R v Tamme [2004] VSCA 165

R v Tamme [2004] VSCA 165 - VSCA 2004 case summary — Zoe

[56]

"In this case there is evidence which I direct you is, as a matter of law, capable of amounting to corroboration of some matters. It is for you to say whether you accept it and for you to say whether you regard it as being corroborative in fact. As to Michelle Jackson, her evidence implicates the accused Natasha Morgan in that it provides some factual material for inferences including Natasha Morgan's state of mind relative to matters such as the nature of a possible understanding between Natasha Morgan and Emma Tamme as to what might be done to the deceased; the use of words by Natasha Morgan prior to an assault on the deceased; the making of an assault on the deceased by Natasha Morgan; the holding of a knife by Natasha Morgan at Little River; the breaking and use of a bottle by Natasha Morgan at Little River; the making of a confession by Natasha Morgan at the Fawkner unit of having stabbed and glassed the deceased. There is some evidence consistent with corroborating some aspects of that evidence. It comes in part from aspects of the record of interview of Natasha Morgan; it comes in part from the evidence of Dr Dodd as the character of the injuries to the deceased. The evidence of Michelle Jackson also implicates the accused Emma Tamme in that it provides some factual material for inferences as to her state of mind relative to the nature of a possible understanding between Natasha Morgan and Emma Tamme as to what might be done to the deceased, the use of words by Emma Tamme prior to an assault on the deceased, the making of an assault on the deceased by Emma Tamme and the making of a confession by Emma Tamme at the Fawkner unit of having stabbed the deceased many times. There is only limited evidence capable of corroborating the last mentioned aspect of that evidence. It comes from the evidence of Dr Dodd as to the character of the injuries to the deceased. [My emphasis]. It is for you to consider each item of that evidence. It is for you to determine whether you accept the evidence itself and if you do, whether you regard it as corroborating the evidence of the accomplice. If you do not find any corroborating evidence, you must regard the warning I have given: it is dangerous to convict and accused on the uncorroborated evidence of an accomplice. You may do so, but you may do so only if after subjecting the accomplice's evidence to close and careful scrutiny you are satisfied by it and satisfied to act upon it notwithstanding its source and notwithstanding that it is uncorroborated."

[58]

"Coming back to the position as to the evidence of accomplices, it is important that it be appreciated that you are concerned with evidence implicating the specific accused in the crime of murder as distinct from being involved in an unlawful killing. It is also important to add two other riders in that regard; one is that because Michelle Jackson has been sentenced for complicity in this unlawful killing through her pleading guilty to manslaughter, the matters as to which I should have warned you should have included the matter that [has] been raised by all of counsel and that is that the sentence imposed on Michelle Jackson was discounted significantly because of her willingness to cooperate with the prosecution and there was an obligation in the course of sentencing to take into account the degree to which Michelle Jackson had cooperated and undertaken to cooperate with the police and the prosecution and that where in those circumstances there has been that undertaking, there is the risk of the sentence being reviewed in the event of there being non-cooperation. The other point that I might have made but did not make was that which relates to the distinction between evidence which corroborates the evidence of an accomplice and that which merely supports credit. I referred to some specific evidence which I said can be used as corroboration because it goes to maters which might implicate the particular accused in the crime. To the extent that some matters are merely corroborating in the sense of going to the credit of the witness Michelle Jackson, that is to be distinguished from the material with corroborates her evidence. [My emphasis]. Can I go back to the basic proposition in relation to this evidence of accomplice. It is important that I should warn you that it can be dangerous to convict in the absence of corroboration, that whether you accept the evidence that I have referred to as corroborative is a matter for you. The evidence must be evidence [which is independent] of Michelle Jackson, but it is open to you to convict the particular accused of the crime of murder and I make it clear there, of the crime of murder, [original emphasis] not in any broad sense as expressed but specifically in relation to the crime of murder, provided you are satisfied beyond reasonable doubt that you should accept that evidence. But it is important to understand the strong warning that is involved in saying that it is dangerous to convict in the absence of corroboration."

[135]

"The central question here is, `Has the Crown satisfied you beyond all reasonable doubt that Emma Tamme had at the appropriate time, the murderous intent'. That is the only question for your consideration. Why, because she has pleaded to the crime, the serious crime, of manslaughter and as His Honour would explain to you, every crime known to us consists of a number of elements or components and I'm not trivialising things. It's a bit like a legal recipe, a number of ingredients, a number of elements, a number of components. And the Crown must satisfy you beyond all reasonable doubt of each and every one of those elements. You will not be troubled, I suggest, by an element such as `death'. Why? Because you have a plea of guilty to manslaughter. And by her plea that constitutes half the material, indeed a confession to committing the crime of manslaughter. So we go to the core question. I repeat it. Has the Crown satisfied you beyond all reasonable doubt that Emma Jaine Tamme had the intent necessary for murder? What has been referred to as the murderous intent, the intention to kill, the intention to cause really serious harm. ... By her plea to manslaughter most of the evidence in this trial has become redundant. Right. It's (indistinct). It's not longer useful... ... ...here is a person clearly involved in a killing, and a person who has confessed to her involvement by plea of manslaughter..."(My emphasis). ... ...you should not be suspicious about Emma Tamme's alleged intention to kill or cause really serious harm because she's pleaded guilty to manslaughter. That would be quite improper... ... ...There was no cross-referencing between Miss Tamme's DNA, right, and the deceased. Now, Miss Tamme has admitted that she was involved in the death of the deceased, through her plea. But you might like to think that if someone was centrally involved then it would be expected to find blood, the deceased's blood on the clothing which has been identified as being worn by Miss Tamme (My emphasis). Apart from that, as I say, th[at] leaves the evidence basically of Michelle Jackson...Michelle Jackson had a massive reason to be untruthful... ... ...His Honour will shortly start to direct you as to the law and I would only be repeating myself if I returned to this absolutely crucial question, which is the heart of this trial, and that is th[e] murderous intent that the Crown allege - right? - murderous intent that , whether all 12 of you could be satisfied beyond all reasonable doubt that the Crown has made up that element, that component, of the charge of murder."

[145]

"...it is important that you have at least a broad understanding of what is called criminal responsibility, sometimes called complicity. Some of the names that are used are variable in different circumstances. I will try and keep it relatively simple but it is important that you know the basics. As to the two areas, there can be an overlap. One area is where we use the words "aid and abet" and the other area is "acting in concert". Can I make some general propositions, and I will make four points. An individual is normally held legally responsible for the acts that he or she perpetrates or performs or commits -many words like "perpetrate" or "perform" or "commit" are interchangeable but I will try and use the word "perpetrate". The first point should not be difficult to understand. An individual who is the perpetrator of an act that is criminal is normally responsible for that act. The perpetrator is also at times referred to as the principal, the principal being the head person. When I speak of the perpetrators where a weapon or weapons are used to cause death, I refer to the person who wields the weapon [Emphasis added]. Point 2 is that an individual, indeed more than one individual, who is not the perpetrator of a criminal act can also be held legally responsible for that act. I will generally refer to the non-perpetrator as "the secondary party". Point 3 is that it may not be clear from the evidence that there was only one perpetrator. There may be more than one act and more than one perpetrator and it may not be possible to say from the evidence who performed particular acts. Indeed, it is not unusual for a jury to be unable to come to a satisfactory conclusion on the evidence as to certain matters One is whether there was one or more that one perpetrator of the criminal acts; another is which one of more than one person present at the time of the acts was the perpetrator of the acts. Does that mean that you can go no further and find no one criminally responsible? The answer is no. An inability to come to such a conclusion on one or more of those matters does not mean that no one can be found guilty. The evidence must be sufficient to satisfy you there was responsibility in one of a number of ways: (1) responsibility as a sole perpetrator; or (2) responsibility as one of two or more perpetrators; or (3) responsibility as a secondary party who has aided or abetted the perpetrator or perpetrators, or responsibility as a secondary party who was acting in concert with a perpetrator. So it follows from that the responsibility of person as a secondary party in the commission of a crime may be established in more than one way. My point No. 4 is that the law uses, to cover that responsibility as a secondary party, different expressions for two areas that can overlap: one is where a secondary party can be seen to aid or abet, and the other is where a secondary party can be seen to have been acting in concert. But I just tell you at this stage, while I am going to give you short explanations for acting in concert and aid and abet, there is an overlap. The prosecution case put to you by [counsel for the Crown] is that the death of the deceased was caused by the use of a knife, a piece of broken bottle and a rock, or that the injuries were caused by those. You make your assessment, in the light of the evidence of Dr Dodd, as to what were the acts that caused death. [Counsel for the Crown] says there is evidence from Michelle Jackson and from other sources which could lead you of finding that when the deceased was killed there were present both accused and Michelle Jackson. If you accepted the evidence of Michelle Jackson as to the confession, both accused were perpetrators. [Counsel for the Crown] has said that you should accept that evidence, but the defence case is that you reject the evidence of Michelle Jackson because she is not a credible witness. If you did not accept the evidence of Michelle Jackson, you could not say whether only one was a perpetrator or whether both were perpetrators of the acts which caused death. You would then have to consider whether as to each accused she was either a perpetrator or responsible as a secondary party who had either aided or abetted the perpetrator or was acting in concert with the perpetrator. [Emphasis added]. I am now going to turn to acting in concert...[His Honour then directed the jury as to the concept of acting in concert in accordance with standard directions based upon the judgement of Smith J in R v Lowery and King[12], and continued]... I turn now from acting in concert to aiding and abetting. The words aid and abet are used by the law to describe a broad concept or idea of criminal responsibility. If a secondary party is linked in purpose with the perpetrator and if the secondary party, by his or her conduct, does something before or at the time of the perpetrating of the crime to bring about the commission of the crime, that secondary party is as responsible as the perpetrator. A person may be responsible as a secondary party where that person aids or abets the perpetrator or perpetrators in the commission of the crime. Proof of either one or two, aid or abet, is sufficient. It is not necessary for a jury to be unanimous on the precise basis of liability provided you agree that the liability is established as either perpetrator or secondary party on a basis not involving materially different issues or consequences. Basically, the words aid and abet are used to describe the acts of a person who is, at the time the acts are perpetrated, present and is assisting and encouraging those acts to be perpetrated, the words used to describe different aspects of the essential concept of secondary participation in a crime. A person who is liable to be a secondary party must be shown to be linked in purpose with the perpetrator by his or her words or conduct, something to bring about or more likely to bring about the perpetration of the crime. [Emphasis added]. The word aid may be more appropriate to describe physical assistance in the committing of criminal acts or to the getting to or from the scene to commit them. Abet may be the word most appropriate to describe the urging on of the perpetrator at the time. One aids and abets if one intentionally helps the perpetrator or intentionally encourages the perpetrator by words or by presence and behaviour. Ask yourselves as to each of the accused - look at the evidence in a compartmentalised way - is she a perpetrator? If not, is she liable as a secondary party? I remind you that to be liable as a secondary party, she must be either acting in concert or aiding and abetting, linked in purpose with the perpetrator, and she must, by her conduct, have done something before or at the time of the perpetrating of the crime to aid or abet the commission of the crime."

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Judgment (191 paragraphs)

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Cases Cited (17)