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[2009] VSCA 306
Court of Appeal (Vic)
2009-12-18
BUCHANAN, ASHLEY and WEINBERG JJA
Original judgment source is linked above.
R v Withers [2007] VSC 411 (Harper J)
CRIMINAL LAW - Murder - Verdict unreasonable and unable to be supported by the evidence - Whether applicant injected deceased with heroin - Whether injection of heroin was a substantial and operative cause of death - Whether applicant had an intent to kill -Intent to kill dependant upon proof of motive - Evidence considered as a whole did not establish intent beyond reasonable doubt - Lie told by accused capable of displaying consciousness of guilt - Conviction for murder set aside - Conviction for manslaughter substituted.
CRIMINAL LAW - Sentence - Incitement to murder - Impaired mental functioning of applicant did not reduce moral culpability - Pleas of guilty - No defence - No remorse.
1 On 30 March 2006, the applicant, Shirley Withers, pleaded not guilty, in the Supreme Court at Melbourne, to one count of murder (count 1), but reserved her plea to two counts of incitement to murder (counts 2 and 3). Her trial commenced on 26 April 2007. On 3 May 2007, in the absence of the jury, she pleaded guilty to counts 2 and 3. On 5 June 2007, after a trial lasting some six weeks, she was convicted on the count of murder.
2 On 19 October 2007, the applicant was sentenced to a term of 20 years' imprisonment on count 1, and terms of seven years' imprisonment on each of counts 2 and 3. The sentences for counts 2 and 3 were ordered to be served concurrently with each other. Six years of the sentence on count 2 was ordered to be served cumulatively upon the sentence imposed on count 1. That made a total effective sentence of 26 years' imprisonment. A non-parole period of 18 years was fixed.
3 The applicant now seeks leave to appeal against both conviction and sentence.
4 The applicant had for some years been in a de facto relationship with the deceased, Peter Shellard. She had also been the book-keeper for his car business, Kellow-Falkiner Motors Pty Ltd. However, there had been a falling out between them and, in around April 2005, he had removed her as a signatory to his business accounts.
5 The applicant owned and operated a retail business, Suzette Boutique, in Brighton. The deceased had contributed funds to that business but had ceased doing so at about the same time that he caused the applicant to be removed as a signatory to the Kellow-Falkiner accounts.
6 On the evening of 6 May 2005, a Friday, the applicant and two co-offenders, Stanley Callinicos and Sophia Stoupas, went to the deceased's home at 3 Rose Craddock Place, Caulfield ('Rose Craddock'). The applicant had a key and let them all in. She had previously told Callinicos and Stoupas that she intended to tie up the deceased, partly in revenge for his having forced her to participate in sexual bondage, and partly to compel him to sign documents that would transfer to her ownership of a property of which he was the registered proprietor, but which she claimed as her own. The property had been put in his name in order to shield it from the applicant's former spouse.
7 The applicant and her two co-offenders came upon the deceased while he was in bed asleep. Once he awoke, a struggle ensued. Stoupas struck the deceased twice around the head with an unknown object. That was in response to his having bitten her finger while resisting the attack. Callinicos may also have struck the deceased once, with his hand, though that was by no means clear.
8 At some point thereafter, and shortly before he died, the deceased was injected with heroin. Callinicos' evidence was that it must have been the applicant who administered the heroin, when she entered the bedroom, on her own, after the three of them had first tied up the deceased and gone into the kitchen. He said that subsequently, the applicant and Stoupas went back into the bedroom, and Stoupas inserted a Proladone suppository into the deceased, which was intended to have a sedative effect. However, by that time, the deceased was either dead, or very close to death. That was ascertained because the post-mortem examination found that the suppository had not been absorbed into his blood or urine. This was almost certainly because the deceased's body temperature at the time of insertion was not high enough to allow such absorption.
9 The applicant, Callinicos and Stoupas left Rose Craddock in the early hours of Saturday, 7 May 2005. They purchased more heroin between approximately 7:30am and 9am that morning, and then returned to Rose Craddock. They found the deceased in a position similar to that in which they had previously left him. Stoupas checked for a pulse but was not sure if there was one. The three of them left Rose Craddock soon after.
10 The prosecution case was that the applicant subsequently returned to the house, alone, and set about 'leaving a false trail'. She later went to her shop in Brighton, arriving there at around midday.
11 Later, on the Saturday evening, the applicant purchased a take-away dinner and went back to Rose Craddock. At about 6:50pm, she telephoned police to report the deceased's death.
12 With regard to the two counts of incitement to murder, the jury were not, of course, told anything about the evidence relating to that matter. On 24 May 2005, the applicant met with Victor Collela, an undercover police officer, who was posing as a hired killer. She told him that she wanted Callinicos and Stoupas dead because they had gone beyond their instructions, which were to tie up the deceased, but not to harm him. She also told Collela that she was afraid that Callinicos and Stoupas would talk. She met with Collela on three further occasions during which they discussed plans for the murder of Callinicos and Stoupas. She made several down payments as a demonstration of the sincerity of her intentions.
13 The applicant, Callinicos and Stoupas were all arrested on 9 June 2005.
14 On 8 November 2006, Callinicos and Stoupas each pleaded guilty to one count of manslaughter. Both agreed to give evidence against the applicant, in relation to the charge of murder, in anticipation of a significant discount on their respective sentences. On 21 February 2007, they were each sentenced to a term of six years' imprisonment. A non-parole period of three years and six months was fixed.
15 The applicant originally relied upon two grounds in support of her application for leave to appeal against conviction. They were:
Ground 1: The verdict is unreasonable and unable to be supported by the evidence.
Ground 2: The learned trial judge erred by permitting the Crown to rely upon an alleged lie told by the applicant as an implied admission of involvement in an unlawful and dangerous undertaking (directions at transcript 1641-1644).
16 The applicant sought, and was granted, leave to add a third ground. That was in the following terms:
Ground 1A: The learned trial judge erred and there has been a miscarriage of justice by reason of the jury being directed that it was open to them to infer that the applicant had an intention to kill from the evidence relating to motive alone (charge at transcript 1644 (27) - 1645 (18)).
Ground 1 - Whether verdict unreasonable and unable to be supported by the evidence
17 The prosecution case was built around its allegation that it was the applicant, and not Callinicos or Stoupas, who had injected the deceased with heroin, and that she had done so with murderous intent. In addition, the case against the applicant required the prosecution to establish that the injection of heroin was relevantly a cause of death.
18 Ground 1 contends that the evidence fell short of establishing any of these three components of the offence of murder. In substance, it is submitted that the jury 'must' have entertained a reasonable doubt as to:
19 We propose to deal with each of these three components of the offence separately.
20 The evidence regarding this issue came largely from Callinicos. He said that the applicant gave him money to purchase approximately $100 worth of heroin for herself, and approximately $200 worth of heroin for Stoupas and himself. Callinicos said that he went and 'scored' the heroin on his own. This involved calling his dealer and meeting him in the street. He said that after 'scoring' the heroin, he 'taxed' the applicant's share in a shed that was located on a path around the side of his house. He added:
Well, I wasn't intending on giving Peter the whole hundred so I thought, when I went and scored, so I went by me self and I left [the applicant] and Sophie in the house, when I got the deals I took her hundred [and] opened it up and took about nine tenths out of it and ... put some sugar in with hers.
21 Callinicos said that he then went into his house, where the applicant and Stoupas were upstairs in his bedroom, and gave the applicant her 'taxed' share of the heroin. He sat on his bed and began to 'mull up', meaning to mix up with water, approximately $100 of his and Stoupas' share of the heroin. He put the mixture into two syringes, one for himself and one for Stoupas. They then injected the heroin. He said that he probably 'stashed' the rest of their share somewhere in his house.
22 Callinicos said that there was a box of empty syringes on the bed. While he 'mulled up' his share of the heroin, the applicant took one of those empty syringes and herself 'mulled up' her 'taxed' share. He said that he saw the applicant put her syringe of heroin into her handbag.
23 According to Callinicos, the three of them then went to Rose Craddock, and came upon the deceased while he was asleep. They overpowered him, and tied him up. After leaving the bedroom, they returned to the kitchen. Callinicos said that they could still hear the deceased moaning. His evidence was that the applicant found some papers on a bench and said, 'oh, here we go, he's closed another account', or words to that effect. Callinicos then said:
[B]ecause he was moaning she said she was going to go into the bedroom and shut him up and she proceeded to - she grabbed her handbag, grabbed a syringe and headed for the bedroom.
Did you see the syringe? --- I'm not 100 per cent - I seen her reach into her handbag, but I can't say if I seen her actually pull it out.
Which syringe? --- I'm referring to the one she mulled up at my house.
Did you see at your house what happened to that syringe? --- She put it in her handbag.
And that's the handbag you're talking about? --- Yes.
And what did you see Shirley do when she said what you've told us about? --- I seen her grab her handbag off the kitchen bench, she put her hand in it, and I assumed she was grabbing the syringe, she ---
Don't worry about assuming. Just tell us what you saw, what you heard? --- She was getting the syringe and she was heading for the bedroom. She said she was going to shut him up.
She left the kitchen, is that right? --- That's right.
What did you do when Shirley Withers left the kitchen? --- Well, because she hadn't found the paperwork, I said - and, like, she had said that.
What did you do? --- I started wandering around the house looking to see if I could find the paperwork, looking to see if there was anything worth pinching.
Did you find any papers? --- No.
And when do you next see Shirley Withers? --- Oh, at some stage I've come out of one room back into the kitchen and she's come on out and - - -
And what, did she have anything with her? --- Um, her handbag.
And did she say anything? --- She said that she'd done her bit and she wanted someone to use - because she wanted Peter still put - wanted Peter out for longer she wanted someone to put the suppository in him.
24 Callinicos said that after leaving Rose Craddock, the applicant dropped both Stoupas and himself at Callinicos' house. He said that he had with him a plastic bag which contained his bloodied clothes, some stolen garments and perfume, and broken handcuffs.
25 In relation to that plastic bag, Callinicos was asked under cross-examination:
And you took it home?---Yes.
You unpacked it? --- I can't remember, one of us unpacked it.
Well, aside from the things you have told us about, did that bag contain anything else? --- No, not that I know of.
Did it contain the empty syringe of heroin that you had used to inject Mr Shellard? --- Excuse me?
Did it contain a syringe of heroin? --- Not that I know of, no.
Did it contain an empty syringe? --- No.
26 Callinicos' evidence was that some hours later he and the applicant made contact by telephone. The applicant asked him to contact his dealer and arrange to buy some more heroin. He said that she asked for the additional heroin because 'she wanted to put Peter out for longer'.
27 An important aspect of this first limb of ground 1 was whether it had been squarely put to Callinicos that it was he, rather than the applicant, who had injected the deceased with heroin.[1] It was submitted that the exchange set out at [25] above, and in particular, the phrase 'that you had used to inject Mr Shellard', met that requirement. It was further submitted that Callinicos' response, 'Excuse me?', indicated that he understood what was being put to him.
28 It was further noted that the prosecutor had taken up the point in re-examination:
Mr Callinicos, can I take you to the first occasion you went to Rose Craddock on the night you've told us about, the occasion with Mrs Withers and Sophie Stoupas, you initially found Mr Shellard asleep in his ... bedroom. On that occasion, for the time that you were there, what do you say to any suggestion that you injected Mr Shellard with heroin? --- I had no reason to. Why would I want to inject him with heroin?
Well, did you inject him or did you not? --- No.
29 We need not delve too deeply into whether the requirements of Browne v Dunn[2] were met by this somewhat elliptic method of cross-examination. We should indicate, however, that the rule laid down in that case exists for good reason. Fairness dictates that if it were to be suggested that it was Callinicos, and not the applicant, who had administered the heroin, that should have been put to him directly, and not by this 'back-door' method.
30 Stoupas' evidence as to what took place at Callinicos' home, at least prior to his arrival in the bedroom with the heroin that he had purchased, accorded broadly with that of Callinicos. However, her account of what happened thereafter varied somewhat from that which he had given.
So when Stanley returned can you tell us about the drugs, as you saw it? --- As I saw, he's made three syringes, OK, I had one.
Yes? --- Stan had one.
Yes? --- And the last one was for Shirley.
And when you say "for Shirley" did you see Shirley in possession of the syringe? --- No, I didn't.
What happened with the heroin that you were provided with? Did you use it? --- Yes.
Did you see anybody else use the heroin? --- Stan used his.
And Shirley, did you see whether or not she used? --- No, I didn't.
Stanley mulls up all three syringes?---Yes.
Mrs Withers does not mull up any syringe, does she? --- No, she doesn't.
Did you use one? --- Yes, I did.
Did Stanley use one? --- Yes.
And is this the case: you don't know what happens with the third one? --- Yes.
And on that occasion, when you were at the house for that first time, you never saw Mrs Withers with a syringe, did you? --- No, I didn't.
And indeed on that whole occasion on the Friday you never saw Mrs Withers with a syringe either at your house, in the car or at Rose Craddock; is that right? --- That's correct.
34 Turning to the events at Rose Craddock, Stoupas said, in her evidence in-chief, that after they had tied up the deceased, they went into the kitchen. The transcript then reads as follows:
Did you all leave together, the bedroom that is, to go to the kitchen or was that done in stages? --- I don't recall.
Can I ask you[r] movements. After you first go to the kitchen, that is, you leave the bedroom, you go to the kitchen and you say while you can't recollect whether you left together or who came first, but you met, shortly after you left the kitchen, there were three of you - sorry, the bedroom, there were three of you in the kitchen, is that right? --- Yes.
What happened from there? Was there any discussion? Was there any movements? What happened? --- Shirley produced a Proladone tablet.
Yes? --- And had asked Stan or said to Stan that she wanted him to insert it into Peter.
And what happened after that? --- Stan said there was no way he would do it.
Yes? --- And then I volunteered. I just wanted to go home.
So what happened? --- I grabbed a blue glove from the kitchen, a blue plastic glove from the kitchen and went in with Shirley and inserted the tablet.
You've gone to the kitchen, the three of you; is that right? From the room, from the bedroom, the three of you have gone to the kitchen? --- Yes.
What's occurred in the kitchen, if anything? --- Shirley's produced a Proladone tablet.
And there's been a discussion, has there, as to what to do with it? --- Yes.
As a result of that discussion you say that you and Shirley go back into the bedroom, correct? --- Yes.
With the tablet, you having got a glove? --- Correct.
That's the first time, after the three of you left that room with Mr Shellard bound, that Shirley went back to that room, that's what you say, isn't it, with you, with the tablet? --- I, I can't really answer that. I don't know whether she had gone back in or not in the meantime standing in the kitchen.
But if she had've you didn't see it? --- I didn't see it, correct.
So to your mind, from your observations, the first time that Mrs Withers goes back into that bedroom after having left the first time is when she returns with you to insert the tablet? --- Yes, this is correct.
36 Before this Court, counsel for the applicant submitted that, according to Stoupas' version of what took place at Rose Craddock, the applicant had no opportunity to return to the bedroom on her own, as Callinicos had claimed, or to inject the deceased with heroin.
37 With regard to what took place after they left Rose Craddock and returned to Callinicos' house, Stoupas was asked in her evidence in-chief:
Where did you go after you got dropped off? --- Upstairs to the bedroom.
And did you take anything from the car? --- The bag, the plastic ---
Could I ask you to focus on the bag for a moment. What happened to the bag after you left the vehicle and went upstairs to your room? --- I bought it with me upstairs.
Did you look inside it? --- Yes, I did.
What was inside it? --- The clothes that I had taken, the mask, perfume and a syringe.
Was there anything that you noted about the syringe? --- That it had been used and that it was just bent.
Do you know how that syringe got in the bag? --- No, I don't.
What do you say about you at Rose Craddock on this occasion, the first occasion you went there when you found initially Mr Shellard asleep? Did you use a syringe at all on that occasion? --- No, I didn't.
Did you see anybody else use a syringe? --- No, I didn't.
On that occasion? --- No.
HIS HONOUR: We heard about a syringe that was unusually large. Was the syringe which you took back into the bedroom an unusually large syringe listen? --- Not on that occasion, no.
38 Stoupas was later asked, under cross-examination:
I just want to return briefly to the question of the bag that you had put the perfumes and the clothes and things in and which you took back to your place in Cheltenham. Did two weeks ago you say this about that bag. I'm at 101, Your Honour. Were you asked this about the bag, "So it was either in your hands or within your sight from the moment that you started to fill it up, correct?" And did you answer "Yes" to that? --- Yes.
"Until you got it home to Cheltenham?" and you answered "Yes" to that? --- Yes.
"And the only other person aside from yourself that put anything in that bag was Stan?" and did you answer, "From what I'm aware, yes"? --- Yes.
True answers? --- Yes.
39 In his closing address to the jury, defence counsel submitted that the evidence given by Callinicos, and that given by Stoupas, differed to such a degree that they ought not be satisfied beyond reasonable doubt that it was the applicant, rather than Callinicos, who had injected the heroin.
40 He identified three major points of difference. First, Callinicos said that it was the applicant who 'mulled up' the third syringe while they were at his house, whereas Stoupas said that it was Callinicos who had 'mulled up' all three. Second, Callinicos said that there was a time between when the deceased was tied up, and when the Proladone suppository was inserted, that the applicant went into the bedroom, on her own, presumably to inject the heroin. Stoupas did not recall such a time. And third, Callinicos said that there was no syringe, used or unused, in the plastic bag, whereas Stoupas said the bag contained a used syringe.
41 Before this Court, that same submission formed the basis of the first limb of ground 1.
42 In our view, it was reasonably open to the jury to accept the evidence of Callinicos, and thereby conclude that it was the applicant, and not him, who injected the deceased with heroin.
43 In the first place, although Stoupas' account differed in some respects from that of Callinicos, it does not follow that his version of events was incapable of acceptance. The question of who 'mulled' the syringes back at Callinicos' house was hardly pivotal, so far as whether it was the applicant, or he, who ultimately administered the heroin.
44 With regard to the applicant having at one stage gone into the deceased's bedroom on her own, it is important to appreciate that Stoupas did not say that this did not happen. Her evidence did not go beyond saying that she did not see this occur. On this point, it was reasonably open to the jury to conclude that Callinicos' account, even if inconsistent with that of Stoupas, was to be preferred.
45 Ground 1 replicates the language used in s 568(1) of the Crimes Act 1958 (Vic). However, in substance, the point being made is that the applicant's conviction on the count of murder should be quashed because the verdict of the jury is 'unsafe and unsatisfactory'.[3]
46 The leading authority regarding this ground is still M v The Queen.[4] There, a majority of the High Court, comprising Mason CJ, and Deane, Dawson and Toohey JJ, observed:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe", or "dangerous or unsafe". In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".
...
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
...
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [5]
48 It would be difficult for this Court to conclude, after carrying out its own independent assessment of the evidence, that it was not open to the jury to prefer the evidence of Callinicos to that of Stoupas. That is so even if it were to be assumed that their accounts differed in any significant respect. The jury had the advantage of seeing and hearing both Callinicos and Stoupas give evidence.[8] In our opinion, Callinicos' evidence, as it appears in the transcript of the trial, does not contain discrepancies, or display inadequacies, or otherwise lack probative force in such a way as to lead us, even making full allowance for the advantages enjoyed by the jury, to think that there is a significant possibility that the applicant has been wrongly found to have administered the heroin.[9]
49 We are not persuaded that the jury 'must', as distinct from 'might', have entertained a doubt as to whether it was the applicant who injected the deceased with heroin. In that regard, it is not sufficient for the applicant to show that there was evidence which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[10]
50 On that basis, we reject the first limb of ground 1.
51 It was submitted at trial, and before this Court, that, far from establishing that the applicant intended to kill the deceased, the evidence pointed towards a conclusion that she had not intended to harm him.
52 Callinicos and Stoupas both said that their understanding of the plan was that they were to tie up the deceased in order to teach him a lesson for the unwanted bondage that the applicant had suffered. They also both said that a second reason for tying him up was to make him feel helpless, and to demonstrate that the applicant had people behind her who were willing to help her. The aim was to persuade him to sign over a house which belonged to the applicant by right, but had been registered in the deceased's name.
53 Both Callinicos and Stoupas said that it was no part of the plan, as they understood it, to cause the deceased any serious harm.
It was also made clear, was it not, that no harm aside from the tying up and the sedating was to come to Mr Shellard? --- It wasn't discussed but, like, I assumed that.
The whole tenor of the conversation was that he not be harmed? --- Well, I'd say so. It wasn't actually emphasised but she said she just wanted it to be quick and just to tie him up.
So you would say you had no intention to harm a hair--- ? --- Of course not.
--- of Mr Shellard? --- Of course not.
And as far as you were aware that was the view of the other two? --- Yes, that's correct.
It was the intention of all as expressed to you, and your intention as well, that aside from the tying up, no harm whatsoever would come to Mr Shellard; do you agree with that? --- Yes, I do.
56 In addition, both Callinicos and Stoupas agreed that the applicant could not have decided to inject the deceased with heroin until the very day of the attack.
At one time she suggested what if she drugs him, like gives him a couple of Xanax and puts them in his coffee or tea, I can't remember what she wanted to do, and then she was going to try and tie him up herself or ring me up to come over and tie him up, but, like, apparently he found out.
Let me just stop you there, I need to have the conversations rather than anything else. Did you have - did you speak with Mrs Withers about Xanax yourself? --- Yes, we did.
"We" - I will just keep you with conversations you were involved with with Mrs Withers for the moment. Did you do anything in relation to Xanax after the conversation with Mrs Withers? --- I gave her a couple.
And where did you have those from, the Xanax? --- I was on them meself.
Did she say anything, after you gave the Xanax to Mrs Withers did she say anything about the Xanax subsequently? --- You mean immediately after?
Well, firstly immediately after? --- Oh, she had asked me, you know, how they worked and all that.
What did you say? --- I told her they were like a sedative, they used to help me sleep, and I probably told her that if she gave them to him they would put him to sleep.
After that conversation did you speak again with Mrs Withers about the Xanax? --- Yep, she rang me up, I think it was a couple of times - couple of days later, I can't remember what time at night it was, but she said that Peter had caught her trying to put the, I don't know how - he knew that she was trying to put the pills in his cup of tea and that she had to flush them down the sink or something, and she asked me if I could get her some more.
...
You have mentioned something about a cup of tea earlier on? --- Yeah.
Tell us about that? --- That, that Peter had caught her and she had to put them down the sink.
Caught her, was anything further said about what it was ---? --- That Peter was getting suspicious.
Did Mrs Withers say anything about what he was being, getting suspicious about? --- About her.
Cup of tea? --- That he was trying - that he, that she was trying to poison him or something, something along those lines.
58 Callinicos said that on the day of the attack, 6 May, the applicant had planned to use a syringe of Proladone to sedate the deceased. He said:
Did she have anything with her? --- When she come - yes, in the car she had, she had a syringe which apparently her brother had supplied her, with the Proladone. She said she was going to inject that, inject Peter with that.
You say she produced the syringe but what was in it as she told you? --- Proladone.
Did you recognise that? --- Yes, I think she had a tablet in her handbag too. She showed me the tablet.
And did Mrs Withers say where she got that Proladone? --- From her brother who apparently was a nurse.
And did you have a conversation with her about the syringe? --- Yes. Like, it was a big needle and, like, it looked like it was going to be hard to, to sort of use it on anyone, like, because of its size, and I suggested, we got talking and, like, me and Sophie hadn't had any heroin that day so I tried to sort of talk her, talk her into giving that to us, and we got to talking and she agreed that maybe heroin might be a better option for him.
And what was that conversation about? --- In relation to putting Peter out, she wanted him out.
And what did you say? --- I agreed with her.
What happened to the syringe with the Proladone in it? --- I took it upstairs. I actually said to her, if she still wanted to use it she could, but, like, she would have to transfer it into a smaller syringe and that way I knew that me and Sophie could get some of that and we used it.
That's at your house, Kevin Street, is that the case? --- Yes.
What happened in relation to the heroin that you discussed? Did anything happen? --- She decided she was going to use heroin to put him out.
How do you know that? Was that communicated to you? --- She was asking me questions about its effects. She had been asking me questions about its effects a couple of times when she had seen me have it and, like, I told her it would have been pretty much the same. That's about it.
59 Under cross-examination, Callinicos was also asked:
Mrs Withers had a mechanism that she proposed to put him to sleep and that was the use of the Proladone? --- That's correct.
But the Proladone was something that interested you, correct? --- Well, I'd never used it before so, yeah, we were interested in it.
So you talked her out of using it so you could get it yourself? --- I wouldn't say I talked her out of using it. She asked me what the comparison with the heroin was, like, were they similar in effects and I told her that they were pretty much the same.
And your object in having that conversation was to get the Proladone for yourself; correct? --- Yes. But she already had a couple more I could have gotten off her anyway.
So when she proposed using the Proladone you had a conversation which resulted in her---? --- Deciding to use the heroin instead of the Proladone.
The conversation resulted in her giving you the Proladone? --- Yes.
And you advised her prior to that happening that she could achieve the same effect of putting him to sleep or sedating him by use of heroin, correct? --- Yes, that was discussed between us. Whether I suggested it or her suggested it I'm not sure.
But she took your advice? --- Yes. She asked me certain advice about it, its effects and all that.
So having come to you with plan A, to use the Proladone, on your advice she changed that plan, you say, and decided to use an injection of heroin to put him to sleep? --- That's correct.
The object of the exercise was to put him to sleep for an hour or two or three? --- I thought so.
60 Although in her evidence in-chief Stoupas agreed that she had injected herself with Proladone on 6 May, she said that she was not present for the conversation between Callinicos and the applicant detailed above.
61 Neither Dr David Ranson, the pathologist who conducted the autopsy, nor Professor Olaf Drummer, the toxicologist who analysed the deceased's blood and urine, were asked to address the question whether the administration of Proladone could potentially cause death.
62 In light of the evidence given by Callinicos and Stoupas, any finding that the applicant intended to kill the deceased had to depend, to a large degree, upon proof that she had a motive to bring about his death. Of course, motive is not itself an element of murder. It need not normally, therefore, be established beyond reasonable doubt. However, it was common ground that, in the particular circumstances of this case, murderous intent could not be established without proof of motive, and the trial judge so directed the jury.
63 The prosecution relied upon a number of factors that were said to demonstrate that the applicant had a motive to kill the deceased. Among them were the following:
64 Nonetheless, the prosecution rightly accepted that none of these factors, on its own, would have been sufficient to establish a motive on the part of the applicant to kill the deceased. As a matter of practical reality, the case, so far as motive was concerned, depended upon the jury finding that the applicant stood to gain financially from his death, or at least concluding that she believed that she would do so.
65 In that regard, there was a substantial body of evidence upon which the prosecution relied. It consisted firstly of evidence that, in the period leading up to the deceased's death, the applicant's business was in dire financial straits. It consisted next of a series of intercepted telephone calls which were recorded shortly after the deceased's death.
66 In order to understand the context in which those calls were made, it is necessary to set out in some detail the evidence that was led regarding a will that the deceased had executed in 2002. Under that will, he left his two former wives the sum of one dollar each, and the remainder of his estate, worth between an estimated 16 and 40 million dollars, to his three daughters. The applicant had been a witness to that will. It necessarily followed that she was not named as a beneficiary thereunder.
67 Shortly after the deceased's death, another will, this time unexecuted, was discovered on his computer. It was clear that it was the applicant who had typed that will. Once again, the deceased left his two former wives the sum of one dollar each. On this occasion, however, the remainder of his estate was left to the applicant.
68 Although the new will purported to have been drawn in 2004, the prosecution led expert evidence to show that it had actually been created in April 2005, just a few weeks before the deceased was killed.
69 In the days and weeks immediately following the death of the deceased, the applicant took part in a series of telephone conversations with various people in which she said repeatedly that she expected to benefit significantly from his estate. Those calls were the subject of lawful intercepts, and the recordings were played to the jury. It is necessary to set out in some detail extracts from those calls.
70 The first conversation was with Dale O'Sullivan. He seemed to have known both the deceased and the applicant well. He described the deceased as one his oldest friends. He lived in the country, and seemed to have had a number of the deceased's motor vehicles at his home. They were, he told the applicant, 'all stuffed'.
71 O'Sullivan was evidently short of money. During the course of this conversation he told the applicant that he had no money. It appeared from a later conversation that the applicant had with Jane Gell, on 26 May, that one of O'Sullivan's motor vehicles Bentley motor vehicles had been repossessed. Although the applicant spoke to O'Sullivan in friendly terms, she prefaced a remark to 'Frank' several days later by saying that she did not like him.
72 During the course of their conversation, there was a discussion about the applicant being denied access to Rose Craddock:[11]
O'Sullivan: If you wanna go in, you can. All you do is rock up -
Withers: They won't let me in.
O'Sullivan: Yeah, that's okay. You say "It's - it's expired - the crime scene time has expired. If you don't have a search warrant I'm ordering you out of the house."
Withers: And they said to me that it's a matter of course whether this is your house or not.
O'Sullivan: Of they know so much don't they. Well you know the story, Peter never owned the house.
Withers: I know he doesn't - that's what I said, he had a -
O'Sullivan: He only had a life tenure.
Withers: Life tenure.
O'Sullivan: And I - heavens knows what's gonna happen now, but -
Withers: I don't know.
O'Sullivan: Um, I did hear from Paul - I said, you know "what was -?" er Paul seemed to know - know everything because he worked beside Peter for years, didn't he?
Withers: Yeah.
O'Sullivan: And I said wh- you know "what's gonna happen with Shirley and all that?"
Withers: Mm.
O'Sullivan: And he said "Oh I don't know" he said "I think his last will left mainly everything to his eldest daughter."
Withers: No, no I typed it all again.
O'Sullivan: Ohh - yeah.
Withers: [inaudible] Yeah.
O'Sullivan: Did you put your name in first? [laughs]
Withers: Well no, he did. Ha ha.
O'Sullivan: [laughs]
Withers: No what he did - what he said was - and Dale we were acting on the basis -
O'Sullivan: This - this must be an older will that y- your one has - has -
Withers: [inaudible] He - he did one four years ago which is what Paul would have seen.
O'Sullivan: That's it, yeah.
Withers: Um, two years ago because we were so, you know, well entrenched and he didn't wanna get married against per se at that time. Um and then I said I don't really wanna get married but, you know, we're in it for ever and as far as I was concerned that's how it was. Um, he loved me, I loved him, everything was working out beautifully. You know Dale, he hasn't started litigation against anyone for over two years. You know, he's just lost - lost that interest in things, he's just a normal person now.
...
O'Sullivan: His litigation days sort of died when you come on the scene.
Withers: Yeah, you know and he was taking his tablets, um was being monitored. He was a little bit unwell, he went through a period about a month ago of accusing me of doing this, that and the other. But I'd been through that with him before, he's done that to me before. Um, it's because he was on a stupid new medication and then he went back to - to - to his normal stuff and he was - he was getting quite good, you know. And, I just don't understand how this could have happened.
O'Sullivan: Well I - I - I believe that um under the circumstances - now - now this new will, where does that place you?
Withers: Well he left me quite a lot of things and basically he still left John as executor but I thought there was a signed copy in the safe and when I - I asked the police yesterday for John, the two detectives and I went in there, and they didn't even know how to open the safe. So I've got the key for the safe and opened it but unfortunately it's not in there.
O'Sullivan: I -
Withers: So I mean an unsigned will is worth shit, isn't it?
O'Sullivan: Oh he never signed your will?
Withers: Well he did and I just don't know where it is. I thought he put it in the safe but when we went through the safe yesterday -
O'Sullivan: He certainly hasn't left it with me.
Withers: Yeah.
...
O'Sullivan: Doesn't Paul - could Paul remember you typing it up or did you do it b - away from him?
Withers: Well see I had the shop then and he faxed me over the old will he did for the, you know with - which way - went - went so the girls got the - the - the split between the three of them. And basically it was held in trust 'till they were what, twenty one or whatever. Um -
O'Sullivan: Yeah, that's the way he left it before. Um -
Withers: Yeah, yeah.
O'Sullivan: But his - his eldest daughter -
Withers: So you know - what's Liz's [inaudible] -
O'Sullivan: Was gonna get -
Withers: You know Liz, you know greedy Liz? You know the first - one of the first things she said to me?
O'Sullivan: No.
Withers: Um - um "Well I suppose that means that Sarah, Clare and - and Jenny are wealthy women." Or something to that effect.
O'Sullivan: Well she's got a shock coming because -
Withers: And I said -
O'Sullivan: Either will doesn't place her very well.
Withers: The will gives her one dollar. Specifically - he made that very clear at the end of the day.
O'Sullivan: She'll challenge it.
Withers: Well if she challenges it she's in for a fight. I'm not a greedy person, I don't expect much but I know what he would have wanted. And there's no way he wanted -
O'Sullivan: Did you buy the house that you live in? Um - with -
Withers: See he bought it in his name for me because um -
O'Sullivan: Oh my God.
Withers: I couldn't get a - a loan.
O'Sullivan: But you put money in that house.
Withers: It's all my money.
O'Sullivan: I know that.
Withers: Um, you know, it's all mine. But I couldn't get a loan -
...
Withers: you know we can work out something that's fair for everyone. And that's what Peter would have wanted.
...
O'Sullivan: all that's going to be left really that'll bring the big money are those antiques.
Withers: Yeah and at the moment what are they worth? Squat really, aren't they?
O'Sullivan: Oh they'll be worth a lot of money, um I wouldn't like to say but, you know, I could sort of - I could visualise but - but - but - I could visualise three hundred. Um I don't think he's got anything - any what they call um world - world famous stuff, but he's got a hell of a lot of stuff -
Withers: He's got one - I know he's got one -
O'Sullivan: That people want. Mm?
Withers: He's got one that he - it's a cup that he got somewhere along the way that's part of the American federation.
O'Sullivan: Ahhh.
Withers: It's - it's very valuable...
...
Withers: I wanna put [the business] on the internet and carry on doing what I said to Peter I'd do for him.
...
Withers: And I don't wanna sell anything of his, you know, so.
...
Withers: he didn't mention John or Ann in the will at all.
O'Sullivan: Well if - if John's a trustee, um - if John's a trustee he - he can do what he likes.
Withers: Mm, well not against the wishes of [inaudible].
...
Withers: I've had money all my life right. I married someone who was you know, and we made a shit load of money. I've always had money so for me to spend five thousand dollars on a handbag or a pair of shoes is nothing, right. And these coppers live in their little, you know, square world and then -
O'Sullivan: Yeah.
Withers: I was up at Sydney at fashion week and um Peter gave me his credit card because he owed me a lot of money and um he said "I shall, you know, all I can give you is my credit card." And I said "Oh darling, I really need you to give me real money but if you want me to do that, I'll use your credit card." Um, so I bought a few bits and pieces up there and then they start crossing their hands, right and saying "Well how come you don't know how much you spent?" And I said "Because money's not a problem to me." And they said "Well why isn't it a problem?" And I said "Because I'm financial in my own right and I know if I ever did, Peter would help me." And they're - you know and it's like -
...
O'Sullivan: Yeah, so I thought that Maori guy might be involved on the basis that he does drink, he goes down to the Inkerman Hotel, he - he drinks with other Maoris. I'm not knocking Maoris -
Withers: No, not it's not him.
O'Sullivan: But let's put it this way - he could talk -
Withers: I - I've got a really good idea who it is. But I'm not telling the cops, that's what I want to talk to you about.
O'Sullivan: Is it more than one person?
Withers: Ah yes.
O'Sullivan: Is it involved with the church?
Withers: No.
O'Sullivan: No.
Withers: No.
O'Sullivan: Oh well.
Withers: They're greedy, dirty, little druggies.
O'Sullivan: They're probably tortured Peter to - to open the safe and give them all his money.
Withers: No, they know Peter didn't have money.
...
Withers: Yes, I - I've got a very good idea who it is.
...
O'Sullivan: No, but you're entitled - see - see if you can get the power off John. I've got the forms if you wanna - if you don't know the wording and all that. I - I become a trustee of my ex-wife's estate -
Withers: Yeah.
O'Sullivan: When she died she left it to her mother, her mother couldn't handle it and Tim's a son anyway.
Withers: Yeah.
O'Sullivan: And she just signed it over to me.
Withers: Okay. Well I'll ask him.
O'Sullivan: So I've got - I've got the wording.
Withers: Alright.
O'Sullivan: So that's not a problem. John's in the mind of er - and you're good at typing.
Withers: Yeah.
O'Sullivan: John's um in the mind of doing it, you wanna strike while the iron's hot.
Withers: Yeah I will.
...
O'Sullivan: As I said, I've - I've lost one of my oldest friends.
Withers: And I've lost the man I love.
O'Sullivan: And I - I don't have money...
...
O'Sullivan: But ah, yeah well as I said you do have powers. You can't be fobbed off Shirley because -
Withers: I won't be fobbed off Dale. I know what Peter's intentions are and -
...
O'Sullivan: But see what you can do with John.
Withers: By God I'll tell you -
O'Sullivan: In getting that -
Withers: I find out who did this, I'll fucking kill them with my hands. And I'll make the bastards suffer.
73 During the course of this conversation, O'Sullivan referred to 'John', the brother of the deceased, and the executor appointed under the 2002 will. The discussion continued:
O'Sullivan: Is [John] gonna try and keep you out of the place?
Withers: No, not at all. No, not at all. He knows that Peter and I loved each other and that, you know, at the end of the day if he needs to thing, to get things tidied up, I've done Peter's books for five years - if he wants it to be tidied up, there's no one better than me to do it, so you know - and it's too bloody involved to try and start from the beginning.
...
O'Sullivan: "And what's gonna happen to all the parts?"
Withers: Well the parts are staying as they are. I intend - I'm putting them on the internet and running Kellow-Falkiner Motors as a going concern and doing it in Peter's memory.
O'Sullivan: Good on you.
Withers: So I intend to make it really good.
...
O'Sullivan: so you - you will be now - what are gonna do about the house?
Withers: Well that's up to the trustees of the Vera Moore Foundation but that'll be worked out. When it comes -
...
Withers: I'm almost gonna tell him to go and get fucked and I'm just gonna go and use Slater and Gordon.
74 'Frank' seems to have known the deceased, his family, and the applicant well. He had knowledge of a valuable item owned by the deceased which was mentioned in conversations between the applicant and him, and also between the applicant and O'Sullivan. During the course of this conversation, the following exchange took place:
Frank: Are his affairs, as best you know at this stage, uh, sufficiently tidy for um, - is there a will? I - he - he -
Withers: Yeah, did a will.
Frank: What's that?
Withers: I typed it.
Frank: Yeah, yeah.
Withers: And - and when -
Frank: Fine, and - and -
Withers: When - when Ian passed away last year -
Frank: Yes.
Withers: He changed it to include me obviously.
Frank: Yeah -
Withers: Um -
Frank: Oh, well I'm pleased to hear that -
Withers: And -
Frank: Actually. No, no, because -
Withers: The thing that annoys me the most is, as I've said - is Liz. Frank, um, I supported Peter all the time that wa-, we were together.
Frank: Mm'mm
Withers: I don't want anyone to think that money has anything to do with me and he, because I would never, ever use Peter for money.
...
Withers: when Ian passed away last year he just said to me, "Shirley, um, you know, you've been -"
...
Frank: No, well I'm - I'm pleased that - if you are included in a will that exists and it's properly signed and er, we - can be acknowledged.
Withers: Yeah.
Frank: I'm pleased that you are part of it, because the fact that you're not married, it just makes it so much more difficult -
Withers: I know.
Frank: To - to what you'd call stake a claim -
Withers: Yeah.
Frank: To derive um, and I'll call it a benefit, and I um -
Withers: I know what you mean.
Frank: Yeah, and I -
Withers: So, it's a lot -
...
Withers: I said, "We're here to find the signed copy of the will", and once again they looked at me like, how dare you talk to us like that.
...
Withers: I don't know that money to me is important.
Frank: Yeah.
Withers: I think Peter would like it to be in the right place.
Frank: Yeah.
Withers: But having said that, I wouldn't want, you know, take advantage of it, 'cos obviously it's very significant.
...
Withers: 'Cos I need legal advice on a few things.
...
Withers: Oh, yeah, I've made it very clear to him and um, as much as I don't like Dale O'Sullivan -
Frank: Ho - ho.
Withers: He went to the Rolls Royce meeting last Thursday -
Frank: Mm'mm.
Withers: Um, and I said, in Peter's memory I will [be] running Kellow Falkiner Motors at the end of the day.
Frank: Mm'mm.
Withers: And I'm going to be putting it on the internet and it's going to be the great company that it should be.
Frank: Yes, yeah.
Withers: And none -
Frank: Yeah.
Withers: Of these little, greasy little scug-buckets are getting their hands on those parts.
...
Withers: You know what I mean? They think I'm stupid. I ran Peter's businesses, I know what that company can do, and -
Frank: Well, have you -
Withers: I want it to be -
Frank: Confidence -
Withers: A great company for Peter.
...
Withers: Yeah, well see Frank, when I first found him I honestly thought he had taken his own life. Um, he for the last, you know - for - he went onto to this stupid trial program called um, [inaudible], and he was um, being monitored weekly by the Monash people.
...
Withers: Now, Peter went really, really strange. He started thinking that everyone was against him. He thought I was plotting against him. He thought, you know, he went very strange about four weeks ago, and I said, "Darling, you have to get off this program, sweetheart. You're not the right person -"
...
Withers: Yeah, and um - yes and no, because there are different families. It's a long story but basically, it was the same group of medication so he didn't have to ween off it. So, um, you know, then he started apologising to me and saying, you know, he's so sorry that, you know, he behaved -
Frank: He's treated you like this -
Withers: The way he was -
Frank: And all this.
Withers: And -
Frank: Yeah, yeah.
Withers: You know? And we were really, really happy, Frank. Um, Peter and I were actually gonna go to Paris later in the year.
Frank: Mm'mm.
Withers: Um, I've talked him into going to there and he was really, really happy. Um, and we were actually gonna get married when we were over there, because we didn't want it to be a big fanfare.
Frank: Mm'mm.
Withers: Peter actually bought me my dress and everything, and um, I just -
...
Frank: Um'mm, he said to me he was uh'hh, writing a will and I don't know whether it was a replacement will, or a - a - his first, I'm unsure, but what he said to me, and I - I've told this to Jane, -
Withers: Yep.
Frank: Uh, that - uh, he was going to leave to her back at the time and I - I can't remember whether it was a hundred dollars or a thousand -
Withers: [laughs]
Frank: Dollars. Er -
Withers: It was exactly one dollar, Frank.
Frank: W-, well it was -
Withers: One -
Frank: Something -
Withers: Dollar. [laughs]
Frank: It was yeah, some incredibly token figure.
Withers: Yeah.
Frank: And it then went on to say if any person disputes this will, -
Withers: Yeah.
Frank: Uh'hh, they are immediately then uh'uh -
Withers: Yeah.
Frank: Denied any entitlement or ben-,
Withers: Absolutely. That's -
Frank: Er, - er, benefit from this will.
Withers: That's - that's - that's about right, Frank.
Frank: Yep, and -
Withers: That's still in the new will.
75 The applicant had a short conversation with Jane Gell, apparently a friend. In the course of that conversation, Gell told the applicant that O'Sullivan had had a Bentley repossessed. The applicant said that she would buy it back, and return it to O'Sullivan.
76 Maria Walsh was employed by the applicant at her store, Suzette Boutique. The gist of their conversation was that business was bad, and that various trade creditors were threatening to sue.
77 Ms Hessey is the applicant's mother. They had the following discussion:
Withers: And I - I have no intention of selling any of all his things as much as all these people want their things - I'm not doing that.
Hessey: No.
Withers: And I've seen a lawyer so you know that that's -
Hessey: Yeah.
Withers: Under control now.
Hessey: Yeah.
Withers: And they're gonna make it very clear to all of them that I'm Peter's next of kin, not anyone else.
Hessey: Yeah.
Withers: And he said legally you are well and truly his next of kin.
Hessey: Yeah.
Withers: Any matters such as this is up to you.
Hessey: Mm.
Withers: And they also said that whether there's a will or not, that you, um, you -
Hessey: Yes.
Withers: Basically - y - yeah.
Hessey: Inherit, yes.
Withers: Yeah.
Hessey: Right.
Withers: He said basically the split - law formula -
Hessey: But there is a d- a will, isn't there?
Withers: Well, I believe there is but, um -
Hessey: You never know.
Withers: We can't find a signed one.
Hessey: You never know, isn't it?
Withers: Yeah, so she said she's gotta find out whether she wants me to find the signed one or not.
Hessey: Mm. Okay, you've got a good lawyer, a good solicitor.
Withers: We've got the best, Mum. We've got Slater and Gordon.
Hessey: Oh'hh best. That's right, good.
Withers: Yep. Peter always wanted me - I if anything happened - for anything -
Hessey: Yeah.
Withers: He told me to use Slater and Gordon.
78 Jenny Shellard is one of the deceased's daughters. The applicant had the following conversation with her:
Withers: But it's just like, um, I just, mm, don't wanna fall into a heap because there's so much legalities that need to happen.
Shellard: Yeah.
Withers: And it's just getting a bit scary but, um, you know I don't know.
Shellard: But that's all not gonna happen for a while, though, is it?
Withers: I'd say that Slater and Gordon - well if Slater and Gordon - well I don't care what John says or what he thinks he's going to do. I know what your dad's wishes are -
Shellard: Yeah.
Withers: And Slater and Gordon were instructed somewhere along the line so they'll get on with it.
...
Withers: everything will work out nicely. As long as we don't get people like Liz trying to be stupid -
Shellard: Yeah, well she will.
Withers: Or John, trying to be stupid. Because if that's what happens, then we're all gonna be up the spout, because in the end it's your dad's money that will be wasted and I will not stand to see that.
...
Withers: Yeah, Slater and Gordon are just instructing them, just so that you know -
Shellard: Yeah.
Withers: Let me to get a letter of authority from him because I need to do a lot of things 'cos it's end of financial year.
79 Laura Skinner was an employee of one of the applicant's trade creditors. They had the following conversation:
Withers: You possibly know that when someone dies, that, um, with assets and things -
Skinner: Yes.
Withers: Because I can't do anything 'till probate comes through.
Skinner: Mm'mm.
Withers: Um, I have seen solicitors. Was sort of well enough on Monday -
Skinner: Mm'mm.
Withers: Just gone by -
Skinner: Mm'mm.
Withers: To do that. Um, I've told them what the situation is because, um, I actually had - we just bought another property on Hawthorn Road and I gave Peter a hundred thousand dollars for the deposit.
Skinner: Mm'mm.
Withers: And so cash wise, Suzette as a company, doesn't have a lot of cash. And Peter was a director of [inaudible] me, as you probably know from our form.
Skinner: Mm'mm.
Withers: So, you know what I mean? I can't -
Skinner: You can't touch anything -
Withers: [inaudible]
Skinner: Right now.
Withers: No, no. And I know that, you know, obviously I'm happy to pay interest because probate will happen, but it's not gonna happen for thirty days at least I'd imagine.
Skinner: Mm'mm.
Withers: Um, and I have asked Slater and Gordon - I'm just preparing a list of all my creditors -
Skinner: Mm'mm.
Withers: Just to tell them that please, don't be alarmed.
...
Withers: So, as I said, because I've got Slater and Gordon and they're like, you know, big gun lawyers -
...
Withers: Um, then they're idiots. So, um, you know, Slater and Gordon will do a, um, um, like a - a notice to all creditors advising them -
Skinner: Mm'mm.
Withers: You know that - I don't know how they'll word it, but I'm sure -
Skinner: Yeah, yeah I understand - I understand.
Withers: They'll do a good job, and just tell people that until probate is granted - and unfortunately Peter has two very greedy ex wives.
Skinner: Mm'mm.
Withers: So I'm sure it's gonna end up in the Supreme Court. They've already told me, you know, be prepared for it to go to the Supreme Court. So the thing is that what they're trying to do is, um, get me a hundred thousand dollars, like emergency fund sort of, you know, to carry on the businesses.
Skinner: Yes -
Withers: Um -
Skinner: So you can continue business.
Withers: That's right, so at least I can pay people something. Um, and trust me, you're at the top of the list -
Skinner: That's okay Shirley.
Withers: 'Cos I know we owe you forty thousand -
Skinner: I know Shirley.
80 The applicant spoke with 'Cherie', a receptionist at Slater & Gordon, solicitors. It seems that the applicant had engaged Slater & Gordon to protect her interests in relation to the deceased's estate. The following discussion took place:
Cherie: Good afternoon, Slater and Gordon, this is Cherie.
Withers: Hi I was wondering if I could leave a message for Julie Grainger, please.
Cherie: May I ask who's calling?
Withers: Yes, it's Shirley Withers.
...
Withers: Um, tell her, um, I don't know how it's happened, but apparently John Shellard has been granted probate on Peter Shellard's estate. I'm really -
Cherie: John Shellard.
Withers: Shellard, mm.
...
Cherie: And what's the name of the estate?
Withers: It's Peter Shellard.
81 As we have previously indicated, the Crown accepted that in this case intent could not be established without proof of motive. It was the common position of the parties that the judge should instruct the jury that it must be satisfied beyond reasonable doubt of a motive to kill before that motive could be used to support an inference that the applicant had intended to kill the deceased, and that direction was given.
82 As the Crown put the matter, the applicant had the relevant intention - of administering the deceased a lethal injection - before she and the others went to Rose Craddock on the night of the killing. To emphasise the point, it was not the Crown case that the applicant suddenly decided to kill the deceased when she and the others were at Rose Craddock's. That is so despite Callinicos' evidence that the applicant said, when she heard the deceased continuing to moan after he had been struck and tied up, and after the three assailants had returned to the kitchen, that she was going to 'shut him up'.
83 Before returning to the evidence concerning motive, we should summarise again the other evidence bearing upon intent. It shows why, in our opinion, the Crown relied so heavily upon motive in asking the jury to infer an intent to kill.
84 A number of aspects of the evidence of Callinicos, and to a lesser extent Stoupas, contraindicated the applicant having an intent to kill.
85 First, each of them said, with more or less particularity, that the applicant told them she wished to tie up the deceased in order to achieve specific purposes, one of which depended, for its effectuation, upon him being alive. That expressed purpose was to oblige the deceased to 'sign over' the applicant's house, which had been put into his name so as to keep any part of it out of the hands of her former husband. The idea of having the deceased 'sign over' the house to her, let alone when under compulsion, was simplistic. It was akin to a number of things which the applicant said to others, after the deceased's death, about the financial consequences for her of his death. But so to say does not mean that it was not her belief that she could get her house 'signed over'.
86 Second, each of Callinicos and Stoupas said that the applicant had indicated a wish to sedate the deceased, not kill him.
87 Callinicos gave evidence that the applicant first spoke with him about a plan to sedate the deceased with Xanax before tying him up. He said that he gave the applicant a couple of Xanax tablets, telling her that they were 'like a sedative', and that they 'used to make [him] sleep'.
88 The plan to drug the deceased by use of Xanax having come to nothing, on the morning of the killing, the applicant came to Callinicos' house with a syringe containing Proladone, and a Proladone suppository. She told him that she was going to inject the deceased with the drug in order to put him to sleep.[12] Proladone is an opioid analgesic which can have a sedative effect.
89 By this stage, it seems, the applicant was saying that she intended to sedate the deceased in order to give her time to find the paperwork pertaining to her home.
90 Callinicos gave evidence, in substance, that he talked the applicant out of attempting to use the injectable Proladone. One reason was that he wanted to try it himself. Then, either he or the applicant (probably he) suggested the use of heroin instead. He told her that its effects would be pretty much the same as Proladone. He gave evidence that the applicant had seen the effect upon him of using heroin in the past. To complete the picture, he said that both he and Stoupas injected themselves with the Proladone that day.[13] It was common ground that he bought heroin, some of which he gave to the applicant, and some of which he used to make up two syringes which he and Stoupas then used.
91 In the event, the Crown case as to intent rested on a foundation where the applicant, quite apart from what she said were the purposes of subjecting the deceased to ingestion of a drug, vacillated about which drug to use. She began with two prescription drugs (one of them in a very small quantity), and was then, in effect, talked into using heroin by Callinicos, his motive being to obtain the second prescription drug for himself.
92 A killing might be planned, but the planning might be haphazard. If the Crown case as to intent was to be made out, that must have been the situation here. We consider, however, that the burden of the evidence to which we have thus far referred in fact tended strongly against a conclusion that the applicant did plan to kill the deceased.
93 We next consider the events which occurred at Rose Craddock on the night of the killing. The applicant and her co-offenders attempted to restrain the deceased whilst he slept. They failed in that attempt. The blows which Stoupas struck were unplanned. They were, on the evidence, an instinctive response to the deceased having bitten her on the finger.
94 Having subdued the deceased, the three then left his bedroom. The applicant, who it must be assumed for present purposes had the heroin-filled syringe in her possession, had not used it. This was compatible with the deceased having been restrained and being sufficiently comatose to give the applicant time to search out 'the paperwork' without noisy interruption.
95 The deceased was heard continuing to moan. On Callinicos' evidence, that provoked the applicant to re-enter his bedroom and (inferentially) inject him with heroin.
96 An argument that the applicant took an opportunity to re-enter the deceased's bedroom alone, and there execute what she had always planned to do - kill him - is confronted by difficulty. Callinicos, at least, knew that the applicant intended to inject the deceased with heroin. They had discussed it. He had given her the heroin in substitution for the syringe of Proladone. In those circumstances, there was no reason why the applicant should not have injected the deceased when the three of them first subdued him. Further, there was no reason for her to act surreptitiously.
97 We then consider the injection discretely. Although the matter is addressed in detail later in our reasons, it may be accepted, for present purposes, that in combination with the deceased's coronary disease, his head injury, and the psychological stress of him being restrained, the heroin was a 'significant' or 'substantial' cause of death. That said, the quantity of drug injected, standing alone, 'was an improbable cause of death'. The furthest that Professor Drummer was prepared to go was that the concentration of heroin in the blood was:
within the range capable of causing death or potential to cause death but it's not high, it's not average, it's on the low side of average, but is within the concentration that we know can cause death in the right circumstance
what I can say is that people have died from the use of heroin in concentrations, at this concentration or even less than this in Victoria and it has occurred on a number of occasions.
98 Professor Drummer's evidence suggested the improbability that the use of heroin in this quantity would cause death. The applicant was not a toxicologist. But she had been told by Callinicos that its effect would be similar to that of Proladone, and she knew that the heroin bought by Callinicos had been split three ways. She had either 'mulled up' her share, or Callinicos had done it. She did not know, on Callinicos' account, that he had 'taxed' her share. It is not clear whether she knew that Callinicos and Stoupas had injected themselves with the mulled heroin. But it is improbable that she could have believed that Callinicos and Stoupas intended to inject themselves with potentially lethal doses of heroin.
99 Further according to Callinicos, the applicant had seen the effect upon him of using heroin in the past, and had bought heroin from him purportedly for use by the caretaker at Rose Craddock.
100 Still further, Callinicos gave evidence of having supplied the applicant with amphetamine for her own use over the years, and that she was prescribed buprenorphine, which he described as being 'like methadone', and 'for opiate users'.
101 In all, this evidence tended to show, albeit that the applicant was said to be a person with little, if any, experience with heroin, that she was equipped to have an understanding of the likely impact of an injection of heroin of the particular quantity, and so tended against the applicant having had an intent to kill. All that can be theorised to the contrary is that the applicant knew the deceased to be a man in his sixties who was taking other medication, that he had a heart condition, and that she might perhaps have thought that the heroin would have a disproportionate effect upon him.
102 A number of other circumstances fall for consideration in the context of facts in evidence bearing on intent. These are first, 'grooming' of Callinicos and Stoupas by the applicant; second, concealment of identity on the occasion of first entry to Rose Craddock; third, insertion of the Proladone suppository; fourth, the applicant's request to Callinicos, on the morning after the killing, to buy more heroin because 'she wanted to put [the deceased] out for longer'; and fifth, the applicant's direction - though it came to nothing - that the three of them enter by a window on the morning of 7 May so that it would look like someone had broken into the house.
103 As regards 'grooming', the jury could readily have concluded that the applicant groomed Callinicos and Stoupas so that they would assist her in some way or another. She lent them her motor vehicle. She made them gifts. She provided money for them to gamble at the Casino. The particular point of this grooming is problematic. Callinicos was the applicant's drug supplier. He also became her contact point with a man whom he recommended as someone to assist in tying up the deceased, although the applicant did not take up the offer of the man's services to assist her in doing so. The situation with Stoupas is more problematic again. On the evidence, she was not going to participate in the invasion of Rose Craddock until the last moment.
104 As regards concealment of identity, Callinicos, at least, entered Rose Craddock on the first occasion dressed so that his face could not have been seen by the deceased. Again, the applicant first put a pillow, then a pillow case over the deceased's face, so it was said, to prevent him observing his assailants. Yet the applicant contemplated, according to what she told Callinicos and Stoupas, forcing the deceased to sign some documents. It was inevitable that he must have seen the applicant, at least, in those circumstances. But it could be consistent with that scenario that an attempt should be made to conceal the identities of Callinicos and Stoupas.
105 Next, the Proladone suppository. The applicant told Callinicos and Stoupas that she wanted to insert the suppository because she wanted the deceased 'out' for a longer period. By then, it is to be assumed, she had injected the heroin into him. The significance of her expressed desire, which was carried to execution, is uncertain. One interpretation is that the applicant intended to ensure the deceased's death by loading up his system with drugs having a sedative effect. Another interpretation is that the applicant wanted more time to search for the elusive paperwork.
106 Moving to the further purchase of heroin, the applicant told Callinicos, on the morning of 7 May, that she wanted him to purchase heroin and speed. As to the former, so far as she wanted it for her own purposes, she told him that it was because she had to go to work and wanted to put the deceased out for longer.
107 In any event, although heroin was acquired for use by the applicant, the deceased was found to be comatose - in fact he was dead, but on the evidence Stoupas did not establish this to be so - and there was no evidence that the applicant in fact administered it.
108 This incident, like aspects of the events which occurred on 6 May, was of uncertain significance. It could readily be thought that the applicant's explanation as to why she wanted the deceased 'out for longer' was, if true, both callous and bizarre. Nevertheless, the incident did not show, plainly, that what had been done on the night of 6 May had been done with intent to kill.
109 Finally, there was the direction to enter by a window. Both Callinicos and Stoupas gave evidence that the applicant gave such a direction to them on the morning of 7 May. Callinicos stated that the applicant said that doing so would make it look as if someone had broken into the house. According to what the applicant had earlier told Callinicos and Stoupas, however, she had intended to confront the deceased after he had been tied up. In that event, there had been no need to stage a break-in.
110 The apparent inconsistency between the direction to enter by a window, though it came to nothing, and the applicant's plan as earlier revealed, is troubling. That is so even if it should be inferred that the plan had evolved by the morning of 7 May into one of keeping the deceased sedated for a longer time so that the applicant could go to work on that day, and then return to search his home for the elusive documents. Be that as may, it seems that the Crown made no attempt to rely upon the alleged direction in proof of the applicant's guilt of murder.
111 The circumstances to which we have referred at [85] to [110] tell, when considered individually, more or less strongly against a finding that the applicant intended to kill the deceased. On the other hand, they were inter-related with evidence which showed her financial situation to be poor, and the telephone conversations after the death of the deceased, which pointed towards a motive to kill. That motive, upon which the Crown relied, was the applicant's belief, erroneous as it turned out, that she would benefit financially from the death of the deceased.
112 The recorded conversations were replete with difficulties of interpretation. One difficulty which confronted the jury when it was considering proof of motive was to detach fact from fiction.
113 That said, the applicant did make remarks, and things were said in conversation, which might have led to an inference that she did genuinely believe, before the deceased's death, that she stood to gain financially by his death. So:
(1) in her conversation with O'Sullivan on 11 May when she stated that she was 'legally (his) wife'; although 'we might not have been married';
(2) in response to O'Sullivan's remark that the deceased had left 'mainly everything' to his eldest daughter, the applicant stated that she had typed a new will in which, by his direction, her name was in first. She was evidently referring to the draft will found in the computer memory, dated 2004 but made in April 2005;
(3) the applicant told O'Sullivan that there was a signed copy of the new will in the safe, but that it had not been there when the safe had been opened the previous day. Then she said that she thought it had been put in the safe;
(4) the applicant further told O'Sullivan that the new will gave one of the deceased's former wives $1, and that, if the woman challenged it, she was 'in for a fight';
(5) the applicant told O'Sullivan on 11 May that she would not be 'fobbed off', for she knew what the deceased's intentions were;
(6) on 12 May, the applicant told O'Sullivan that she didn't 'plan on doing anything with the Rolls Royce'; and that she intended putting a spare parts inventory 'on the internet and running Kellow-Falkiner Motors as a going concern and doing it in Peter's memory';
(7) on 16 May, she told Frank that there was a will, that she had typed it, and that 'when Ian passed away last year ... he changed it to include me obviously';
(8) she was told by Frank that he was pleased that she was included 'in a will that exists and it's properly signed', because otherwise it would be much more difficult for the applicant to 'stake a claim', she not having been married to the deceased. The applicant agreed;
(9) on 16 May, in conversation with 'Frank', the applicant stated that a specific valuable item was safe. Thereafter, in the conversation, there was much discussion about whether, to whom, and for what price, the item might be sold;
(10) also on 16 May, the applicant told Frank that in a conversation with the police (apparently it took a place 'the other day') she had said that 'we're here to find the signed copy of the will';
(11) the applicant repeated to 'Frank' that 'in Peter's memory [she would be] running Kellow Falkiner Motors at the end of the day';
(12) the applicant said that the bequest of $1 to the deceased's first wife was 'still in the new will';
(13) on 2 June, the applicant told her mother that she had no intention of selling any of deceased's things. She had seen a solicitor, and all was now under control;
(14) there followed the exchange which we set out at [77];
(15) on 5 June, in conversation with Jenny Shellard, the applicant said that 'there's so much legalities that need to happen'. She then referred to the solicitors whom she had engaged and said that she knew what the deceased's wishes were;
(16) on 7 June, speaking to Laura Skinner, the applicant stated, in effect, that she could not pay a trade debt until 'probate comes through'. She later said that the deceased had 'two very greedy ex-wives', and that she was 'sure it would end up in the Supreme Court'; and
(17) on 9 June, the applicant contacted her solicitors, informing them that apparently the deceased's brother had been granted probate.
114 This material contained a number of contradictory statements. There is no doubt that the applicant told several people that the deceased had signed the (2005) will which was found in the computer memory. There is also no doubt that she misrepresented when the draft will had been prepared. So also, she raised the prospect that there was a signed will in her favour, but that it could not be found. On the other hand, she said at times that she knew what the deceased's intentions had been, which rather implied that he had wanted to do something, but had not succeeded in doing so. Again, she said at times that she intended to carry on the deceased's business, and that she did not intend to sell his assets. This implied an assertion that she had the right to do, or not do, those things. But her account to her mother on 2 June of what the solicitor had told her about her rights was essentially nonsense.
115 It is difficult to make sense of what the applicant said about a signed will. Perhaps her story about a signed will was all a chimera, designed to get people 'on side' so that she could press for an entitlement on moral, if not legal, grounds.
116 Further with respect to there being a will in her favour, the applicant's conversation with Laura Skinner was readily explicable as keeping a creditor at bay. We would take little, if anything, from it.
117 Finally upon the question of what will existed, the applicant's conversation with the solicitor's receptionist, on 7 June 2003, was improbably accurate, at least insofar as it suggested that probate of a will of the deceased had been granted. But otherwise the implicit suggestion that the executor had a will, which he would seek to prove, was incompatible with that will being the alleged 'new' will. The fact that the applicant contacted the solicitor implied a belief that a contest of some kind was in the offing. But what could it be if there was no new will? The applicant's account of what the solicitor had earlier told her was, as we have said, essentially nonsense.
118 There was an added problem with giving any reliable meaning to what the applicant meant, more generally, in the conversations to which we have referred. In those conversations, the applicant showed herself to be a liar, a hypocrite, a racist and a snob. She conducted herself in ways which were misleading, or at least difficult to fathom. Thus, for example:
(1) the applicant repeatedly cried in telling O'Sullivan and others how awful it all was. These were either false tears or lies; or else the response of someone who had wanted the deceased taught a lesson, but not killed;
(2) the applicant repeatedly said that she would like to get her hands on the killers. She said on one occasion that she would 'fucking kill them with [her] hands', and 'make the bastards suffer'. Apart from the fact that, for obvious reasons, she did not identify the killers, it is the fact that she was then inciting an undercover policeman to kill her co-offenders, which supports her contention that they had gone too far;
(3) the applicant told lies about the circumstances of the killing. She said nothing, obviously, about her own involvement in the events. She hinted that she had identified some likely candidates as the killers. Indeed, she referred at one point to 'two druggies';
(4) the applicant said that she and the deceased had been through a rough patch a month or so before his death (this would have coincided, broadly, with the deceased taking action to prevent her using his monies to prop up her business), but that things had got better. That scenario sat ill with what she told her co-offenders about the situation; and
(5) the applicant falsely stated - for instance, to O'Sullivan on 11 May that she had had money all her life. She had thus sought to explain to the police, as we read it, why it was that she had used one of the deceased's credit cards whilst she was interstate, because money was not a problem for her. Perhaps in a fantasy world where she had a grossly overstocked and unprofitable boutique in an upmarket suburb, what she said was her perception of the truth. Her view of the world seems to have been one in which a house in Toorak could be criticised as 'a shit box', and 'not in a good part', and where the deceased's ex-wives, the police and Asians were all readily denigrated.
119 The applicant showed herself, by these conversations, to be a thoroughly unpleasant person. That was not a basis, however, for finding, to the criminal standard, that she had a motive to kill.
120 In the end it is unnecessary to come to any final conclusion as to whether a finding by the jury, that there was such a motive, would be unsafe, or unsatisfactory. For the fact is that, even if a motive of that kind were established, there was in our view a necessary doubt that the Crown had proved intent to kill. Regard must be had to all the evidence which could bear upon proof of intent, most particularly the evidence led as to the circumstances of the killing and its preamble. We have earlier analysed that evidence. In our opinion, even given proof of motive to kill, the entirety of the evidence went beyond a situation in which the jury might have entertained a reasonable doubt about the applicant's guilt. It was a situation in which it must have entertained such a doubt.[14]
121 We have come to that conclusion fully conscious of the weight that the jury could reasonably have given to the telephone intercepts. However, that evidence must be considered in light of all the countervailing factors which we have set out above. The most that could safely be concluded, from those intercepts, was that after the death of the deceased the applicant hoped, or planned, or somehow thought, that she might get some part of the estate, whether it be by the 'new' will, or by some form of moral persuasion, or by saying things about what she would do which indicated an apparent entitlement to assets of the estate.
122 The Crown theory that this was a planned execution, committed for financial gain, seems highly problematic. There are limits to how much probative value can be ascribed to motive when considering whether intent has been established. That must be so, at least in the face of evidence of the kind led in this case, which, as we have said, points strongly away from such intent.
123 In making our own independent assessment of the evidence, in accordance with M v The Queen, we are of the view that it would be dangerous in all the circumstances to allow this conviction to stand. We are acutely conscious of the fact that the jury was the body entrusted with the primary responsibility of determining guilt or innocence. Nonetheless, on the evidence as a whole, we are not satisfied that the Crown established murderous intent beyond reasonable doubt. And, as the High Court observed, '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'.[15]
124 As the case was conducted, then, we consider that there was a necessary doubt that the Crown proved intent to kill.
125 It was contended on behalf of the applicant that the jury could not properly have been satisfied that the heroin, even if administered by her, was a substantial and operative cause of the deceased's death. We are not persuaded by that submission.
126 Dr Ranson's evidence clearly allowed for a finding to be made that Mr Shellard's death resulted from a combination of heroin, blows to the head, and a pre-existing heart condition. Based upon that evidence alone, it was reasonably open to the jury to find that the heroin was a substantial and operative cause of death.
127 It is necessary to set out in some detail what Dr Ranson said about that matter. He gave the cause of death as the 'effects of heroin and head injury in a man with coronary artery arthrosclerosis'. He continued:
Well, the first comment I made was about the natural disease that I found, describing the single focus of occlusion of the right coronary artery of 70 per cent, a degree that can be associated with people having symptoms and having problems with their heart function and a degree which can be sometimes associated with symptoms of heart problems and can be associated with sudden death...
I also commented that the head injury that he'd received was associated with bleeding around the brain, the subarachnoid haemorrhage.
...
I also commented that an individual who is tied or restrained and/or may be trying to protect themselves restricting themselves from that sort of process could lead to physiological stress so someone in that situation could be at increased physiology stress. I commented again that an individual who's got head injuries with a subarachnoid haemorrhage has received a significant head injury and one that may be associated with loss of consciousness or derangement in cerebral function, brain function and could lead to death.
...
although this man suffered head injuries of a type that may cause death, it is clear from toxicology that shortly before death he receives an injection of heroin. Narcotic drugs such as morphine and heroin can depress central nervous system activity and cause death. In this man the presence of a head injury of this severity could also depress the central nervous system activity and cause death.
...
in arriving at the cause of death I took into account the key factors that were significant operating conditions that could have caused and contributed to his death and in this case it was the head injury with associated subarachnoid haemorrhage, the bleeding around the brain, the presence of the narcotic drug, heroin and morphine, and the fact that in this environment of these potentially fatal factors he also had an underlying natural disease process that will make him more vulnerable to conditions of physiological stress, that being his heart disease.
128 Under cross examination, Dr Ranson accepted that not everyone dies from a single injection of heroin. That was, if we may say so, an obvious answer to a pointless question. However, he also stated:
In this particular case there were other factors operating which would perhaps make this particular person more vulnerable.
129 He agreed that it was entirely possible that death had occurred soon after the blows to the head were inflicted. However, he pointedly refused to accede to the suggestion, put to him in specific terms, that the heroin may have had nothing to do with the deceased's death. The following exchange took place:
And if [the heroin] did have that lesser effect on him, then it had nothing to do with his death, do you agree with that? --- Well, no. That's where we probably would depart here. Because what I am saying is that what we do have are factors that are operating or at least are present at the same time, have the capacity to cause death, death occurred and they all appeared to be operating.
...
Perhaps I will come at it in this way. If there had been no evidence of an injection of heroin but there was evidence of blows being struck to his head, you would say that the cause of death were the blows to the head, would you not? --- I would have probably said it was head injury or subarachnoid haemorrhage head injury in a man with coronary artery arthrosclerosis yes and that would be sufficient.
And if there was no evidence of an injection of heroin and no evidence of his being hit to the head you would have said he died of heart disease, correct? --- Yes. A person could be found suddenly and unexpectedly dead with that degree of heart disease alone.
...
The long and short of it is that whilst there are three of the factors that you have spoken about, it may be that only one of them was the factor that occasioned his death? --- Well, it's certainly possible that only one is a factor. However, all three are there and they all appear to be having some operative effect, both the head injury and the drug is at a level which can cause serious injury and the heart disease is at a level which can cause the heart to fail and have a cardiac arrest.[16]
130 In addition, Professor Drummer gave evidence that the deceased was given heroin 'probably some minutes before his death'. [17]
131 Under cross-examination, Professor Drummer was asked the following questions, and gave the following answers:
This particular concentration of heroin was quite low, do you agree with that? --- The morphine in the blood which is probably the most direct measure of the amount of heroin that might have been received, taken by the deceased, is on the lower side of the average. It's within the range capable of causing death or potential to cause death but it's not high, it's not average, it's on the low side of average, but is within the concentration that we know can cause death in the right circumstance.
So would you agree with this: the taking of an amount of heroin that gives rise to this concentration of morphine in the blood whilst it might cause death is unlikely to have done so? --- No, I didn't say that. I see that the concentration of morphine in the blood given that it was likely to have been the result of injection or administration of morphine or heroin several minutes or so prior to death is not high but it's within the concentration known to cause death in some individuals but I can't say absolutely a .1 milligram per litre that this person necessarily died from heroin or indeed anybody else. What I can say is that people have died from the use of heroin at concentrations, at this concentration or even less than this in Victoria and it has occurred on a number of occasions. But the concentration by itself does not absolutely mean that the person had to die from that amount of heroin or that amount of morphine.
Even if the concentration had have been a lot higher than the one we've got here and that had been what you found?---If the concentration is higher one might expect a higher probability of sudden death, if one could do that experiment, but I can say there is no good relationship between blood concentration of morphine in people using heroin and the outcome in this case being death. There is no good correlation. I can say the average concentration of morphine in a thousand heroin users in Victoria over the last ten years is .2, .3 milligrams per litre, but within that it goes from lower than .1 to much higher than .1 milligram per litre, so the concentration is within the range where it can cause death in the right circumstance.
I think we're in agreement. But what I'm putting to you is this: that whilst there's been known cases where people have taken heroin resulting in morphine concentration in the blood similar to what we've got here, so there have been known cases of death where people have taken an injection which resulted in this concentration of morphine in the blood?---Yes.
...
You would agree with this, would you not: the highest you could put it would be that taking heroin which resulted in this concentration of morphine in the blood was a possibility leading to death?---Yes, it's certainly a possibility. I can't say it has to have caused death.
And would you agree with this: that you cannot categorically say that in this case the injection of heroin or however it was taken necessarily caused or had a contribution to the death of Mr Shellard? And I might have the better of you, if I be fair, I'm reading from something you said?---I'm just putting it in the right context. I've already said that the concentration by itself doesn't mean it had to occur from that. The interpretation of whether death occurred in part or fully from the use of heroin or exposure to heroin comes from consideration of all of the factors; the autopsy finding that you heard before from Professor Ranson, the presence of natural disease and injuries perhaps, so in a sense it's a consideration of a number of factors and it may be a conclusion reached by the jury rather than just by myself, but all I can say it's present, its system of heroin use was probably recent, several minutes, but the concentration itself does not necessarily mean that by itself the cause of death was caused by heroin, yes.
I may have misled you by talking about the concentration. Forget the concentration for the moment. In this case one can only say, let me suggest to you, that the heroin injection or administration in this case being a cause of death, one can only put that as a possibility?---Yes, in the sense that one would need to take it as a possibility to consider in other factors as to his cause of death.[18]
132 The starting point when considering whether there was adequate evidence regarding causation must be the decision of the High Court in Royall v The Queen.[19] That case is not without its difficulties. It is not easy to distil a clear ratio decidendi from the various judgments of the members of the Court. However, there are some propositions that would seem to have found general favour.
133 The first is that, in relation to murder, the prosecution must establish that the conduct of the accused, whether by act or omission, contributed significantly to the death of the victim. However, it need not establish that that conduct was the sole, direct, or immediate cause of death. The purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence.
134 The second is that the matter is not one for philosophic, or scientific, debate but is rather to be resolved by the jury applying their common sense to the facts as they find them. In doing so, the jury must, all the while, appreciate that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
135 The decision in Royall v The Queen was helpfully explained by Brooking JA in R v Franklin.[20] His Honour said:
It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the "main" or "most substantial" cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a "significant" or "substantial" cause of death. In the last 50 years a good deal of authority has accumulated on the subject, culminating, for Australian purposes, in the decision of the High Court in Royall v The Queen. The issue of the cause of death is of course one of fact for the jury, and while many if not most cases of homicide call for no direction about the principles of law concerning causation there are some which do. The decisions in which those principles are discussed are those in which either the judge's charge on causation or the jury's entitlement to find a causal connection is called in question. Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. For example, where a wound was inflicted by the accused it may be argued that the "chain of causation" has been broken by unskilful medical treatment, or by the victim's refusal on religious grounds of a blood transfusion. On the other hand, the question may be whether death has been caused by aggressive behaviour of the accused where the victim has jumped from a window or moving car. The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.
One such category is that of the infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case, where there is no complicating factor which may be put forward as "breaking the chain of causation", it is enough for the jury to enquire whether the attack of the accused made a substantial contribution to the death. The present was such a case: the victim was subjected to a prolonged attack (extending on and off over some hours) by the applicant and a prolonged attack (also extending over some hours) by other men. It was not and could not have been suggested that there was some "intervening" or "supervening" or "superseding" act or event which "broke the chain of causation". Problems of the kind considered, for example, in Royall, did not arise. It was enough for the jury to consider whether the applicant's acts were shown to have substantially contributed to the death, even though the acts of the other assailants may also have been a substantial, and even a more substantial, cause. The issue of causation was to be resolved without any occasion to consider whether some intervening agency absolved the applicant. It was enough to consider what causal connection there was in fact, and so to ask whether, in the light of the medical and the relevant lay evidence, the injuries inflicted by the applicant had substantially contributed to the boy's death. This approach is supported by Royall and Osland [v The Queen [1998] HCA 75; (1998) 197 CLR 316] and by authorities dealing specifically with death following the independent and substantially contemporaneous infliction of injuries by two or more persons. The approach in the United States appears to be the same.
Had the present jury been asked to consider the simple question whether, in the light of the medical and the relevant lay evidence, the injuries inflicted by the applicant had substantially contributed to the boy's death, it would have undoubtedly been open to them to answer it in the affirmative.[21]
136 More recently, this Court, in R v Lam,[22] cited the above passage with approval. R v Lam affirmed that the question to be considered in any case involving multiple offenders, all of whom are charged jointly with the offence of murder, is whether the acts of the principal offender remain an 'operating and substantial' cause of death, at least where, at a later point, other offenders have also inflicted injuries upon the victim.
137 In light of the reasoning in Royall v The Queen, R v Franklin and R v Lam, the evidence of Dr Ranson and Professor Drummer was sufficient, in our view, to have enabled the jury to find, beyond reasonable doubt, that the heroin injected into the deceased just moments before his death was an 'operating and substantial' cause of that death.
138 In that regard, it should be noted that the present case differs from, for example, R v Klamo,[23] a case to which we were referred, and upon which the applicant strongly relied. In R v Klamo, the applicant admitted to having shaken his four-week old son about a week before the baby died. He was convicted of manslaughter. The prosecution led evidence at the trial from a pathologist who concluded that the baby's death was caused by a subdural haemorrhage which had occurred some time in the 24 hours before death. The pathologist identified three possible causes of the fatal haemorrhage; (a) a spontaneous re-bleed which the witness was satisfied was not the cause, but which he said he could not rule out; (b) direct trauma; and (c) indirect trauma, possibly resulting from shaking. Importantly, the pathologist found no evidence indicating that either of those latter two events was the cause of death. However, he acknowledged that he could not altogether exclude either of them as a possibility.
139 In R v Klamo, the prosecution case was that the baby's death resulted from his having been shaken by the applicant on the night he died or, alternatively, the baby's having been shaken by the applicant on the earlier occasion. This Court, on appeal, held that it had not been open to the jury, in light of the expert medical evidence in that case, to conclude beyond reasonable doubt that the applicant had caused the baby's death. Importantly, that was because the medical evidence in that case did not purport to establish any affirmative conclusion, beyond the fact that the baby had died from a subdural haemorrhage. There was no other evidence that could possibly have justified the jury in reaching an affirmative conclusion, beyond reasonable doubt, that the cause of death was either a re-bleed from the first shaking, or a fresh act of shaking.
140 The present case is quite different. Here, Dr Ranson has stated an affirmative conclusion that, with regard to the heroin, the blows to the head, and the pre-existing heart condition, 'all three are there and they all appear to be having some operative effect'. In other words, there was evidence from an apparently unimpeachable source, upon which the jury were entitled to act, which could establish to the requisite standard the affirmative conclusion that the heroin had contributed significantly to the death of the deceased.
141 It follows that this third limb of ground 1 has not been made out.
Ground 2 - Trial judge erred in allowing the Crown to rely on the lie
142 This ground contends that the trial judge erred by allowing the prosecution to rely upon a particular lie told by the applicant as an implied admission, on her part, of having been involved in an unlawful and dangerous undertaking.
143 The lie in question was identified with precision.[24] The applicant told the police, when questioned soon after the deceased's death, that she had not been at Rose Craddock on the night in question. She claimed that she had spent that night working in her shop. However, her defence was conducted on a quite different basis. It was accepted that, although she had been present with Callinicos and Stoupas, it was they, and not she, who had killed the deceased.
144 The jury were told that the lie that she told the police regarding her whereabouts at the time of the deceased's death could be used by them for two quite separate purposes. That lie could of course be used in assessing the applicant's credit.[25] However, it could also be used as an implied admission that she was present at the time the deceased was assaulted, pursuant to a joint enterprise that was both unlawful and dangerous.
145 The jury were also told that they could not, as a matter of logic, reason from that lie to a finding that the applicant was guilty of murder, or indeed to a finding that she had acted with murderous intent. In other words, the lie was restricted, in its potential use, to a finding of manslaughter, on the assumption that the jury rejected the primary case, that of murder.
146 In his charge to the jury, the trial judge reminded them of the various explanations put forward on behalf of the applicant as to why she may have told that lie. His Honour then reiterated that it was not permissible to reason that merely because the applicant had told a lie, even a lie about an important matter, that she was therefore guilty of the offence charged, or indeed, any particular offence at all.
147 Before this Court it was submitted that the applicant's lie could not, as a matter of law, be regarded as probative of her involvement in an unlawful and dangerous undertaking, in the way that his Honour had directed. Although the trial judge had 'tempered' his initial direction as to consciousness of guilt by the additional instruction, as summarised above, that instruction had taken the form of a 'comment' only, and could not therefore undo the harm that had been done. There was a risk, so it was submitted, that the jury might have used the lie, which was said to have been 'intractably neutral', as bearing on the applicant's guilt of the crime of murder.
148 In our view, this ground is without merit. The lie was not, in any relevant sense, 'intractably neutral'. It was a conscious and deliberate lie about a most material matter, namely the applicant's presence, with Callinicos and Stoupas, during the assault upon the deceased. His Honour left the lie to the jury on the basis that they could use it, if appropriately satisfied, to conclude that the applicant had taken part in a joint enterprise that was both unlawful and dangerous. Such a conclusion would have justified a finding of manslaughter on the facts there assumed.
149 In the present case, the trial judge gave the jury a full Edwards direction.[26] No exception was taken to that direction, and for good reason. The specific point now raised by this ground of appeal was not addressed below. As indicated, we consider it to be without substance. Ground 2 must be rejected.
150 We regard it as unnecessary to consider this ground. If made good, it could only lead to a new trial on the count of murder. However, the applicant's success on ground 1 means that she is entitled to an acquittal on that count.
151 The conviction for murder cannot stand. The applicant is entitled to a verdict of acquittal on that count.
152 The trial judge left manslaughter by unlawful and dangerous act to the jury. The evidence as a whole, and the jury's verdict, make it plain that there could be no answer to that charge. In our view, the act of injecting heroin into a bound and gagged man, who was known to have a heart condition, can only be regarded as unlawful and dangerous. We would give effect to the jury's finding regarding the applicant's role in administering the injection, and thereby causing the death of the deceased. Those findings were in no way impugned before us, and there is no reason, in our view, to doubt them.
153 The applicant relies upon the following grounds in support of her application for leave to appeal against sentence:
Ground 1: The order for cumulation of six years' imprisonment (of the sentence of seven years' imprisonment imposed on counts 2 and 3) on the sentence imposed on count 1 is manifestly excessive.
Ground 2: The total effective sentence and non-parole period are manifestly excessive.
Ground 3: The learned trial judge erred by finding that the applicant's impaired mental functioning did not in any way reduce her moral culpability, or the need for both specific and general deterrence (reasons for sentence at transcript 1865[13]-1866[14]).
Ground 4: The learned sentencing judge erred in treating the applicant's guilty pleas to counts 2 and 3 as being of only "...limited significance." (reasons for sentence at transcript 1865[12]).
154 Ground 1 challenges the order for cumulation whereby six years of the sentence imposed on count 2 was made cumulative upon the sentence of 20 years imposed on count 1. Having regard to the applicant's success in her challenge to her conviction for murder, this ground need no longer be considered.
155 As with ground 1, the same may be said in respect of ground 2.
156 To the extent that ground 3 complains of his Honour's finding that the applicant's impaired mental functioning did not reduce her moral culpability, or the need to have regard to both specific and general deterrence when sentencing her, and this finding has a bearing on the sentences imposed on the two counts of conspiracy to murder, we consider that the ground is without substance. The applicant did not fall within those principles laid down in R v Tsiaras[27] and R v Verdins[28] which address moral culpability. The sentences imposed on the two counts that stand were well open to his Honour.
157 On the plea, counsel for the applicant submitted:
[The applicant] suffered two major events in her life, one of which she is reluctant to talk about because it is upsetting to her. It occurred when she was just short of double figures in age. She was the subject of a reasonably prolonged period of abuse at that time between the ages of 9 and 10 or 11. She has been diagnosed as having post traumatic stress disorder as a result of those events. The symptoms of that disorder seem to have ebbed and flowed over the years, but perhaps were reignited to some extent when, following the birth of her second child, she suffered postnatal depression. She is currently being treated by, or was being treated before she was incarcerated, by Dr Paul Robertson, psychiatrist. The boy was born in 1998 and she was under treatment for that condition, postnatal depression, until 2005. The severity of it, on my instructions, can be gauged from the fact that she was hospitalized for months at a time at the Monash Medical Centre, principally for the first 18 months, year and a half after the birth of the child. She was in and out of hospital, sometimes I think the longest one is about four and a half months admittance to hospital.
HIS HONOUR: This was in the period of 18 months after the birth of her second child.
MR DICKINSON: Yes, in 1998. She suffered a very acute depression and I am told it involved three significant suicide attempts over that period. I think they were all by her taking an overdose of prescription medication. Your Honour can see on the further presentment there is a matter relating to the forging of prescription medication and I am instructed that related to Panadeine or Panadol Forte and was involved in one of the attempts at suicide. So it is my submission that certainly since 1998 she was been suffering from a significant mental disorder, however you want to categorize it, certainly of postnatal depression and perhaps also the retriggering of the post traumatic stress syndrome that was occasioned when she was a young woman.
158 Counsel for the applicant also tendered a report, dated 11 October 2007, by Patrick Newton, a forensic psychologist. That report essentially provided the same information as stated by the applicant's counsel on the plea. It made reference to her childhood abuse, resulting in post traumatic stress disorder, which abated to some extent until the birth of her second child. From that time until the present, she has suffered severe depressive symptoms resulting in a number of suicide attempts. The applicant's most recent treating psychiatrist was Dr Paul Robertson of the Albert Road Clinic. Mr Newton also noted that the applicant has been prescribed the antidepressant Luvox whilst in custody.
159 Specifically addressing the principles in R v Verdins, counsel for the applicant said:
The sixth [principle] is this, "Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health this will be a fact tending to mitigate punishment." In my submission, that is appropriate here.
I would call in aid, not only the sixth principle but the second, third, fourth and fifth principles, in my submission, have bearing upon the sentence, type of sentence and severity of sentence that Your Honour will ultimately impose. In my submission, the evidence is she was suffering from a significant disorder at the time of the commission of the offences. She was suffering and is suffering from those matters still, now at the time of sentencing and they impact upon her moral responsibility for the crimes and they will certainly impact upon the severity of the punishment to be served in prison.
...
If I can just move briefly to the case of [R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258], ... and in particular, in the leading judgment of Justice Callaway. His Honour there addresses the question on whether a relevant factor is whether imprisonment will be a greater burden on an offender by reason of his state of health and whether that is a mitigating factor. His Honour comes down in the affirmative on that. But he gives an example of the application of that principle at paragraph 33, page 268.
His Honour says, "Even emotional stress may be taken into account ... (reads) ... taken into account." In my submission, that is also relevant to this case. The serving of a term of imprisonment for Mrs Withers is going to result in the loss of access to her children and it is a matter to be taken into account in the way that Justice Callaway describes in the case of Van Boxtel.
160 In his reasons for sentence, the trial judge said:
161 As is clear from his Honour's reasons that he accepted that the burden of imprisonment would fall more heavily upon the applicant because of her psychological condition, and debilitating illness. To that extent his Honour gave weight to that component of R v Verdins which addresses that issue. It cannot be said, from the individual sentences imposed on counts 2 and 3, that he failed to give that factor sufficient weight. It follows that ground 3 must fail.
162 Finally, ground 4 complains of his Honour's failure to give proper weight to the applicant's guilty pleas in relation to counts 2 and 3. He described those pleas as being of 'only limited significance'. In our view, he was entitled to view them in that way. The applicant had no defence whatsoever to the incitement charges. There was nothing to indicate any genuine remorse on her part in relation to those matters. The sentences imposed, seven years on each count, on a possible maximum of life imprisonment, indicates that utilitarian value was ascribed to these pleas, and sufficient weight given to them.
163 The application for leave to appeal against sentence should be refused.
164 It follows, in our opinion, that leave to appeal against conviction should be granted. The appeal should be allowed and the conviction for murder quashed. There should be substituted a conviction for manslaughter. There will have to be a further hearing before this Court so that an appropriate sentence for that offence can be considered and so that the question of concurrency or cumulation in respect of the sentences imposed on counts 2 and 3 can be considered.
165 Leave to appeal against the sentences imposed on counts 2 and 3 should be refused.
[1] In accordance with the rule in Browne v Dunn (1893) 6 R 67.
[3] See R v Tran [2000] FCA 1888; (2000) 118 A Crim R 218, [60] and the cases cited therein.
[7] Indeed, in R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416, the New South Wales Court of Criminal Appeal canvassed the possibility that the expression 'unsafe and unsatisfactory' might no longer be appropriate to be used in that State, having regard to Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. However, that diffidence appears to have evaporated over time, and the phrase is routinely adopted in this State as encompassing the gist of s 568(1).
[8] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494; Jones v The Queen (1997) 191 CLR 439, 450-2 and 468; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, 255-6; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; R v Klamo [2008] VSCA 75; (2008) 18 VR 644; and R v Kiernan [2008] VSCA 194.
[9] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494.
[10] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.
[12] He agreed in cross-examination that this is what she said.
[13] Stoupas said that she could not recall whether or not she had done so.
[14] "[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard." Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7, per Hayne J, citations omitted. See also R v Klamo [2008] VSCA 75; (2008) 18 VR 644, [38].
[15] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494.
[17] He could not state with precision how long that period was.
[21] R v Franklin [2001] VSCA 79; (2001) 3 VR 9, [54] to [56], citations omitted.
[24] Cf R v Constantinou [2009] VSCA 257.
[25] Zoneff v The Queen (2000) 200 CLR 234.
[26] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
R
Withers [2009] VSCA 306
(1998) 197 CLR 316
(2005) 11 VR 258
(1994) 181 CLR 487
(1998) 197 CLR 250
(1997) 191 CLR 439
(2005) 224 CLR 300
(2007) 230 CLR 559
(2008) 18 VR 644
(1991) 172 CLR 378
(2001) 3 VR 9
(2000) 200 CLR 234
(1993) 178 CLR 193
(2007) 16 VR 269