Court of Appeal (Qld)|2014-09-30|Before: Fraser and Gotterson JJA and Jackson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Fraser and Gotterson JJA and Jackson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR
INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED
– where
the appellant Stewart and the appellant Garcia were each found guilty after
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE ORINSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED– wherethe appellant Stewart and the appellant Garcia were each found guilty aftertrial of two counts of murder – wherethe prosecution was unable to saywhether the killer was Stewart, Garcia or an identified third person –where the prosecutionrelied on the party provisions in the Criminal Codeto prove guilt – whether the verdicts of the jury were unreasonable orcould not be supported by the evidenceCRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITHDISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS– SEPARATETRIALS AND ELECTION – where before the trial Stewart applied to be triedseparately from Garcia – whereGarcia had implicated Stewart in theoffences in a police interview that was tendered at trial, but Stewart had notsought to blameGarcia for the offences – where Garcia’s interview
was not admissible against Stewart, but Stewart argued it was too
difficult for
the jury to ignore – whether the pre-trial judge erred in ordering a joint
trial because there was a real risk
that the jury would use the evidence of the
police interview impermissibly even if a trial judge gave proper
directions
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT
TRIAL OF SEVERAL
PERSONS – where Garcia had implicated Stewart in the offences in a police
interview – where that and
other evidence was admissible against Garcia
but not admissible against Stewart – where on virtually each occasion such
evidence
was adduced at trial the jury was told the evidence was not admissible
against Stewart – whether the directions were sufficient
to avert any risk
that the jury would misuse the evidence admitted only in the case against Garcia
adversely against Stewart
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where the appellant Stewart and the appellant Garcia were
each found guilty after trial of two counts
of murder – where each of
Stewart and Garcia was sentenced to life imprisonment, with a non-parole period
of 25 years in respect
of both counts – where the trial judge regarded the
statutory minimum non-parole period of 20 years insufficient given the
circumstances, including the serious level of malice and violence and the
appellants’ attempts to avoid detection – whether
the increases in
the non-parole periods made the sentences manifestly excessive
Criminal Code 1899 (Qld), s 7(1)(b), s 7(1)(c), s 8,
s 305(2)(a)
Ali v The Queen (2005) 79 ALJR 662
[2005] HCA 8,
considered
Crampton v The Queen (2000) 206 CLR 161
[2000] HCA
60, applied
Dhanhoa v The Queen (2003) 217 CLR 1
[2003] HCA
40, cited
MFA v The Queen (2002) 213 CLR 606
[2002] HCA 53,
cited
R v Belford & Bound (2011) 208 A Crim R 256
[2011] QCA
43, considered
R v Brennan [2013] QCA
316, considered
R v Callaghan [1994] 2 Qd R 300
[1993] QCA
419, cited
R v Lam (2008) 185 A Crim R 453
[2008] VSCA 109,
cited
R v Roberts & Pearce [2012] QCA
82, cited
R v Roughan & Jones (2007) 179 A Crim R 389
[2007] QCA
443, cited
R v Smithers [2013] QCA
90, considered
SKA v The Queen (2011) 243 CLR 400
[2011] HCA 13,
cited
Judgment (184 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED - where the appellant Stewart and the appellant Garcia were each found guilty after trial of two counts of murder - where the prosecution was unable to say whether the killer was Stewart, Garcia or an identified third person - where the prosecution relied on the party provisions in the Criminal Code to prove guilt - whether the verdicts of the jury were unreasonable or could not be supported by the evidence
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION - where before the trial Stewart applied to be tried separately from Garcia - where Garcia had implicated Stewart in the offences in a police interview that was tendered at trial, but Stewart had not sought to blame Garcia for the offences - where Garcia's interview was not admissible against Stewart, but Stewart argued it was too difficult for the jury to ignore - whether the pre-trial judge erred in ordering a joint trial because there was a real risk that the jury would use the evidence of the police interview impermissibly even if a trial judge gave proper directions
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS - where Garcia had implicated Stewart in the offences in a police interview - where that and other evidence was admissible against Garcia but not admissible against Stewart - where on virtually each occasion such evidence was adduced at trial the jury was told the evidence was not admissible against Stewart - whether the directions were sufficient to avert any risk that the jury would misuse the evidence admitted only in the case against Garcia adversely against Stewart
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant Stewart and the appellant Garcia were each found guilty after trial of two counts of murder - where each of Stewart and Garcia was sentenced to life imprisonment, with a non-parole period of 25 years in respect of both counts - where the trial judge regarded the statutory minimum non-parole period of 20 years insufficient given the circumstances, including the serious level of malice and violence and the appellants' attempts to avoid detection - whether the increases in the non-parole periods made the sentences manifestly excessive
[5]
Criminal Code 1899 (Qld), s 7(1)(b), s 7(1)(c), s 8, s 305(2)(a)
Legal Aid Queensland for the appellant/applicant Stewart
[19]
Director of Public Prosecutions (Queensland) for the respondent
[20]
[1] FRASER JA: The appellants were found guilty by a jury of the murders of Alexander ("Sandy") Davie and his wife Suzanne ("Sue") Davie and related offences of burglary and arson. Sandy and Sue Davie operated "SSS Security", which supplied security patrols at their clients' premises. Sandy Davie conducted mobile patrols and he also conducted a mobile patrol as a contractor for another security business, "CJ Security". Sue Davie monitored clients' premises remotely from the Davies' home or business office. Sandy Davie was killed while he was patrolling a recycling business at Burleigh Heads on the Gold Coast known as "One Steel" on the night of Sunday 3 May 2009. Some hours later his car was found alight in the Gold Coast hinterland. Sue Davie was killed at their home in Robina on the same night. There were signs of an attempt to break into a safe at the house. The prosecution was unable to say whether the killer was the appellant Stewart, the appellant Garcia, or a third person, Ward (who had died before the trial). The prosecution relied upon the party provisions of the Criminal Code to prove guilt. The prosecution case was that Sandy Davie was killed first, the offenders stole his keys so that they could steal from the Davies' house, the offenders subsequently attempted to break into the safe, and the offenders killed Sue Davie because she could have identified them.
[21]
[2] Each appellant appeals against their conviction and seeks leave to appeal against the trial judge's order setting a minimum pre-release period after serving 25 years of the mandatory sentence of life imprisonment.
[22]
[3] Stewart relies upon three grounds of appeal against conviction: Atkinson J erred in refusing Stewart's pre-trial application for a separate trial from his co-accused Garcia and that refusal resulted in the miscarriage of justice; the trial judge Martin J, failed to adequately direct the jury about the impermissibility of using Garcia's statements in Stewart's trial; and the verdicts of the jury are unreasonable, cannot be supported on the evidence and are therefore unsafe and unsatisfactory. The grounds of Garcia's appeal against conviction are that the verdict is unreasonable and cannot be supported by the evidence, and that the jury were not instructed as to how Garcia's police interview of 28 May 2009 could be used.
[23]
[4] I will first consider each appellant's ground of appeal that the verdicts of the jury are unreasonable. The Court's task under this ground is to make "an independent assessment of the evidence, both as to its sufficiency and its quality" and "to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the [appellant] was guilty of the offences with which he was charged"; the Court must make an independent assessment of the whole of the evidence to determine whether the verdicts of guilty can be supported.[1] In MFA v The Queen[2] Gleeson CJ, Hayne and Callinan JJ approved the formulation of the relevant question as being whether "it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant" and observed that:
[24]
"The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
[25]
'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.'"[3]
[26]
[5] Since neither appellant gave or called evidence, the question in the case of each appellant is whether, upon the whole of the evidence in the Crown case, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.
[27]
The killing of Sue Davie and the burglary at the Davies' house
[28]
[6] Sandy and Sue Davie's son, Alexander Davie, called police on Tuesday 5 May after he had gone to his parents' house and found that it was locked. (Alexander Davie worked for his father in the SSS business two days a week, on Tuesdays and Thursdays). A police officer, Percival, met Alexander Davie at the house and found that there was nothing open by which he could gain entry. He arranged for a locksmith to attend the house and open a door. Percival and another police officer, Flack, entered the house and found the body of Sue Davie in a bed in the main bedroom. Sue Davie had been struck with a claw hammer and stabbed. The appellants formally admitted at the trial that she had sustained numerous injuries and that she died as a result of blood loss related to those injuries, particularly her head injuries and stab wounds. The main bedroom and other parts of the house had been ransacked. Percival and other police officers subsequently attended at the SSS Security office at Robina and found that the office did not appear to have been disturbed.
[29]
[7] A police officer, Manktelow, attended the Davies' house with other officers on 5 May 2009 and took samples from within the bedroom in which Sue Davie was found, and from other areas. The samples included swabs taken from two latex gloves and the claw hammer with which Sue Davie had been struck and stabbed. Manktelow gave evidence that the hammer was found underneath Sue Davie's right arm and that the gloves were found on the floor next to the bed. Another police officer, Kwaitkowski, attended the Davies' home on 6 May 2009. He also examined the house and collected various samples, including of stains, which on an indicative test appeared to be blood stains. The office in the house had been ransacked, with doors and drawers left open and items strewn on the floor. The sunken lounge in the house was in a similar state, with furniture tipped over and items strewn on the floor. Kwaitkowski returned to the house on 7 May and examined additional areas including the garage and two motor vehicles. There was a large floor safe in a corner of the garage. In the ceiling near the safe there was a manhole, with the manhole cover missing and a small step ladder beneath the manhole. A screwdriver was lying on the floor near the safe. Kwaitkowski took a sample from the handle of the screwdriver and from the handle on the safe.
[30]
[8] Kwaitkowski noticed that the rear passenger door of a Jaguar car in the garage was open. He found blood staining on the handbrake, from which he took a sample. The glove box and the centre console lids were open. There was a Hyundai Getz car on the front driveway. Alexander Davie gave evidence that this was one of two cars used in the business, the other car being a Hyundai Elantra. His father was in the habit of driving the Elantra. Kwaitkowski took various samples from the Getz. Another police officer, Jones, attended at the Davies' home on 8 May 2009. He gave evidence that he saw overturned furniture and what appeared to be blood on a balustrade in the sunken lounge area of the house. He took a sample of that blood.
[31]
[9] A forensic scientist, Caunt, gave evidence that an incomplete or partial DNA profile obtained from the blood found on the handbrake of the Jaguar car matched Sandy Davie's DNA profile, with the probability of that profile occurring had the DNA come from someone other than and unrelated to Sandy Davie being about one in 180 million. She gave evidence that a full DNA profile obtained from the sample of blood taken from the balustrade within the house matched the DNA profile of Sandy Davie, with the probability of that profile occurring had the DNA come from someone other than and unrelated to him being about one in 7,200 billion.
[32]
[10] The safety officer at One Steel, Reynolds, gave evidence that on Tuesday 5 May 2009, the first working day after the Labour Day long weekend, he arrived at the One Steel premises at about 8.10 am. He found the body of Sandy Davie in a toilet cubicle, lying in a pool of blood with his hands cable tied behind his back. The police were called and they took control of the crime scene. A police officer, Gorman, attended at One Steel premises with other police officers. The body of Sandy Davie was lying in the toilet cubicle with his feet protruding out of the cubicle into the adjacent hallway and his head adjacent to the toilet bowl. His hands were restrained behind his back with two intertwined plastic zip ties. There was blood on the toilet bowl, on the floor around the body, on the body, and on the deceased's clothes.
[33]
[11] There was a mobile phone sitting in the water in the toilet bowl and shredded pieces of a CJ Security business card near the body. Sandy Davie was wearing a utility belt with an "accoutrement pouch", which Gorman described as being something which would normally be used as a mobile phone pouch. This pouch would fit a variety of phones, including the phone that was found in the toilet. With reference to photographic exhibits (exhibits 77, 78 and 79), Gorman described the pouch. It was opened by lifting a flap. The tape lift Gorman used to take a sample for DNA analysis focussed on the area on top of the flap and underneath the flap, which would potentially be grasped to lift the flap, and on both sides of the velcro which secured the flap to the pouch itself. The velcro tabs were on the inside of the flap and the pouch itself. This evidence suggested that the area from which the sample was taken would likely be contacted only by the thumb or fingers of a person opening the flap.
[34]
[12] Gorman described an incision behind the left ear of the deceased and cuts to the clothing around the left shoulder. Written in blood on the inner door of the toilet, in strokes about the width of a finger, were the characters "DOG". The circuit breaker switch for the security lights at the One Steel premises was in the "off" position (the other three circuit breaker switches in the same meter box being in the "on" position). Evidence was given by employees of One Steel that these lights were activated by movement. The branch manager for One Steel, Hickman, gave evidence that employees were not permitted to operate those lights. No one was to go near them and he understood that the lights were operating properly before the Labour Day long weekend. When he arrived at the premises on Tuesday 5 May at around 6.30 am he noticed an "SSS Security" tag had been left in the door to his office, indicating that security services had been provided over the long weekend. Gorman took swabs and samples for later analysis from various places including the deceased's utility belt on the attachment designed to hold a mobile phone, the toilet light switch, door handles, the "off" circuit breaker switch, and each of the letters "DOG" written in blood.
[35]
[13] The forensic scientist gave evidence that each of those samples gave a full DNA profile which matched the DNA profile of Sandy Davie. She estimated that the probability of those DNA profiles occurring if the DNA had come from someone other than and unrelated to Sandy Davie was approximately one in 7,200 billion for each of the profiles. Samples taken from the outer surfaces of four "keepers" of the utility belt gave full DNA profiles which matched the DNA profiles of Sandy Davie, and that the probability of those DNA profiles occurring if the DNA had come from someone other than and unrelated to him was approximately one in 7,200 billion.
[36]
[14] A DNA profile matching the DNA profile of the appellant Stewart was found in the sample taken from the pouch on the utility belt. A DNA profile obtained from the pouch on the utility belt indicated DNA from two people contributing in approximately equal proportions. The forensic scientist assumed that Sandy Davies' DNA profile would be present because he was wearing the pouch, so she subtracted his DNA profile from the mixed DNA profile. That left an incomplete or partial DNA profile which matched the DNA profile of the appellant Stewart. The probability of the partial DNA profile occurring if it had come from someone other than and unrelated to Stewart was approximately one in 880 million. Alexander Davie gave evidence that Sandy Davie owned one utility belt and had been wearing it for years. Paul Robertson gave evidence that he had known Sandy Davie since about 2004 or 2005 and had seen him doing patrols at the Gold Coast. Sandy Davie always wore the utility belt on mobile patrols.
[37]
[15] In cross-examination the forensic scientist said that: DNA can last for years, even centuries, in the right conditions, particularly if the item on which DNA is found is not regularly washed or exposed to harsh UV light; sometimes degradation of a sample of DNA over years or over time will result in a partial profile; DNA can be put on an object by "secondary transfer" (someone leaving DNA on an item, someone else picking up the item in the same place, and that person then touching something else to which the DNA might be transferred); and there was no way of telling whether DNA had found its way onto an item by secondary transfer. In re-examination, she identified the "right conditions" in which DNA might last for years she referred to the relevant item being kept at a "nice temperature, out of sunlight, it's not wet, it's not exposed to harsh chemicals...".[4] Weather conditions, UV, moisture, humidity in the air, or rain would degrade the DNA. Cleaning or rubbing would remove the majority of DNA. Ms Caunt gave an example that if she had a watch, the more she wore that watch the more she would rub off DNA that might belong to somebody else.
[38]
[16] Making allowance for a time discrepancy shown on CCTV footage taken at the One Steel premises, the footage showed headlights arriving in the driveway at One Steel at 9.59 pm on Sunday 3 May 2009. The resident unit manager at an apartment complex at Burleigh Heads, Sutcliffe, gave evidence that as at May of 2009 CJ Security was contracted to provide the security to that apartment complex. It had a security system which made electronic logs. CJ Security had a key which would be identified by the electronics security system if it were used at the complex. A document printed out from the computer operating the security system recorded that at 9.30 pm on 3 May 2009 that key was used to enter the complex through a back door, and to exit the complex at 9.36 pm. The key was not used again on 3 or 4 May. This evidence was consistent with the headlights shown on the One Steel CCTV footage at 9.59 pm being the headlights of Sandy Davie's car arriving after he had completed his security round at the apartment complex. The One Steel CCTV security footage also showed movement around the toilet block where Sandy Davies' body was found, and it showed headlights moving away from the driveway at 10.10 pm.
[39]
[17] The appellants acknowledged that evidence in the prosecution case (including evidence from employees at a motel and motor inns, phone records and CCTV footage) established that the appellants were in Queensland and close to the crime scenes at relevant times.[5] At the trial the appellants admitted that exhibit 64 accurately summarised the records of telephone companies as to calls made and received by identified telephone numbers, including a mobile phone number subscribed to and usually used by Garcia, a mobile number subscribed to Garcia and usually used by Stewart, a mobile phone number subscribed to and usually used by Ward, and a landline number subscribed to Sandy Davie at his house in Robina. Exhibit 64 recorded a telephone call made by Garcia's mobile phone to J M Robertson on 3 May 2009 from 22:12:52 for about five minutes using an identified mobile phone tower. A technical specialist for Optus Communications who specialised in mobile communication, Cowan, gave evidence that the identified tower had three antennae which covered three different sectors or cells around the tower. That area included the area of the One Steel premises. An earlier phone call attributed to Garcia's mobile phone on the same day, at about 7.30 pm, was made using a different antenna on the same tower, which covered the area immediately adjacent to the area covered by the antennae used in the later phone call. Cross-examination established that the area comprehended by the antennae extended along a road for about five kilometres.
[40]
[18] A police officer, Corby, gave evidence that there was a security camera, facing towards the Davies' house, located at a house more or less directly opposite. Footage from that camera was tendered in evidence (Exhibit 63). That footage showed what appeared to be the headlights of a vehicle driving into the driveway of the Davies' house at 10.21 pm on 3 May 2009 and leaving at 12.06 am the following morning.
[41]
[19] Chisholm gave evidence that at about 1.50 am he was driving on a road near Springbrook. He saw off the side of the road a car with a fire inside it. He stopped and looked in the car and saw that the seats were on fire. The appellants formally admitted at trial that this was Sandy Davie's Elantra. In cross-examination Chisholm said that at that time of night it took about 40 minutes to drive from the location of the burning car to Hope Island. Similar evidence was given by McDonald. When he stopped and looked at the car, at sometime after 2.00 am or somewhere around about 2.15 am, he saw that both the inside of the car and a bit on the outside of the car were on fire.
[42]
[20] CCTV footage obtained from a shop at Hope Island showed Garcia and Ward at the shop at 2.00 am on 4 May 2009. Stewart and Garcia acknowledged that Garcia and Ward were shown in the footage.[6] Mr Robertson identified a person shown on the footage wearing a black t-shirt with the word "Security" as Ward. Police found three similar black t-shirts at the property where Stewart and Garcia appeared to be living in Melbourne.
[43]
[21] Doctor Jacobs gave evidence that on 30 May 2009 she attended at the Southport Watch House. Upon her examination of Stewart, she observed that on the back of his right hand there was an area of redness which affected four fingers and the thumb. The redness extended over the base of the thumb down the side of the hand to the wrist. Photographs of the injury were tendered in evidence. Dr Jacobs said that Stewart told her that at a barbecue about two or three weeks before this examination someone had poured petrol onto the wood which had resulted in flames burning him on his hand. Doctor Jacobs expressed the opinion that the injury could be explained by a healing burn some two or three weeks after a burning incident. She said that it was also consistent with a healing burn some 26 or so days after an incident. In cross-examination by Stewart's counsel, Doctor Jacobs said that Stewart's explanation could explain the redness she had seen on the back of his hand. In re-examination Doctor Jacobs said that there was nothing about the injury that limited it to having occurred in the course of a barbecue as opposed to coming into contact with a flame in some other way.
[44]
[22] Alexander Davie gave evidence that Stewart worked for SSS Security in 2006. At that time there was a safe in the garage which contained firearms. Stewart kept firearms in the safe. On numerous occasions Alexander Davie had seen Stewart go to the garage and return wearing a side arm. Another witness, Chadburn, who formerly owned a security business on the Gold Coast, gave evidence that both Garcia and Stewart worked for SSS about 15 or 16 years before he gave evidence.
[45]
[23] Chadburn gave evidence that shortly after Stewart's and Garcia's employment with SSS Security ceased each of them served a period of "some months incarceration."[7] Chadburn said that he saw Stewart and Garcia shortly after they were released from incarceration. He gave the following evidence:
[46]
"And were they - did they ever say anything about Sandy Davie on those occasions?-- Yes, on numerous occasions, well, that they were going to get him, get his work. I just thought it was a bit of a sort of a joke.
[47]
Well, what, if anything, did they do to make you think that they were joking?-- Well, on one occasion Vladimir, the Russian, said that, 'We caught up with Sandy Davie and Cameron" - Cameron Stewart - "leaned out the window with a shotgun and was going to blow him away", but after much screaming and abuse going down the road he said, "I pulled him and said he was 'chicken'", explicit.
[48]
What was the tone of voice when they were saying things like that they were going to get him?-- It was meaningful. At first I didn't take much notice of it, I just looked and thought, "Oh, yeah." But then the tone went down and they looked at each other and they just looked at me, and I just walked away.
[49]
And are you able to speak anything about their body language?-- Yes, it was a meaningful body language if anybody understands body language. The gestures were there, the raised eyebrows. If you wrote it down there'll be punctuation marks. It was meaningful.
[50]
Are you able now to recall any of the words that were actually used when they were saying these things?-- "We'll just get him", and I -again, I just looked and initially I said, "Well, I don't quite understand. You want his work. If you do", I said, "price it up accordingly and you should get it." And, again, I just walked away shaking my head, thinking, "Oh God, what are you going to do.""[8]
[51]
[24] Chadburn gave evidence that Sandy Davie was known in the industry to have a habit of carrying a firearm or firearms, but that changed approximately four days before his death, when the Police Department sent a circular to security companies stating that firearms were only to be carried for cash in transit. In cross-examination Garcia's counsel put to Chadburn a statement Chadburn had made to police in May 2009:
[52]
"I suggest that in that statement you said, paragraph 28: "I recall them saying to me, 'If it takes us a lifetime we will kill the bastard.' They were both laughing when they said this. I told them both to grow up and walked off"?-- That is correct.
[53]
That's what you said to the police in that statement?-- Yes.
[54]
And then the conversation you had with Mr Garcia about Mr Stewart pulling a shotgun out, Garcia said to you that, what, they were driving along the road and Stewart pointed a shotgun at Mr Davie?-- That's what he said.
[55]
And there was much abuse between the two parties, I-----?-- I presume so, yes-----
[56]
--- --take what you mean?-- -----because he was saying that - he was side by side.
[57]
All right. So they were abusing each other and then he said he pulled Mr Stewart back in?-- Yes.
[58]
And called him a chicken or something?-- Yeah, they just went their separate ways, you know."[9]
[59]
[25] In cross-examination by Stewart's counsel, Chadburn agreed that, as he had told police in his statement, the comments which he attributed to Stewart and Garcia were made before they went to prison. Chadburn denied the suggestion by Stewart's counsel that Stewart did not make any threats or comments about getting Sandy Davie. Chadburn said that Stewart made threats or comments virtually on the same lines as those made by Garcia. Chadburn responded to a question whether he had taken the statement seriously by observing that, "[w]orking the streets, no, I didn't... But it was there... Made you think." He agreed that it only became significant to him afterwards, when the police saw him in May 2009. In re-examination, Chadburn said that Stewart and Garcia said to him on two or three times, and in different tones, that, "[i]f it takes a lifetime we will kill the bastard", and they were both laughing when they said that.
[60]
[26] Carol Robertson gave evidence that she was the mother of Paul Robertson and the birth mother of Ward, who was adopted out as a baby. She had remained in contact with Ward. In 2009 she was in telephone contact with him once or twice per week. She had met Sandy Davie. She knew Garcia. She kept in contact with him. She had known Stewart for eight or nine years by 2009. She knew that Garcia knew her son Ward. Carol Robertson said that on either 25 or 26 April 2009 Garcia visited her house and stayed for a short talk. Carol Robertson referred to a family barbecue at her house on Sunday 3 May 2009. She had been drinking during the day and was "slightly inebriated" and "very tired".[10] She could not remember receiving a phone call on the landline at about 10.12 pm but she had been told about it.
[61]
[27] After Garcia was arrested in Melbourne and brought back to Queensland, he telephoned her from prison and asked her to visit him. She went to the prison with her son Paul. Garcia told her that he had telephoned her. She asked him what he had said. Garcia said something to the effect of, "It had all gone wrong. It was all messed up"; Garcia explained that he had said that to her because she had asked him why he was still in Queensland, when she had thought that he had gone back to Melbourne after Anzac Day.[11] In cross-examination by Garcia's counsel, Carol Robertson agreed that Ward was in significant financial trouble in the latter part of 2008 and the early part of 2009 and had been borrowing money from motorcycle clubs. She agreed that when she spoke to Garcia in the prison on 14 June 2009 Garcia told her that Ward was dead, and this upset her.
[62]
[28] Paul Robertson gave evidence that around 2009 and in the years leading up to that time he was in contact with his half-brother Ward. Paul Robertson knew Stewart and Garcia through working in the security industry on the Gold Coast. He also knew Sandy and Sue Davie. Paul Robertson gave evidence that Sandy Davie always wore a utility belt of the sort Sandy Davie wore when he was killed. Sandy Davie was also in the habit of carrying guns. Paul Robertson said that when, after the Labour Day weekend, he heard about the deaths of Sandy and Sue Davie, he telephoned Garcia to let him know. Garcia said that Sandy Davie "must have pissed someone off".[12] Paul Robertson asked Garcia to tell Stewart, because he had also worked for Sandy Davie. Paul Robertson gave the following evidence of his conversation with Garcia at the prison on 14 June 2009, after his mother had become upset at something that was said:[13]
[63]
"And what, if anything, did Vladimir Garcia say?-- The fact that apparently everything went, sort of, wrong.
[64]
What was "everything"?-- Apparently the things - well, on the Labour Day long weekend, [Stewart] and him and my half brother.
[65]
Anthony?-- Yes. Apparently they had something that went on. Everything went wrong apparently and that's when [Stewart] and [Ward] apparently had done - actually had killed Sandy - not Sandy, Sue sorry, to start with.
[66]
When you say "The three of them had something that went on", did he say in any more detail what it was that they were intending?-- They were trying to apparently set - trying to take - trying to rip off S.S.S. Security and take the safes.
[67]
You say that Sue was killed, did [Garcia] say where he was when Sue was killed?-- He was apparently at One Steel.
[68]
And did he say anything else about One Steel?-- That he did see a S.S.S. car on sight [sic] and [Stewart] and my half brother apparently turned up, went inside. He said there was a rather large bang and that's when the two of them came running out."
[69]
[29] Paul Robertson gave evidence that his mother asked Garcia about a phone call which she had apparently received on the Sunday night of the Labour Day long weekend, to which Garcia told her: not to worry about it, she was drunk, and he could not understand her. In cross-examination by Garcia's counsel, Paul Robertson agreed that Garcia had said that only Ward and Stewart "had organised to do SSS Security over and rip the safe off"; Garcia told Paul Robertson that "things had gone wrong", that Sue had been killed by Stewart and Ward while Garcia was at One Steel, and then Stewart and Ward got to One Steel, they went in, and then something happened in there.[14] Paul Robertson denied that Garcia had not said that he was at One Steel, he denied that Garcia had merely told him what he (Garcia) said he had been told by Stewart and Ward, and he denied that Garcia had not admitted telephoning Carol Robertson on 3 May 2009.
[70]
[30] An officer of the Victoria Police Force, Birch, recorded the conversation he and another police officer, Anastasiadis, had with Garcia at Garcia's house in Melbourne on 14 May 2009. Before the interview was played to the jury, Stewart's counsel stated that the evidence was not admissible against Stewart, the prosecutor accepted that it was admissible only against Garcia, and the trial judge directed the jury that it was not admissible and it could not be used by the jury with respect to any other charges against Stewart.
[71]
[31] Garcia told police that he had learned about the deaths from his friend Paul, with whom he used to work for Sandy. Garcia told police that Sandy Davie had blamed Garcia and Stewart for a hand gun which had gone missing out of Sandy Davie's house. Sandy Davie had rung and threatened everyone that he was going to kill them all if his hand gun was not returned. Garcia told the police that he had told Sandy Davie that he had not stolen his gun and said to him "you're going to get fucked".[15] Garcia told police that he and Stewart had gone to the Southport Police Station and made a statement, that the Southport police had come to his house and looked around, and "[n]ext minute I'm a bad guy...".[16] Garcia said that Sandy Davie's own son was in a bikie gang. Garcia said that "I did time because of Sandy": he got arrested for break and enter with a shotgun and stayed in a maximum security prison for six months. That was on remand. There was no conviction.
[72]
[32] Garcia said that he supplied security guards to Sandy Davie in 2006 for about four months, and that stopped when the hand gun went missing. Garcia said the last time he had contact with either Sandy or Sue Davie was in 2006, when Sandy Davie paid him on the night Garcia and Stewart reported Sandy Davie and his missing gun to the police. Garcia said his relationship with Sue and Sandy Davie started off excellent but changed when Sandy Davie started accusing everybody. It was Stewart who introduced Garcia to Sandy and Sue Davie, as Stewart was already working for Sandy Davie.
[73]
[33] Garcia said he last visited the Gold Coast on Anzac Day, when he met Paul and Carol Robertson. He stayed for just under a week and then he and his mate went to Tamworth and stayed at Split Rock Dam. Garcia said that Stewart went with him to Queensland, they stayed at the Coomera Motel, they then stayed at Split Rock Dam for a few days, and then Garcia came home to Melbourne. There was no phone reception at Split Rock Dam.
[74]
[34] A police officer, Hickey, gave evidence that Garcia was interviewed at the Coomera Police Station in Queensland on 22 May 2009. Before the recorded interview was played to the jury the prosecutor stated that this evidence was admissible only against Garcia. The trial judge directed the jury to bear in mind that it related only to Garcia.
[75]
[35] In the 22 May interview, Garcia told police that he had arrived on the Gold Coast on 23 April 2009 and stayed in the Coomera Motel. He and Stewart went to the dawn Anzac Service in Southport. They left the Coomera Motel on 29 April, heading towards Queensland/New South Wales border. After sleeping in the car that night, they went to Split Rock Dam on Thursday 30 April 2009. They left there on 6 May 2009 and arrived back in Melbourne on 7 May 2009. Garcia denied that he was on the Gold Coast, in the Brisbane area, or in the south east corner of Queensland from the evening of 29 April onward.
[76]
[36] Garcia told police that on 1 April 2006 Sandy Davie accused him and Stewart of stealing Sandy Davie's guns. Garcia had been at the Davies' house five days before. He told Sandy Davie that he, Garcia, did not know where Sandy Davie kept his guns and that he had not taken them. Garcia then received a phone call from Stewart enquiring whether Garcia had spoken to Sandy Davie. They discussed whether it was a joke. Stewart had two or three weapons registered through Sandy Davie, under Sandy Davie's business name. Sandy Davie had threatened Garcia not to go to the police.
[77]
[37] Garcia said that Sandy Davie threatened him that if he and Stewart went to the police they would regret it. Garcia said that he and Stewart both gave statements at the Southport Police Station. Subsequently Sandy Davie arrived with his hand on a gun complaining about Garcia and Stewart going to the police. Sandy threatened to kill him. Garcia told Sandy to take his hand off the gun because Garcia was quicker than he was. Sandy Davie threw a cheque at Garcia. Garcia then went to the police and complained that he had been threatened by Sandy Davie. Garcia subsequently spoke to Stewart, who said that he had been through the same thing. Stewart and Garcia subsequently set up business together, but they were harassed in various ways which Garcia thought related to the missing guns. Garcia said that a motor cycle gang and Alexander Davie turned up with a baseball bat and dogs threatening to "kill youse all and I want to take the gun back...".[17] Garcia said that things were getting out of control, it was like a big nightmare, so they decided to pack up and go to Cairns. The following part of the interview is confusing. At one point Garcia said that someone told him that he had "stepped on some big toes... by dragging Sandy into something".[18] Garcia referred to harassment of him which he thought was never going to finish, so he moved to Melbourne. Garcia said the last time he saw Sandy or Sue Davie was in 2006. He said that he had not tried to phone Sandy in the last two years and from what he knew Stewart had not tried to phone him either. Garcia said that after Stewart was released from jail he was "a different man... pissed off... shitty..."; "... he wanted to go to the bottom all the way and then... he disappeared out of the picture for two or three months".[19] Stewart then rang Garcia looking for work. Stewart came to Melbourne. He thought "the whole thing was just a big conspiracy... He thought everyday he was being chased by people".[20]
[78]
[38] Garcia told police that Carol Robertson told him not to bring Stewart to her place, she did not want to talk to him or know about him. Hickey asked Garcia whether Carol Robertson blamed Stewart for the nightmare which she had told Hickey she was living. Garcia agreed. Stewart was with him all of the time when they were on the Gold Coast between 24 and 29 April. Garcia denied having anything to do with the murders of Sandy or Sue Davie. Towards the end of the interview Garcia volunteered that it would be hard to talk to Stewart because he did not trust police.
[79]
[39] On 26 May 2009, pursuant to arrangements made between Garcia and Hickey, Garcia drove Stewart to the Caulfield Police Station. Stewart was interviewed by Hickey and another police officer, Bolin, for about an hour and a quarter before Stewart exercised his right to no longer answer questions. Hickey, another Queensland officer, Stock, and Birch then went to a holding cell at the police station where Garcia was interviewed. After that interview Garcia indicated that he exercised his right not to answer any more questions. The appellants were charged with the murders of Sandy Davie and Sue Davie and extradited to Queensland.
[80]
[40] At the commencement of Stewart's 28 May 2009 interview, police told him that he and Garcia were nominated by members of the security industry on the Gold Coast as suspects in the murder of Sandy and Sue Davie because of their disagreement with Sandy Davie three years earlier. Stewart told police that he had worked in the security industry on the Gold Coast between 1995 and 2006. Stewart said that he had gone up to the Gold Coast with Garcia on 24 April 2009 and collected a friend of Garcia's on the way to the Coomera Motor Inn. He and Garcia left the Gold Coast on 29 April and arrived at Split Rock Dam on the following day. Stewart described other visitors to the dam who might be able to verify that he and Garcia were there as he said. Stewart said that he and Garcia camped at Split Rock Dam before leaving for Melbourne, where they arrived on Wednesday 6 May. Stewart said the last time he saw or spoke to Sandy or Sue Davie was in 2006. One afternoon Sandy called Stewart complaining that guns had been taken out of the safe in the Davies' garage. Sandy Davie told Stewart to bring the guns back. At the time Stewart was working for SSS. Stewart spoke to Garcia about it and rang the Southport Police Station. He said that two of the guns in the safe were his. Stewart said he had the combination of the safe which is why he thought that Sandy Davie might have accused him. Stewart said that in the following three years he had deliberately kept away from Sandy Davie; "we had enough dramas back then that it's not worth... digging up anything up from it... [a]s it was I did six and a half months at Arthur Gorrie on remand, for a load of bullshit charges and got given a...".[21] Stewart went on to tell police that he had been charged with some armed robberies which had been committed by someone with a similar car. He did not know whether or not Sandy Davie had supplied a statement in that case. Stewart answered "no" to questions of whether he had phoned Sandy or Sue Davie since April 2006. (The admitted schedule of telephone records established that a phone which was admitted to be subscribed to Garcia, but usually used by Stewart, telephoned the landline phone at the Davies' house for a duration of 16 seconds using a tower at Mudgeeraba South at about 10.42 pm on 29 April 2009). Stewart told police that when he was on the Gold Coast he and Garcia spent most of their days and nights together. He had been with Garcia at the Gold Coast two or three months earlier, and on that trip Ward, a friend of Garcia's had been with them. Stewart said that Sandy Davie used to do patrols at night and escorts during the day. He had "pissed off a few people over the years" and "would rip anyone off if he... had a reason to."
[81]
[41] Hickey told Stewart that the police had lifted Stewart's DNA profile from Sandy Davies' belt "[w]hen the phone was taking [sic] out".[23] Stewart said that he was at a loss to explain that. Hickey told Stewart the police knew that he was not at Split Rock Dam when he said he was, but was at the Gold Coast. Stewart denied that and suggested that the police talk to the rangers at the dam. Hickey told Stewart that they had tracked his phones from tower to tower and that Garcia had made a phone call which bounced off the tower outside One Steel and that Stewart was with Garcia. Stewart responded that he "was with [Garcia] pretty much the whole time" and that he was "lost on this one".[24] In response to the subsequent questions Stewart maintained the version of his and Garcia's journey from the Gold Coast to Split Rock Dam and could not explain the phone records or the DNA to which Hickey had referred. After the appellant asked to use the toilet the interview was suspended and upon its resumption Stewart indicated that he would not answer any more questions.
[82]
[42] During the suspension of Stewart's interview, Garcia was interviewed by Birch and Hickey. When the prosecutor tendered the recording of this interview he said that it was "admissible as to the truth of the content against Mr Garcia in this trial only."
[83]
[43] At the commencement of the recording Birch made a statement to the effect that the interview was conducted at the request of Garcia after he had spoken to a lawyer. Garcia said that he had told Birch (before the recording commenced) that Garcia did not want Stewart near his house. Garcia said that he did not kill anyone but he knew who did it and how it was done. He said that he was prepared to talk to police as long as they did not let Stewart near Garcia's family. Garcia said that Stewart and Ward killed the Davies. He said that he did not know where Ward was and that he had been reported missing with police. Garcia said:
[84]
"They borrowed my bloody car few days in a row. Um, I needed to get back home for work. Um, 'cause the boss was up my arse, cunts were getting fired and ah Cameron said listen let's head to Brisbane and so went to Brisbane, Anthony-, as I said listen I know who killed them. 'Cause I'm wondering, apparently [INDISTINCT]. Anthony booked a motel under his name and we stayed there for two nights, we stayed so from Friday we was there onwards. Cameron got into some kind of, one of his moods again when he seen the triple-S car. Ah apparently Anthony and Cameron went to, to the gas station on the 28th to refuel my car.
[85]
the 28th him and Cameron went to refuel the car and Anthony paid by credit card that's what his partner said. They come back in some weird mood because um, they seen the triple-S car and Cameron was going off and they got back about nine, ten [pm.] I'm like, I was half asleep. We went for a drive around ah Surfers, Robina I said, what the fuck you looking for fuck don't worry about it.
[86]
And ah Sunday about six PM, yeah it would have been around six [pm], um, they want to go to the Gold Coast and I said fuck it you go I going to sleep. They got back about, 4.30 in the morning, Monday morning .Let s, Monday morning [t]hey try they want to go now. I said nah, nah. I said, I'm on holiday, I said fuck ya, said [INDISTINCT]. They said better go, we better go. Anthony cracked the shits, said fuck you I'm going to Sydney. He had one of his mates come pick him up and ah, ah Cameron says listen Tuesday morning we're going. I said fine. I said fuck it the minute when we get back home anyway the missus gonna kill me and we stopped off at the forest at that camping place Splitrock Dam and Cameron said we got to burn off some stuff. And he was burning clothes and ah, boots, a knife he usually has a hunting knife with him he was arrested last time with it We would have left at eight-thirty PM, we would have left. Yeah Tuesday night. We got there Tuesday morning Tueday night we left. I sort of didn't click on., When we got back into reception area there was some messages, messages from Paul. Ring me asap. I thought oh fuck so I ring Paul and say what's up and he say did you hear Sandy got done So he pissed somebody off
[87]
I said, I went to Cameron I said Cameron, Sandy got done, like so some cunt shot him, I didn't put two and two together because Cameron has a rifle so he would have shot him. We got home, my missus cracked the shit. It was like because of him. Ah then when I came to see you you ask me if I rang Sandy. I said nut I haven't rang Sandy I didn't speak to that prick. Two days ago I see the phone bill and I check Cameron's phone bill. He rung Sandy
[88]
So I basically said Cameron and Anthony [INDISTINCT] what the fuck is going-, I said what the fuck is going on? You don't need to .know don't' worry about it. I had my suspicions. Everybody had suspicions. Then when you rang and said can you came to the police station ... So I went to Cameron I want to know what is going on. So he took me step by step what he did with Sandy and then with Sue.
[89]
He took me step by step how they killed Sandy and how they killed Sue."[25]
[90]
[44] Garcia asked whether the police wished to record this on tape, to which Birch replied that they recorded conversations they had with Garcia but sometimes they used recording facilities or video. Birch said that if Garcia gave the details that he knew and that came up with the investigation there would be a proper interview suite with a video recorder. Garcia then referred to Stewart being at One Steel with Anthony hiding by the toilet box. Garcia said:
[91]
"Um, Sandy pulled up. Apparently Cameron pointed a rifle at him, Sandy went to get a gun 'cause ah, that's what he was saying, Sandy went like that. Anthony came from the side with a double barrel shotgun. Then he tried to zip tie him, he wouldn't let him zip tie him. So they his him and zip tied him. Um, they took him to the toilet block and ah, he first, said he was tied up from behind um, throat. The way Cameron was just state by double tape, by double tape. He said that about forty times, thirty forty times. Um, Anthony just stood there like you know and I don't know Anthony or Cameron wrote dog on the wall because they killed him. They got in his car and drove straight to ah, Robina. Cameron said he's done Sue the way Sandy used to threaten to do Sue with a hammer."[26]
[92]
[45] After further details of what Garcia said Stewart had told him, including of assaults on Sue Davie, Garcia said that Cameron "finished her off" in the garage before cleaning up the floor and leaving.[27] Garcia told Birch that he (Garcia) had been honest when he had spoken to Birch and that he was being honest now "[a]s far as I can tell", but that he had lied to Birch the first time Birch had come to Garcia's place.[28] Garcia went on to make further statements which, consistently with the chronology quoted in paragraph [43] of these reasons, contradicted his exculpatory accounts in his earlier interviews of his having been with Stewart at Split Rock Dam on the day of the killings, including that they had stayed in a motel in Brisbane on that Sunday night.
[93]
[46] An employee of a motel in Brisbane gave evidence that the business records of the motel recorded that three people had booked to stay in the motel from 30 April to 5 May 2009 under the name Ward. An employee of a pizza store in the same area of Brisbane gave evidence of business records recording the sale and delivery of a pizza to "Anthony" at the motel room on 29 April 2009. Stewart and Garcia admitted that they were in South East Queensland at the time of the killing and they admitted that they had lied to police about their whereabouts.
[94]
Consideration of unreasonable verdict ground of appeal: Stewart and Garcia
[95]
[47] The trial judge directed the jury that the prosecution case was that one or other of Garcia, Stewart or Ward killed the deceased; that each of Stewart and Garcia was guilty either as the killer, or as a person who aided the killer in the offence (ss 7(1)(b), (c) of the Criminal Code), or as a person who formed a common intention with the killer to prosecute an unlawful purpose in conjunction with one another and the murders were committed in the course of and as a probable consequence of the prosecution of that purpose (s 8). As to the common intention, the Crown case was that there was a plan which involved stealing the house key from Sandy Davie so that the appellants could steal from his house, that each of Stewart, Garcia and Ward would have believed that Sandy Davie was armed and there was the prospect of serious violence, and that Sue Davie was killed because she could have recognised Stewart and Garcia. The trial judge gave the jury conventional directions (which were not criticised in this appeal) about the party provisions in the Criminal Code.
[96]
[48] Stewart argued that the admissible evidence in the Crown case could not support reasonable verdicts of guilty. He argued that there was no evidence to relate the accusations made by Sandy Davie against Stewart in 2006 to the killing of Sandy Davie and Sue Davie three years later, so that the alleged motives were not compelling; there was no evidence that Stewart had ever patrolled One Steel when he was employed by SSS and no evidence that Stewart was aware of its layout or the order in which Sandy Davie would patrol it; there was no evidence that Stewart had been at the Davies' house; the presence of Stewart's DNA on Sandy Davie's utility belt was not persuasive in light of the evidence that DNA could have remained there for years and the evidence that Stewart had been one of Sandy Davie's employees; Stewart's lies about his whereabouts were told after police informed him that he had been nominated as a suspect in the murders; and those lies might have been motivated by something other than a consciousness of guilt. Stewart argued that the jury were limited to the DNA evidence with the explanation about how long DNA might last, the evidence of the phone call from Stewart's phone number to Sandy Davie's phone number on 29 April 2009, evidence of animosity between them from a few years earlier, and the evidence of the lies told by Stewart. Stewart argued that the jury should have had a doubt about his involvement in Sue Davie's killing in the absence of any evidence that he was ever at the Davies' house and because of the evidence that only Garcia and Ward were together at 2.00 am. The circumstantial evidence should have left the jury with a doubt about Stewart's guilt of either of both murders or, in particular, the murder of Sue Davie.
[97]
[49] Garcia argued that the admissible evidence in the Crown case could not support reasonable verdicts of guilty. The suggested motive that Sandy Davie had implicated Garcia in an offence in 2006 bore no weight because the killing occurred three years afterwards. There was no DNA evidence linking Garcia to either deceased. Nothing of relevance was found on Garcia's clothing or motor vehicle. Garcia's fingerprints were not found. The fact that Garcia's mobile phone was used to call Carol Robertson did not mean that Garcia made that call and Carol Robertson did not remember the call herself. The security film taken from One Steel's premises showed only the car of the deceased arriving and departing.
[98]
[50] Each appellant's ground of appeal must be separately considered in light of the evidence which was admissible against that appellant. However, the common themes in the evidence and arguments make it convenient to discuss the two cases together.
[99]
[51] In the case of each appellant the jury could safely conclude that Sandy and Sue Davie were murdered. An inference that the killer or killers of each victim had the requisite intent to kill or to do grievous bodily harm to the victim could readily be drawn from the evidence of the wounds each victim sustained, which must have been caused by repeated and violent assaults of a kind which were manifestly likely to cause death. The jury could also safely conclude that Sandy Davie was killed in the course of carrying out a plan to take his house key and steal from the Davies' house: no house key was found with the body of Sandy Davie and the house was securely locked when Alexander Davie arrived there on the Tuesday morning following the killings on the Sunday night; the evidence concerning the order of the offences and the evidence of blood containing DNA matching Sandy Davie's DNA being found at the Davies' house demonstrated that, after the killing of Sandie Davie, the killers went straight to the Davies' house, and, after Sue Davie was killed, straight to the hinterland to burn Sandy Davie's car; there was evidence that each appellant knew of the safe kept at the Davies' house; there was evidence of an attempt upon the safe at the house when valuable items were not removed from the house,[29] which would be expected if this was an unplanned burglary; and there was the evidence that Ward was shown on the CCTV footage at Hope Island wearing a black "Security" T-Shirt of the kind found where Garcia and Stewart lived in Melbourne. The last mentioned evidence, understood in the context of the evidence linking each appellant to Sandy Davie's killing, suggested that, after Sandy Davie was killed, Ward drove Sandy Davie's car to the Davies' house and thereafter to the hinterland. That and the evidence that each of Stewart and Garcia (before his 28 May interview) told police they were together all or virtually all of the time during their trip to the Gold Coast suggested that Garcia probably drove himself and Stewart in Garcia's car, first to the Davies' house to participate in the planned robbery, and then to the hinterland to collect Ward after Sandy Davie's car was set on fire.
[100]
[52] The jury could safely conclude that Garcia and Stewart knew that the carrying out of the plan could well involve the use of serious violence against Sandy Davie. One reason for that conclusion is that each of them must have expected Sandy Davie to be armed, but the jury could also conclude from the nature and extent of the assaults upon Sandy Davie, the evidence of the writing in his blood of the word "DOG", and the evidence of each appellant's grievance against Sandy Davie, that each appellant had planned a violent assault upon Sandy Davie.
[101]
[53] Those conclusions assume that each appellant could be implicated in the assaults upon Sandy Davie. That assumption is justified. It was uncontroversial that the prosecution established beyond reasonable doubt that each appellant had the opportunity to commit all of the offences, but the evidence went further than that; in each case, the evidence justified the jury in inferring that each appellant was present when Sandy Davie was killed, that each appellant had a serious grievance against Sandy Davie, and that each appellant told persistent and detailed lies to police out of a consciousness of guilt of the offences.
[102]
[54] In relation to Garcia, in the context of the Robertsons' evidence that Garcia told Carol Robertson that he had telephoned her on the Sunday night, the telephone records and the evidence concerning the order of the offences justified the jury in concluding that Garcia made that call within minutes of Sandy Davie being killed. The evidence of the call from Garcia's phone two and a half hours earlier suggested that Garcia had been in the same area well before that killing. Particularly having regard to the effect upon Garcia's credibility of what the jury could conclude were deliberate lies in the false alibi he gave to police, the jury could readily reject the self serving parts of the statement which Paul Robertson attributed to Garcia whilst at the same time accepting Garcia's statement (which was consistent with the telephone records) that he was at One Steel when Sandy Davie was killed. On the whole of the evidence, the jury could infer that Garcia was present at the One Steel premises when Sandy Davie was killed.
[103]
[55] In relation to Stewart, the jury could safely reject the hypothesis that his DNA might have been transferred to the security belt during his employment with SSS Security and remained there until it was discovered by Ms Caunt three years later. The effect of Alexander Davie's and Paul Robertson's evidence was that Sandy Davie regularly wore the security belt both during the period when Stewart was employed at SSS Security and for the three years afterwards. Sandy Davie would regularly have touched the places on the mobile phone pouch from which the relevant DNA was sampled when he withdrew or replaced his mobile phone. That is consistent with Ms Caunt's evidence that DNA matching Sandy Davie's DNA was found in that sample as well as in samples taken from the keepers of the utility belt. Also taking into account Ms Caunt's evidence in re-examination, the jury could reject the hypothesis advanced for Stewart that, if Stewart's DNA was transferred to the pouch on the belt in 2006 (there was no evidence that this happened or even that it was likely to have happened), it might have remained there for the following three years. Also taking into account the evidence that Sandy Davie's mobile phone was found in the toilet, the jury could reasonably conclude that Stewart's DNA was deposited on top of Sandy Davie's DNA when Stewart removed the mobile phone from the pouch. The jury could also reject Stewart's self-serving statement to Dr Jacobs that the source of the burn on Stewart's hand was a barbecue two or three weeks before the medical examination and infer that Stewart was burnt in the course of setting fire to Sandy Davie's car to destroy evidence which might inculpate him in the killings.
[104]
[56] The jury could also reasonably conclude that each of Stewart and Garcia gave a deliberately false and detailed account of having left the Gold Coast before the murders were committed because each knew that to tell the truth would implicate him in the murders. The trial judge's summing up records that Stewart's counsel accepted that Stewart had lied to police about not being at the Gold Coast on the Labour Day weekend but argued that innocent people sometimes lie if they are in a panic or in fear of being wrongly accused, or to protect someone else; Stewart's counsel argued that Stewart was trying to protect Ward when he spoke to the police. Those arguments seem unpersuasive. Similarly, the summing up records that Garcia's counsel both attributed a motive to Ward and, whilst acknowledging that Garcia had lied to police about not being at the Gold Coast on the Labour Day weekend, argued that innocent people can tell lies if they are in a panic or are concerned about being wrongly accused or want to protect someone else. Again, those arguments seem unpersuasive.
[105]
[57] The evidence of planning and the writing of the word "DOG" in Sandy Davie's blood are consistent with the nature of each appellant's grievance against Sandy Davie revealed by evidence in the Crown case. Chadburn's evidence that Stewart and Garcia both told him that they would kill Sandy Davie is consistent with statements made by Stewart and Garcia themselves. In relation to the Crown case against Stewart, he complained in his police interview on 28 May 2009 that Sandy Davie's accusations that Stewart had stolen guns from Sandy Davie were false and, although it seems illogical, he appeared to relate those accusations to his imprisonment on remand for a different offence. Stewart also made accusations of unspecified but serious wrongdoing by Sandy Davie and asserted (falsely) that he had deliberately kept away from Sandy Davie. Whilst other parts of Stewart's statement indicate that he blamed his imprisonment on remand upon police or others, the jury could reasonably conclude that Stewart remained aggrieved by Sandy Davie's conduct in 2006. In relation to the Crown case against Garcia, his statement to police suggested that there had been a very serious falling out between him and Sandy Davie in 2006, so serious that Garcia contemplated using a firearm in response to a perceived threat that Sandy Davie would use a firearm against Garcia; and in Garcia's 14 May 2009 police interview he told police that "[b]asically... I did time because of Sandy." In the case against each appellant, the jury could safely conclude that, although it is difficult to discern any reasonable ground for the appellant's motive, the appellant was motivated to harm Sandy Davie.
[106]
[58] The combination of those circumstances supplied a sound basis for the jury to find that the prosecution had proved beyond reasonable doubt that each appellant was guilty of the murder of Sandy Davie.
[107]
[59] There was no direct evidence putting either appellant at the scene of the killing of Sue Davie or the burglary and arson offences, but the combination of circumstances already discussed (particularly those circumstances discussed in [51] of these reasons) and the additional circumstance that each appellant must have expected that Sue Davie would be at the house and be able to identify the appellant, thereby potentially implicating him in the killing of Sandy Davie, made it reasonable for the jury to be satisfied beyond reasonable doubt that each appellant was also guilty of the murder of Sue Davie and those other offences.
[108]
[60] The combination of circumstances proved by the evidence admitted in the Crown case against Stewart made it reasonable for the jury to find that the prosecution had proved his guilt of each offence beyond reasonable doubt. Similarly, the combination of circumstances proved by the evidence admitted in the Crown case against Garcia made it reasonable for the jury to find that the prosecution had proved his guilt of each offence beyond reasonable doubt.
[109]
Refusal of Stewart's application for a separate trial
[110]
[61] Before the trial, Stewart's counsel applied for Stewart to be tried separately from the trial of Garcia. Stewart's counsel argued that Garcia's implication of Stewart in the offences in the 28 May 2009 police interview was "too hard for a jury to ignore", even though that interview was not admissible against Stewart. Atkinson J refused the application. Her Honour did not accept that that there was a significant distinction between this case, in which only one accused (Garcia) sought to blame the other accused (Stewart), and cases where each accused sought to blame the other. Atkinson J considered that there was no real risk that the jury would use the evidence impermissibly, this case being very similar to other cases in which trial judges explained to the jury that some evidence was admissible against one accused, some evidence was admissible against another accused, and some evidence was admissible against both. Her Honour added that attention to this issue at the trial would be required to avoid any impermissible unfairness.
[111]
[62] Immediately after the conclusion of Hickey's evidence, which occurred very shortly after the recording of Garcia's 28 May 2009 interview was played to the jury, Stewart's counsel applied for an order discharging the jury from returning a verdict in relation to Stewart and an order for a separate trial. The trial judge refused the application on the ground that there had been no change, material or otherwise, in the circumstances which prevailed when Atkinson J made the pre-trial ruling. Upon appeal, Stewart disclaimed any challenge to that decision but challenged Atkinson J's pre-trial ruling.
[112]
[63] Stewart argued that Atkinson J underestimated both the utility of the distinction drawn by Stewart's counsel between this case and cases involving a "cut throat" defence and the risk that, notwithstanding the directions given by the trial judge, the jury would misuse the evidence of Garcia's statements which were inadmissible against Stewart. Stewart argued that the interview was extremely prejudicial to Stewart for various reasons: it was apparently direct evidence in a case that was otherwise circumstantial, being an account of the offences given by one of the offenders; it had graphic features; it was not brief evidence; and it added apparent strength to the Crown case by providing context for the limited circumstantial evidence presented by the prosecution. Stewart emphasised his argument that much of what Garcia claimed to have been told by Stewart was consistent with the circumstantial evidence as to the order of the killings, the use of cable ties, the way Sandy Davie was tied up, the writing of "DOG" on the door, and the inability to open the safe at the Davies' house using a hammer. Stewart argued that the impact of this evidence was increased by the evidence that the interview was requested by Garcia just after speaking with his solicitor, and by Garcia's statements to the effect that he wanted to help the Queensland police get to the truth, that he would tell the truth only if Stewart was not permitted near his house, and that he was prepared to take a lie detector test. Further, the critical part of the interview, which was the allegation that Stewart confessed and gave details of the killings in a graphic way, was presented dramatically. It was too striking to expect the jury to disregard it. This was submitted to be one-sided because the jury heard only what Garcia claimed that Stewart had confessed to Garcia; the jury did not hear what each accused said about their respective roles of behaviour, in which case a joint trial might have been warranted.
[113]
[64] Stewart argued there was a further reason why this case was distinguishable from those in which applications for separate trials were usually refused: that, with only one exception, Garcia's 28 May 2009 interview contained no relevant admission by Garcia which would render that evidence admissible in his trial. Hickey's evidence of Garcia's account of a confession by Stewart was a hearsay upon hearsay account which was inadmissible even in Garcia's trial (because, Stewart argued, there was no exception to the hearsay rule for third party confessions[30]). The one exception was Garcia's admission in the 28 May 2009 interview that he stayed in a Queensland motel on the night of Sunday 3 May 2009. Stewart argued that this admissible portion of the interview could have been tendered separately from the balance of the interview. (In that respect, Stewart's counsel pointed out that no directions were given to the jury to the effect that the interview revealed a consciousness of guilt on Garcia's part by revealing some esoteric knowledge of the offences; or any other instructions about the way in which the interview was admissible in the case against Garcia.) Stewart argued that (with that exception) the evidence of Garcia's interview should not have been before the jury at all, even though Garcia was entitled to rely upon that exculpatory evidence in his trial because the prosecutor had chosen to put it into evidence.[31]
[114]
[65] Stewart also argued, albeit feintly, that other evidence inadmissible against Stewart added weight to the argument that separate trials ought to have been ordered. Stewart referred to four separate categories of evidence: (1) the evidence given by the Robertsons that Garcia accused Stewart and Ward, acting alone, of the killings; (2) Garcia's statements in the 28 May 2009 interview hinting that the appellant had a propensity for violence; (3) Chadburn's evidence that Garcia said that Stewart had pointed a shotgun at Sandy Davie; and (4) statements in Garcia's 22 May 2009 police interview about Stewart getting out of jail "a different man... pissed off ... shitty" and feeling paranoid, and Carol Robertson's evidence blaming Stewart for the "nightmare".
[115]
[66] The respondent argued that Stewart was bound by his counsel's conduct at the pre-trial application in relation to all but one of the points made in the two preceding paragraphs of these reasons. In the pre-trial application, Stewart did not argue that Garcia's 28 May 2009 police interview was not admissible against Garcia; Stewart did not then advance any of the arguments summarised in [64] of these reasons. In the pre-trial application Stewart also did not rely upon the last three of the four categories of evidence mentioned in [65] of these reasons. The respondent argued that in these respects the exercise of discretion by Atkinson J could not be challenged on the basis of arguments not advanced before her Honour. Otherwise, the central aspects of the respondent's arguments were that there was no error justifying appellate correction of the discretionary decision made by Atkinson J, the prosecution portrayed Garcia as a liar, and the trial judge's directions were in any event apt to ensure that the jury would not misuse the evidence.
[116]
[67] There is substance in the respondent's argument that the Court should be hesitant to entertain points which were not argued in the pre-trial application. In Crampton v The Queen[32] Gleeson CJ set out a number of reasons for the general rule that it is only in exceptional circumstances that an appellate Court will entertain a point which was not raised at first instance:
[117]
"First, there is what was referred to by L'Heureux-Dubé J in the Supreme Court of Canada as "the overarching societal interest in the finality of litigation in criminal matters" when she said:
[118]
"Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal maters could be spread out over years in the most routine cases."
[119]
Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.
[120]
Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.
[121]
Fourthly, as a general rule, litigants are bound by the conduct of their counsel. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice.
[122]
Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice."
[123]
[68] All of those reasons are potentially relevant here. The Court cannot know why Stewart's counsel did not take the new points or how the taking of those points would have affected the evidence at the trial. It is not appropriate for this Court to entertain points which Stewart's experienced defence counsel did not take either in the pre-trial application or at the trial. Accordingly I will consider the challenge to the exercise of the discretion on the basis of the matters which Atkinson J was asked to take into account.
[124]
[69] In R v Belford & Bound[33] I summarised Applegarth J's analysis[34] of the principles applicable in a separate trial application of this general character:
[125]
"Generally, there are strong reasons of principle and public policy why joint offences should be tried jointly. The mere fact that one result will be that evidence admissible against one accused but inadmissible against the other accused will be before the jury is not a sufficient reason for ordering separate trials. The strong reasons for a joint trial are strengthened where each of the accused deploys a "cut throat" defence of seeking to incriminate the other. Those and other considerations which favour joint offences being tried jointly must be weighed against the risk that evidence that would not be admitted at the trial of one accused may prejudice the fair trial of that accused. Cases where separate trials should be ordered include those 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" [R v Davidson[2000] QCA 39 at [13]], where the directions given by the trial judge to avoid prejudice require "remarkable mental feats" that the jury could not be expected to perform [Winning v The Queen[2002] WASCA 44 at [42], cited in R v Roughan[2007] QCA 443; (2007) 179 A Crim R 389 at [56]], or where the prejudice may be such as to "cause a jury even to ignore the directions of a trial judge" [R v Davidson[2000] QCA 39 at [13]]."
[126]
[70] As appears from that analysis, the reasons of principle and public policy for joint offences being tried jointly generally apply whether or not one accused deploys a "cut throat" defence. So much appears from Ali v The Queen,[35] in which Callinan and Heydon JJ observed that the guilt and innocence of two co-accused were interconnected and "[t]heir 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", and that no "special or other features of the case" required separate trials. In relation to the "cut throat" defence in that case, their Honours added:
[127]
"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. A joint trial of the appellant and the co-accused served to give the jury a means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged."
[128]
[71] In R v Roughan & Jones,[36] Keane JA referred to Ali and said that "[t]he 'strong reasons' for a joint trial are strengthened rather than weakened where each of two accused deploy the 'cut-throat' defence". That Stewart did not seek to implicate Garcia in the offences does not justify disregard of the general rule that separate trials in a case of this kind are the exception rather than the rule. I would add that the supposed distinction between this case and a case involving a "cut throat" defence is not particularly clear. Although Stewart did not give evidence and did not give any statement to police implicating Garcia, and although the summing up suggests that Stewart's counsel submitted that only Ward was shown to have a motive, acceptance of a proposition that Stewart was not a party to the killings would have left the jury with the evidence in the Crown case that Garcia was present at the killing at One Steel and that he and Ward were together at Hope Island about half an hour after Sandy Davie's car was found on fire near Springbrook.
[129]
[72] The strongest argument for Stewart that there was a special feature in this case which justified separate trials was that Garcia's description of Stewart's purported confession of the detail of the killings was so striking that the jury could not be expected to put it out of their mind, notwithstanding any directions which the trial judge might formulate. In assessing that argument it is necessary to take into account not merely the version given by Garcia in the 28 May 2009 police interview, but the nature of the Crown case against Garcia, which the jury would also hear, which portrayed Garcia as a liar.
[130]
[73] For the reasons given in the following section of these reasons I conclude that the directions given by the trial judge were in fact sufficient to avert any risk that the jury might misuse Garcia's statements to the prejudice of Stewart. Consistent with that conclusion, I am not persuaded that Atkinson J erred in concluding that such a risk could be averted by appropriate directions.
[131]
The adequacy of the trial judge's directions to the jury about the impermissibility of using Garcia's statements in Stewart's trial
[132]
[74] In light of the measures which were taken at the trial to avoid any unfairness, I conclude that the refusal of Stewart's application for a separate trial did not result in a miscarriage of justice. As appears from the summary of the evidence earlier in these reasons, on virtually each occasion upon which evidence which was admissible only in Garcia's trial was adduced the jury was reminded in clear terms that the evidence was not admissible against Stewart. The trial judge gave the force of his office to those warnings. The jury could not have misunderstood the import of the prosecutor's statement when tendering the recording of Garcia's 28 May 2009 interview that it was "admissible as to the truth of the content against Mr Garcia in this trial only". Against that background, it may safely be assumed that the jury had no difficulty in comprehending the trial judge's following directions concerning separate consideration of the offences alleged against each accused:
[133]
"Now, as you know, neither defendant has given or called evidence and that is his right; each defendant has that right. Neither is bound to give or to call evidence. Each defendant is entitled to insist that the prosecution prove the case against him if it can. The prosecution bears the burden of proving the guilt of each defendant beyond a reasonable doubt and the fact that a defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all.
[134]
You must not assume that because a defendant did not give evidence that - in some way that adds to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt and it most certainly does not make the task of the prosecution any easier. It cannot change the fact that the prosecution always retains the responsibility to prove guilt beyond reasonable doubt.
[135]
Now, as you obviously know - as we all know - there is more than one defendant here, there is more than one charge. Although the defendants are being tried together, that is in the same case, you must give the cases against each and for each of them separate consideration. You must separately consider the evidence which is admissible in relation to a defendant whether it is against him or for him. I will tell you soon about the evidence which may only be considered with respect to each defendant.
[136]
You cannot use evidence which can only be used for one defendant when considering the other defendant. You have got to put a barrier between the two. In respect of each charge, each defendant is entitled to have the case decided on the evidence and on the law that applies to him and as it relates to each particular charge, and so you must return separate verdicts in respect of each defendant and separate verdicts on each charge" (emphasis added).
[137]
[75] After giving the jury conventional directions about the assessment of the evidence (including appropriate directions about the use which could be made of the lies and motive alleged by the prosecution in each case), the trial judge gave specific directions concerning the use in the case against Stewart of the statements attributed to Garcia:
[138]
"Now, I want to turn to the cases against the defendants and I remind you again that you must consider these cases separately and you must consider each charge separately. You have heard, during the case, statements made by counsel about what evidence was admissible against one defendant and not against another. I am going to list the particular evidence which cannot be used against a particular defendant.
[139]
In the case against Garcia, the evidence which is not admissible against him and which cannot be used by you when deciding the charges against him is, first, the interview of Stewart with the police and, second, the statements made by Stewart which the prosecution has said were lies.
[140]
Now, in the case against Stewart, the evidence which is not admissible against him and which cannot be used by you when deciding the charges against him is, first, all and each of the interviews by Garcia with the police. Secondly, the evidence of Chadburn about what Garcia had said and, thirdly, the evidence of Robertson about what Garcia had said" (emphasis added).
[141]
[76] The technique of specifically identifying the inadmissible evidence, repeating the substance of the directions in simple language, and the use of evocative language ("You have got to put a barrier between the two") appropriately emphasised the critical directions that the jury was obliged to "give the cases against each and for each of them separate consideration" and "separately consider the evidence which is admissible in relation to a defendant whether it is against him or for him".
[142]
[77] Stewart argued that stronger and more elaborate directions could have been given. In some cases more comprehensive directions are given, including that it would be "quite unjust to use anything that one accused has said about a co-accused against them when they were not there" because the co-accused was not present to refute the allegations and did not have the opportunity to challenge what the accused said in cross-examination at the trial.[37] As Stewart also submitted, the directions given by the trial judge did not include the language by a trial judge which was quoted in R v Roberts & Pearce:[38]
[143]
"... That [giving the cases against and for each defendant separate consideration] is critical to ensure that the defendants receive a fair trial. ... To ensure fair trials, you must strictly follow my directions in relation to what evidence may be used in the trial against each defendant...".
[144]
[78] The question though is whether the particular directions given by the trial judge in this case were effective to ensure that the jury would not take into account against Stewart the statements made by Garcia which the prosecution adduced in the case against Garcia.
[145]
[79] In answering that question it is necessary to take into account the chilling and gruesome details of the confession to the killings which Garcia attributed to Stewart. I note that although in the 28 May 2009 interview Garcia referred to Stewart burning a knife, Garcia described that as a knife which Stewart usually had with him, and Garcia's purported retelling "step by step" of the killing of Sandy Davie did not refer to the use of that or any knife to kill Sandie Davie; the only weapon to which Garcia referred in that context was a rifle, and Paul Robertson's evidence suggested that Garcia had also implied as much earlier. More significantly, it is also necessary to take into account that Garcia's statements were self-serving and that there was evident strength in the prosecutor's attack upon Garcia's credibility at the trial. The jury's verdict that Garcia was guilty of the offences is consistent with the jury having concluded that Garcia lied in detail to the police both when he told police that he was not present at the Gold Coast at the relevant time and when he subsequently told police that he was at the motel in Brisbane and knew nothing of the killings until Stewart made the alleged confession. There was a solid foundation in the evidence for those conclusions. The trial judge referred to the prosecutor's reminder to the jury "of the lies [the prosecutor] said were told by each defendant" and the prosecutor's argument "that other untruths told by the defendants reflected poorly on them and that you should not believe what they said unless you find that it is supported by other evidence or because it makes common sense to accept it". The trial judge reminded the jury of submissions by Garcia's counsel that, if Paul Robertson's evidence were accepted ... "Garcia had made a huge mistake in the order of events". (Paul Robertson's evidence suggested that Garcia implied that Stewart and Ward had shot Sandy Davie, and that Sue Davie was killed before Sandy Davie, both of which assertions were inconsistent with the Crown case.) The trial judge also reminded the jury of Garcia's counsel's acknowledgement that Garcia had told a lie about being at the Gold Coast on the Labour Day weekend.
[146]
[80] In that context, the trial judge's directions were sufficient to avert any risk that the jury would misuse the evidence admitted only in the case against Garcia adversely to Stewart in the case against him. Stewart has not demonstrated that it was "reasonably possible" that the failure to give stronger or more elaborate directions "may have affected the verdict".[39] No sufficient reason appears to depart from the assumption that the jury followed the trial judge's clear directions not to use the evidence of Garcia's statements when considering the Crown case against Stewart.[40]
[147]
The absence of directions in Garcia's case as to the use of Garcia's 28 May 2009 police interview
[148]
[81] The remaining ground of Garcia's appeal against conviction is that the jury were not instructed as to how Garcia's interview of 28 May 2009 could be used. In the outline of submissions for Garcia he adopted paragraphs of Stewart's outline of submissions which contended that Garcia's attribution of a confession to Stewart was not admissible in Garcia's trial. Garcia's counsel did not object to the admission of that evidence in his trial; defence counsel had presumably considered that this exculpatory version advanced Garcia's prospects of acquittals. In R v Callaghan[41] Pincus JA and Thomas J (as his Honour then was) held that, "if a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents ... If inadmissible evidence is let in without objection it may be used by any party 'to the extent of whatever rational persuasive power it may have' (Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 219; McGregor-Lowndes v Collector of Customs (Queensland) (1968) 11 FLR 349; Walker v Walker [1937] HCA 44; (1937) 57 CLR 630)." In any event, Garcia did not contend and it is not the case that the admission of this evidence was unfair to him or created any risk of a miscarriage of justice in his case.
[149]
[82] Both appellants were given the mandatory sentence of life imprisonment for each count of murder and concurrent terms of imprisonment of five years for the arson and burglary offences. In relation to both counts of murder, the sentencing judge ordered that the appellants must not be released from imprisonment until they had served a minimum of 25 years. That order was made pursuant to s 305(2)(a) of the Criminal Code, which, as it then was, provided that if a person who commits the crime of murder is being sentenced on more than one conviction of murder, "the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 20 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006." That minimum custodial period of 20 years has since been increased to 30 years imprisonment. The amendment has no application in this case.
[150]
[83] Stewart was 33 years of age at the time of the offences and 37 years of age when sentenced. Garcia was 30 years of age at the time of the offences and 34 years of age when sentenced. Each had been convicted of the same breaking, entering and stealing offences committed in June 2006 and been sentenced to 12 months imprisonment suspended for two years after serving a period in custody (five months in the case of Garcia and six months in the case of Stewart). The trial judge considered that those criminal histories were not relevant for present purposes.
[151]
[84] The trial judge regarded the minimum of 20 years as being insufficient for each appellant in all of the circumstances of the cases. In so concluding in relation to each appellant, the trial judge took into account the following circumstances. It was not possible to say with certainty who inflicted the blows which killed Sandy Davie or Sue Davie. The murders might have been expected to result in more traces of the assailants than were detected, and there was a suggestion that care was taken to disguise, hide or otherwise remove evidence of the assailants. At least the robbery of Sandy Davie was clearly premeditated. The facts which emerged at the trial did not supply a rational explanation for the murder because any aggression the appellants felt towards Sandy Davie related to an event which occurred previously and which was not in fact related to the appellants' imprisonment on remand. The circumstances of Sandy Davie's death indicated a serious level of malice; the trial judge referred to the manner in which the body was when it was found, the manner in which his hands were tied behind his back, and that his own blood was used to write the word "DOG" on the toilet door. That was not a spur of the moment action. Although the death of Sue Davie may not have been as pre-meditated, it was pre-meditated in the sense that her death was prolonged; a hammer was used on a woman who was simply in her own home engaged in her own business. Following the murders both appellants actively attempted to avoid detection, and their stories about going to Split Rock Dam were rehearsed and completely untrue; neither appellant showed remorse; and Sue Davie was killed at a time and place removed from the time and place of the death of Sandy Davie. The trial judge also referred to the victim impact statements as making it easier to understand the extent of the suffering resulting from the killings, not just on two innocent people who were murdered but also the innocent members of their families; the sentencing judge took those statements into account for that reason but not for the purposes of deliberating upon the sentence.
[152]
[85] The trial judge referred to R v Smithers,[42] in which Mackenzie J increased the minimum custodial period from 20 years to 25 years. The trial judge did not regard Smithers as completely comparable - the circumstances were even more horrific than the murders in the present case - but said "it does given an indication from a very experienced [j]udge" in the criminal jurisdiction in a case in which there were sequential killings.
[153]
[86] Garcia submitted that his sentence was made manifestly excessive by the increase in the minimum custodial period. He argued that, whilst an increase in the minimum period might well have been justified by the circumstance that there were sequential killings rather than killings arising out of one incident, that was insufficient to justify the increase from 20 to 25 years in this case. He also relied upon the circumstance that Garcia might have been found guilty on any one of a number of different bases which included that he was an aider, a party to a plan which involved the killings, or a principal offender. Garcia referred also to other decisions in which there had been increases in the minimum custodial period for more serious offending: R v Sica[43] and R v Maygar; ex parte A-G (Qld).[44] Stewart adopted the submissions for Garcia and also referred to R v Brennan.[45]
[154]
[87] In R v Brennan, the Court refused leave to appeal against an order increasing the minimum custodial period from 20 years to 22 years from the imposition of life sentences for murders of the applicant's estranged wife and her 14 year old daughter. Holmes JA, with whose reasons Morrison JA and North J agreed, found that the sentencing judge had undertaken a careful and complete review of all of the relevant considerations and that the increase in the minimum custodial period was justified by the killing of a 14 year old, against whom the applicant had no cause for anger, and the killing of the applicant's wife in defiance of a Domestic Violence Protection Order which had been meant to safeguard her. Of course there was no similar order in place in relation to the present matter, but it is also relevant to observe that in Brennan the sentencing judge found that the killing of the applicant's wife was not a protracted one involving torture or gratuitous violence. The murders of which these appellants were convicted involved extreme violence and the trial judge found that the killing of Sue Davie was prolonged. The decision in Brennan that the sentence was not manifestly excessive does not suggest that the sentences in this case were excessive.
[155]
[88] An application by Smithers for leave to appeal against his sentence was refused.[46] Gotterson JA, with whose reasons White and Holmes JJA agreed, quoted Mackenzie J's observation that "the question is whether these offences are so intrinsically serious that a longer parole recommendation period than 20 years is required" and "the sequential nature of the killings is a factor that must be taken into account." Whilst, as the trial judge in this case concluded, the circumstances of the murders in Smithers were even more horrific than the murders in this case, that offender pleaded guilty; Gotterson JA considered that but for the pleas of guilty a more severe sentence might have been imposed. Again, the conclusion that the non-parole period imposed in that case was not manifestly excessive does not suggest that the similar order in this case was excessive.
[156]
[89] The other sentencing decisions to which the Court was referred are factually too different from the present case to supply assistance upon the questions raised by these applications. In the case of each appellant, the increase in the minimum custodial period from 20 years to 25 years was justified by the cumulative impact of the circumstances to which the trial judge referred, particularly including the manifestations of serious malice in the killing of Sandy Davie, the prolonged and shocking violence used in the killing of Sue Davie, and the significant gap in time between the two killings. The sentences were not manifestly excessive.
[157]
[90] In each of CA No 92 of 2013 and CA No 96 of 2013, I would order that the appeal against conviction be dismissed and that the application for leave to appeal against sentence be refused.
[158]
[91] GOTTERSON JA: I agree with the orders proposed by Fraser JA and with the reasons given by his Honour.
[5] Outline of submissions on behalf of the appellant Stewart, at [3.42] and [3.43], adopted in the outline of submissions on behalf of the appellant Garcia at [3.1].
[163]
[6] Outline of submissions on behalf of the appellant Stewart, at [3.42] and [3.43], adopted in the outline of submissions on behalf of the appellant Garcia at [3.1].
[164]
[8] RB 454 - 455. Immediately after this evidence was given the prosecutor accepted that Chadburn's evidence to the conversation with "Vladimir" (Garcia) was not admissible by Stewart (who Chadburn said was not present at the time).
[165]
[11] RB 463. Stewart's counsel indicated that this conversation between Carol Robertson and Garcia was not admissible against Stewart. The trial judge directed the jury to that effect.
[166]
[13] Immediately before this evidence Stewart's counsel stated that none of it was admissible against Stewart, the prosecutor said that he accepted that, and the trial judge agreed.
[167]
[29] Photographs taken in the house during the investigation showed computers, televisions and other valuables.