Regina v Anthony John Hore Regina v Stanley James Fyffe

Regina v Anthony John Hore Regina v Stanley James Fyffe - [2005] NSWCCA 3 - NSWCCA 2004 case summary — Zoe

[188]

The judge gave the jury these directions at SU172-173: "The Crown says that what Mr Hore said was a lie and was told because Mr Hore could not give an explanation of the presence of the boots in his cell in any way consistent with his innocence. In other words, that he knew that he killed Mr Moore and that is why he gave that untruthful answer. I have already told you the care you have to take in approaching evidence of this kind and let me repeat to you that before you can use it in the way contended for by the Crown you must be satisfied not only that it was a lie but that it was a deliberate lie, that is, told for that purpose. If you are satisfied that it was a deliberate lie, you must be satisfied that it related to an issue material to the trial, that it revealed some knowledge of the offence and that it was told because Mr Hore knew the truth of the matter and he knew the truth of the matter would implicate him in the offence charged if he told it. Putting it another way, he said what he said was untruthful to his knowledge because of the realisation of guilt and a fear of the truth. You must also be satisfied before you can use it that what was in his mind was guilt of the offence charged and not some other crime. I went on before to point out to you that people do not always act rationally and there are often all sorts of reasons why they may say things which they know are not true. Now the response to this is very simple. It is not a lie at all. I don't need to rehearse the arguments again, but you know what Mr Spencer submits to you about the opportunity that others had, you know, to put the boots in cell 72.You know that Mr Hore had boots. You have the record there of them. He was telling the truth in at least part of that conversation because you know that he had boots on issue and that he wore them for work. He said that he had them for about four days he said. In fact that is dead right if you regard 'about four days' the same as five days because the record of work shows that he was working for the period of five working days between 2 and 8 March. So Mr Spencer says, 'Don't use this evidence. It is simply not a lie at all. It just goes nowhere'."

[214]

"128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness: (a) that he or she need not give the evidence, and (b) that, if he or she gives the evidence, the court will give a certificate under this section, and (c) of the effect of such a certificate. (3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence. (4) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (5) If the court is satisfied that: (a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and (b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (c) the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence. (6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence. (7) In any proceeding in a NSW court: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence." 192. The judge, after referring to s 128(2) of the Evidence Act 1995 held that Chatto had reasonable grounds for not wishing to "give evidence about the circumstances in which he decided to include and then exclude the claim that Mr McIvor was present, including about conversations he had with Mr McIvor before or after the making of the statements".

[215]

The judge then said: " 9. As the Crown Prosecutor has pointed out, the inquiry is for the moment limited to s 128(2). In that respect I direct that a transcript of Mr Chatto's evidence today be taken out and annexed to a certificate under s 128(3), which should refer to that evidence. 10. Technically the position has not been arrived at at which Mr Chatto refuses to give evidence so as to bring into play the provisions of subs (5). It seems appropriate, however, to assume that Mr Chatto will, if asked before the jury, refuse to give evidence about relevant matters on the ground that his answers may tend to incriminate him. It seems certain that subs (5) will come into play. Para (a) is fulfilled because Mr Chatto's answers, if given, will reveal that he has at least given untrue evidence on oath to the Magistrate. It may also reveal other offences, including offences based upon whatever arrangement he may have had with McIvor. 11. The question which will then arise is whether in accordance with para (c) the interests of justice require that the witness give the evidence to which objection is taken. 12. As I said before, evidence of this nature is always regarded by the courts as likely to be unreliable, if only because witnesses may expect to receive a benefit from giving it. This evidence is subject to the additional unreliability, in my view, that it may be seen as tainted by the attempt by Mr Chatto to have another person corroborate his evidence. It is true that the portion of Mr Chatto's statement now said to be false may be regarded as a discrete portion of it and that one possible view is that all Mr Chatto has done is unwisely try to assist another prisoner get some time off his sentence by coming in on his story. As I say, that is a possible explanation, but it does leave the evidence in my mind in a very parlous state, and in deciding how the interests of justice are best served it weighs heavily in my mind. 13. Accordingly I indicate that although Mr Chatto may have a certificate for the evidence he has so far given I am not inclined to grant him a certificate for any evidence he may give if called to give evidence before the jury."

[229]

Fyffe's counsel in his final address told the jury that before they could make a finding of guilt they had to be able to rely on Chatto's evidence (T601). Counsel submitted that they could not rely on Chatto's evidence as he was not truthful. Counsel illustrated his point by contrasting evidence given by Chatto at the trial and at the committal proceedings (T602). A little later in his address counsel subjected Chatto's evidence to critical analysis. He contended that Chatto had made up a story to avoid becoming a suspect. At T607-608 counsel told the jury: "Mr McIvor refuses to answer questions on the ground the answer to those questions may incriminate him so there are no answers to any questions from Mr McIvor. There isn't any evidence from Mr McIvor he was present in the cell at the time Mr Chatto makes these observations, a matter Mr Chatto made clear in his statement was the truth and a matter he claimed, continued to claim to be true at the committal proceedings, and you have had evidence before you that that is the case. Now, Mr Chatto in this Court in his evidence in chief does not say a word about the presence of Mr McIvor but what he said was he gave evidence to the police in his statement that had Mr McIvor present and he gave evidence at the committal that said Mr McIvor was present, and every time what he said about it he was asked at the committal to say something about McIvor he refused to give evidence about that and there was, there were questions and answers at committal, that is what was said, Mr McIvor was walking between the beds. Not a word about it here. Mr Chatto needed someone to corroborate his story. Not because he thought he wouldn't be believed not because he thought: 'I am a prison witness and no one would believe me so I need some corroboration', he needed someone because [he] was an informer, he needed an alibi, he needed someone to be a suspect, he needed someone to come along and say he was telling the truth about this story he had made up. That is a problem with his evidence that is enormous."

[354]

The judge had regard to s 19A of the Crimes Act 1900, ss 61 and 21 of the Crimes (Sentencing Procedure) Act 1999 and R v Harris (2000) 5 NSWLR 409 and addressed the question whether he should impose a sentence of life imprisonment or for a specified term. Hore
He was born on 20 November 1965. He is powerful and well built. He has a poor criminal record. During his early teenage years he was dealt with by the Children's Court for stealing. Between 1984 and 1986 he was convicted four times for stealing and like offences and robbery. In June 1987 he was released from prison on probation. On 14 December 1987 he, Ms Christine Rush (his girl friend) and another went to rob a man at his house. He took no weapon but as he entered the premises he picked up a spade and left it close at hand. They carried out the robbery. Hore killed the victim with the spade. On 29 July 1988 he was sentenced to imprisonment for life. The remarks of the trial judge (Mathews J) included these passages: "… you appeared to show some vacillation in the early stages, as to whether to proceed with this projected robbery, and you required some encouragement from your co-offender before you went back and committed the offence. However, having embarked upon it, you did so with the greatest of savagery and violence, leading ultimately to the infliction of horrible injuries on that man. You tackled him, it seems, and he went to the ground. But he was still struggling, he was kicking at you, and this was too much for you. You grabbed the spade and, it would seem from the medical evidence, you struck him on four separate occasions with different parts of it. Two blows were to the head, one of them to the back of the head. Presumably that was inflicted with a corner of the spade, for it gouged out a portion of his skull. The last and final blow was with one side of the spade, and it penetrated deep into that man's face, approximately at eye level, going three and a half centimetres into the skull according to the medical evidence. A mere statement of that final injury indicated the force with which the blows must have been inflicted, and it is little wonder in the circumstances that the jury returned the verdict it did. It was an entirely uncalled for, unwarranted attack on a defenceless man who had done nothing whatsoever to provoke it. Indeed, you said at the time that all you wanted to do was to stop him from kicking, he being already it seems on the ground at the time."
A concurrent sentence of 14 years penal servitude was imposed for robbery with striking. Mathews J accepted that Rush was the instigator. Barr J summarised the post sentence history of Hore thus: "25 In August 1997 the offender applied to the Court under s 13A Sentencing Act for a redetermination of his life sentence. The term imposed for the robbery had already been translated under the provisions of the Sentencing Act to allow for remissions and had expired. Before the Court was a report dated 20 June 1996 from the Serious Offenders Review Council. It showed that the offender was still classified A2, which required that he be kept in a maximum security institution subject to electronic surveillance. According to the report, antisocial tendencies had begun from the start of his incarceration. Although a number of goals were achieved under a therapeutic programme at the special care unit at Long Bay, his behaviour had deteriorated when he was pressured to communicate more. He had threatened other inmates with knives.

[369]

Barr J reached these conclusions: "40 The offender is utterly without remorse. The murder of which he stands convicted is the latest in a series of violent attacks on other people, prison inmates, prison officers and members of the public. I see no prospect of his rehabilitation. I think that he is dangerous and that the community needs to be protected from him. 41 A serious feature of the murder is that it was carried out in a prison. It was a minimum security prison and the offender abused the freedom that his classification in that environment afforded him. It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them. 42 The murder of the deceased was an execution of the coolest kind. It was carefully planned. The deceased, a man of small build, was lured under some pretext to the place of execution. He was there swiftly and efficiently put down by three strong men. His injuries were horrific. The murder was an act of great depravity. The fact that it is not possible to say precisely why the offender committed the offence or what part he played does not remove his crime from the worst category of offences of murder. Neither does the fact that he was not involved in placing the instrument of execution at the place of execution. 43 In my opinion the offender's level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only through the imposition of a sentence of imprisonment for life."
Hore contends in his Ground 14 that the sentence was excessive given: (a) the offence was not in the worst category of murder; (b) the circumstances of the offence. (c) the judge's findings were not available on the evidence

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