and on the evidence was next seen about 2.17 am on 21 July 2000 on Noosa Parade at Noosaville. The prosecution case was that there was time for the appellant to have driven from Buderim to Dundathu, committed the murders, and returned to Noosaville.

[19]

[16] About 5.30 am on 22 July 2000 police conducted a raid at the appellant's residence at Bribie Island. They noted that his blue Commodore motor vehicle had damage to the driver's side panels which had been covered over with a Nikko pen. The police also located a map of Maryborough and a quantity of black sticky tape inside the vehicle. A search of the house revealed the following items of relevance: a roll of black tape in the kitchen, a receipt for a caveman beard and wig, a card in the appellant's wallet on which was a list of a number of firearms including "Steyr 9mm $1,200". In the rubbish bin at those premises the police located an empty box bearing the name "Magtech" which was marked as containing 9mm Luger rounds, and a piece of paper with written directions to get to Dundathu from the Bruce Highway.

[20]

[17] Subsequent scientific testing of the appellant's vehicle revealed traces of blood consistent with coming from the deceased man.

[21]

[18] The appellant made a statement to police that day in which he said that on the night in question he had been tracking a drug dealer in the Noosa area. In the course of that activity he had reversed into a brick wall and damaged his car. He said that he had purchased the false wig and beard which he dyed to minimise the chance of being recognised while carrying out that surveillance. He said he disposed of the items in a bin at Goodwin Beach because it went stiff and clumps fell out as a result of being dyed. The appellant accompanied police to a council park at Goodwin Beach where he directed them to a bin in which police located the wig and a pair of latex gloves. While waiting there for the police photographer, the appellant mentioned to police that while doing surveillance stake out jobs he would make little ashtrays from adhesive tape in order to avoid leaving cigarette butts behind.

[22]

[19] In circumstances mentioned later the police located a 9mm Steyr pistol and ballistic testing established that it was the murder weapon. There was other evidence capable of being regarded as strengthening the prosecution case, but the foregoing is the most significant circumstantial evidence.

[23]

[20] Those pieces of evidence alone could well have constituted a sufficient circumstantial case to satisfy a jury beyond reasonable doubt that the appellant was the murderer.

[24]

[21] It is now necessary to deal with the records of interview, the subject of the challenge, and the appellant's evidence at trial.

[25]

[22] After visiting Goodwin Beach, the police and the appellant returned to the Bribie Island Police Station where, according to police, the appellant indicated he was willing to be photographed and have his fingerprints taken. That was done. They then went to Noosa to have a look at the wall that the appellant claimed he had reversed into. After that they travelled in a police vehicle back to Bribie Island. The police officers had a tape recorder running during that trip. In the course of conversation recorded by that device, the appellant spoke of threats made against him by both deceased and he asserted that John Karami had a number of weapons at his house. In the light of that the police asked some questions. It is sufficient to record here that a police officer asked: "So how did he end up dead?" The appellant's answer was: "I don't know. I never wanted to kill anyone in my life." Then in response to the question: "Did you do it?", the appellant replied: "I don't know. I don't think I did." A little later on the appellant said: "I don't know. I really don't know. I can't remember bloody killing anyone."

[26]

[23] Some time after arriving at the Bribie Island police station on the evening of 22 July evidence was given by Detective Murray that the appellant said to him: "I did it, I took a life." There was further conversation which need not be set out. A video cassette recorder was obtained and that conversation was all put to the appellant when the tapes were running and he adopted it. That recorded interview was lengthy and it is not necessary to quote extensive passages from it. The appellant admitted responsibility for the shootings. According to the appellant, after some exchange of words, John Karami produced a weird sort of pistol and said: "I told you I'm going to kill you and I'm going to take your family". According to the appellant he heard the hammer being pulled back and decided to do the "basic snatch grab." The appellant obtained the weapon and "started pulling the trigger cause I thought I was gonna be killed. ... And I just freaked out." He claimed he was fearful he would be killed. He then said that he fled the scene in his vehicle with the gun in his lap; it started to come apart so he threw it out at the first bridge he came to. He also said that on leaving the house he picked up some cartridges which were live. He said that he threw the bullets out of the car from time to time as he drove away.

[27]

[24] No gun had been found by the police at the time that statement was made. The police asked the appellant to return with them to Maryborough to show them where the gun had been thrown out and the appellant agreed. They went to a bridge over Saltwater Creek.

[28]

[25] At 9.30 am on 23 July 2000, Sergeant Reason entered Saltwater Creek and located the frame for a pistol. Apart from that he found the slide that went into the top of the pistol. There was black sticky tape on both sides of the slide. On 24 July 2000, a police diver trawled through Saltwater Creek and found the metal clip that held the whole gun together. On 25 July 2000, an SES worker was part of a team searching the approaches to the Saltwater Creek bridge and he found the barrel that belonged to the weapon the police had found in the creek. When put together the items found constituted a 9mm Steyr pistol.

[29]

[26] The black sticky tape that was found at the foot of the deceased, the black sticky tape that was found on the side of the gun, and the rolls of black sticky tape that were found at the appellant's house were of the same colour, the same width, and of the same manufacture.

[30]

[27] Though the making of the statements was proved by the video recording, the appellant contended in evidence at his trial that the confession was untrue. He asserted that he confessed as a result of threats made by Detective Murray to throw him into a mental asylum or put him into the general population in prison and organised to have him bashed and raped. He claimed that it was the police who had first made reference to self-defence, and the police who had supplied details which enabled him to make the confession. He also claimed that he had lent his vehicle to a person named Robert Lambard (known as Toad) and that Lambard had possession of the vehicle during the period 20-21 July 2000. He also made claims that Toad had told him "we did it" and that the gun had been thrown in the first creek they came to. (At the trial before Mullins J, Lambard was called as a witness by the prosecution and denied any involvement in the killings).

[31]

[28] It is of significance that at the pre-trial hearing before Philippides J it was put by counsel for the appellant to Constable Murray that he said to the appellant on the way to Noosa in the police car on 22 July: "You chucked the gun in a creek", and at the same time he "held up your fingers indicating a size of a piece of gun". Murray denied all of that and specifically denied telling the appellant at that time that "the gun was in pieces". That was also put at the hearing before Philippides J to Constable Wood and again it was denied. Finally, on that occasion it was also put to Constable Beddoes and again denied. All of that is significant because the overwhelming evidence is that the pieces of the gun were not located by the police until 23-24 July 2000. Until then there was no knowing that the gun was in pieces. That consideration must seriously damage, if not destroy, the appellant's claim that the police provided him with the information to use in his "confession".

[32]

[29] The appellant's credibility is also very badly damaged by the shifting nature of his allegations. Matters which were put to police officers at the hearing before Philippides J and denied by them were not raised again either before Fryberg J or Mullins J. At the trial before Fryberg J fresh allegations were put to police officers, and some matters put to police officers and denied by them were not referred to by the appellant in his evidence. Also the appellant gave evidence of matters not put to the police witnesses. The situation was the same in the trial before Mullins J. Again some matters were added, and matters previously relied on were dropped. In an annexure to his written outline of argument counsel for the prosecution in this court catalogued some instances of those matters; it is not necessary to refer to them in detail here.

[33]

[30] One matter specifically raised for the first time before Mullins J on 18 July 2002 should be noted. Nothing of significance was said at the hearing before Philippides J with respect to the photographing and fingerprinting of the appellant on 22 July. It was not then asserted that the appellant had not consented to that being done. At the trial before Fryberg J it was put to Constable Murray in cross-examination that the appellant did not consent to his photograph and fingerprints being taken; Murray replied that he did consent. That was not put to any other police officer at that trial. When the appellant gave evidence before Fryberg J he merely said that he was "taken in a room and photographed and fingerprinted"; nothing was said by him about lack of consent. The appellant was not then cross-examined on the issue of consent. On 18 July 2002 one of the grounds relied on before Mullins J for re-opening the question of the voluntariness of the confession was the assertion that the appellant did not consent to being photographed and having his fingerprints taken, and that, so it was said, strengthened his allegation that the confession was induced by police threats.

[34]

[31] At the trial before Mullins J the issue of fingerprinting was raised in cross-examination of Constable Wood but it was never specifically put to him that the appellant did not consent to that, or said or did something which indicated lack of consent. The issue was not raised in cross-examination of Constable Beddoes. Again it was raised generally in the cross-examination of Constable Murray but again nothing specific was put. The highest point in cross-examination of Murray on this issue was the following: "Are you serious when you tell this Court my client consented to his fingerprints being taken?", to which Murray replied, "Yes." In evidence-in-chief the appellant was asked whether he consented to being photographed and fingerprinted and he replied: "No. I was told." The matter was not taken further.

[35]

[32] Again all of that indicates that one must have serious reservations about the credibility of the appellant's allegations against the police. If he was coerced against his will into being fingerprinted and photographed one would think that the issue would have been raised at an earlier point of time and in a more specific way.

[36]

[33] The legal principles relevant to the determination of the critical question in this case are discussed in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512. There Gibbs CJ and Wilson J said at 523:

[37]

"Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary ... . We are not to be taken as suggesting that the trial judge must hold a voir dire on every occasion when a confession is tendered, or that he is bound to accede to an application made for a voir dire when there is nothing to suggest that a real question of voluntariness, unfairness or impropriety arises, for it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition, or as a means of testing in advance the evidence of the Crown witnesses."

[38]

"The applicant was not given an opportunity to test the question of voluntariness on a voir dire, and, if he wished, to give evidence in support of his suggestions, so that there was no proper determination of the question."

[39]

"In holding a trial within a trial, a judge is not engaged in an inquisitorial procedure. He requires the parties to produce at that stage of the trial whatever relevant evidence they wish to produce bearing upon the admission of the confession."

[40]

[34] Here the appellant had full opportunity of raising issues relevant to the voluntariness of the confessional statements on the s 592A hearing before Philippides J. He had the right to give evidence; there was an obligation on him to raise at that stage all relevant material enabling the court to make a proper determination on the issue of voluntariness. This is not a case where that question was not properly tested. He cannot complain if, for tactical reasons, he then withheld relevant material from the court.

[41]

[35] In my view it was appropriate for both Fryberg J and Mullins J to admit the records of interview pursuant to the ruling of Philippides J unless and until there was cogent evidence raising a real question as to the continuing correctness of that decision.

[42]

[36] Nothing was placed before Mullins J on 18 July 2002 which warranted her reversing the ruling of Philippides J. Further, the appellant's evidence at trial before Mullins J, though it went somewhat beyond the evidence given on previous occasions, was still within the general ambit of what had been raised before Philippides J. It did not constitute "special reason" within s 592A(3) for re-opening the earlier ruling.

[43]

[37] The evidence of the appellant as to alleged threats by the police, and the question whether he was detained by the police at material times, were matters properly before the jury; it was for the jury ultimately to determine whether or not the confessional statements should be accepted as correct and what weight should be attached to those statements as part of the proof of the prosecution's case (see, for example, per Mason J at 536 and per Brennan J at 542 in MacPherson). That was done in this case.

[44]

[38] The ground of appeal relied on has not been made out and it follows that the appeal should be dismissed.

[45]

[39] MUIR J: Except in one minor respect, I agree with the reasons for judgment of Williams JA. On the question of the continued operation of a ruling under s 592A of the Criminal Code, I prefer to base my conclusion on the construction of that provision rather than on the view that a jury trial, once embarked upon, continues even after the discharge of the jury first empanelled.

[46]

[40] Section 592A is a procedural provision, the purpose of which is to facilitate the progress of criminal trials by permitting a judge to give pre-trial directions or rulings. I use the expression "trial" in the sense of the proceeding which takes place on and after the empanelment of the jury. Such directions or rulings are binding unless the trial judge "for special reason, gives leave to re-open the direction or ruling".[1]

[47]

[41] Under s 592A(1) a direction or ruling "as to the conduct of the trial" may be given once an indictment has been presented. "The trial" in the subsection and elsewhere in the section is a reference to the trial of the accused in respect of the offences charged on the indictment. That, I consider, accords with the literal reading of s 592A. I can see no justification for construing "the trial" as meaning "the first trial to commence after the giving of any such direction or ruling".

[48]

[42] Plainly, "the trial" need not be before the judge who made the direction or ruling. The section surely accommodates the commonplace possibility of the discharge of a jury and a subsequent trial before a different jury.[2] On the other hand, there is no sensible purpose to be served by limiting the application of directions and rulings under the section to the first proceedings before a jury after the giving of the direction or ruling.

[49]

[43] I agree that the appeal should be dismissed.

[50]

[44] HOLMES J: I have had the advantage of reading the reasons of Williams JA. I respectfully agree with his Honour's reasoning and conclusions in all respects, except this: I prefer not to reach any concluded view as to whether a section 592A ruling or direction remains binding upon a retrial. That is simply because the point was not argued to any real extent before us, Mr Rafter preferring to rely on an argument that the ruling should have been re-opened for special reason.

[51]

[45] I agree that the appeal should be dismissed.

[52]

[2] A possibility contemplated, for example, by s 593 of the Criminal Code.

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Judgment (52 paragraphs)

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