REGINA v. SKINNER [2000] NSWSC 303

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: Karen Denise Skinner, who was previously indicted before me on an indictment jointly with Fabrizio Calderoni, has pleaded guilty to one count that she did, between 1 February 1996 and 30 April 1996 with intent to hinder the investigation of a serious offence, namely the murder of Peter Marneros by Graeme Anderson Brown and Fabrizio Calderoni, give false information to the police and did encourage Fabrizio Calderoni to give false information to the police. She is convicted on that plea. 2 That plea has been accepted by the Crown in full discharge of the indictment now presented against her and in respect of the previous indictment which included one count of accessory after the fact to the murder of Peter Marneros by Fabrizio Calderoni on 11 June 1991. The Director of Public Prosecutions does not proceed any further on that former indictment. 3 Fabrizio Calderoni was tried before me and a jury for that murder, and was acquitted by the verdict of the jury last Friday. The basis upon which the Crown put its case in that trial was that Graeme Anderson Brown was a principal in the first degree in the murder and that Fabrizio Calderoni was either an accessory before the fact, or alternatively was an aider and abettor or principal in the second degree, present and assisting in the murder. One Brett Skinner, it had been alleged, was also a party to the killing, although the Crown has not proceeded against him. 4 In short compass, it was alleged by the Crown that Brown was seeking to recover monies from either Peter Marneros or a person George Karipis, also known as George Page, and for that purpose was utilising the assistance of Calderoni and Brett Skinner to rob Marneros. 5 There was evidence that Brown's lover, one Patricia Adams (a protected witness giving evidence under a pseudonym) had knowledge of Brown's intentions and gave evidence in the trial that Calderoni had said prior to the robbery "Graeme will kill him". The acceptance by the jury of that latter fact was crucial to a finding that Calderoni was an accessory before the fact. 6 I cannot be satisfied of that fact in the light of the verdict of the jury. Even though these are other proceedings, I would not be satisfied of that fact in these proceedings, nor has the Crown sought that I should be. 7 I am able to be satisfied of the fact that the deceased met his death during a robbery being performed by Brown, Calderoni and Brett Skinner, and that Brown, on all the evidence, appears to have been the principal who advanced the idea of the robbery; carried out the principal role in the robbery; carried out the killing; and fled with the majority of the proceeds, having left behind some portion of the proceeds for the protected witness Patricia Adams as repayment of a loan. 8 The Crown has accepted in the present proceedings that it is unable to show that the present prisoner received any material benefit from the robbery or the killing. Brown has fled and has not been brought to justice. 9 It is not alleged against the present prisoner that the actions on which the Crown relies were designed by her for the purpose of intending to assist Brown's evasion of apprehension. It is alleged that some five years after the events, during a re-investigation by police, she actively sought to conceal the name and identity of her lover, Calderoni, from the police and to conceal the degree of association between Calderoni and Brown, and the degree of association between her brother and Brown; to conceal that they were involved in the robbery on the night; to conceal their later whereabouts, particularly that of Calderoni, and to enlist in so doing, the protected witness, who unbeknown to her was either making note of what was said or was equipped with recording devices. 10 Her activities were triggered following the interviewing of her by the police, and in consequence she made a number of phone calls seeking to achieve a state of non co-operation by, not only Brett Skinner and Calderoni, but possibly others. 11 It is clear she sought herself actively to deceive the police. Those phone calls, however, unbeknown to her, were the subject of telecommunications interceptions and it has been agreed from the bar table in what has been put to me that her actions, although intended generally to frustrate the investigation, sought to do so particularly at least, so as to conceal from the police the identity of Calderoni as a person "Fred" who was nominated in a written document left by Graeme Brown before he fled. 12 Her efforts did not in fact corrupt the investigation but had the effect of assisting it by providing material admissions from herself and Calderoni which were recorded by the interceptions or were recorded by the recording device attached to the transmitter attached to the protected witness. 13 In effect, her attempts to assist her lover and her brother provided the Crown with valuable material against them, and indeed had she not sought to assist them in the way in which she did, it is highly likely there never would have been a case against her brother and her lover. 14 The offence with which she is charged, and to which she has pleaded guilty, is the offence under s.315 of the Crimes Act 1900 which was introduced to replace certain of the common law offences against justice. It is punishable by a maximum of seven years imprisonment. 15 What she did was intended to hinder or frustrate a most important investigation. Firstly, it was the investigation of a murder, that being a most serious crime. Secondly, it had the effect of seeking to divert investigation of a robbery, a robbery in company, another most serious crime. But she is not charged with that. Although in that context it is impossible for me to put that matter aside since it laid the foundation for the very murder in question, in so far as her actions were intended to frustrate or hinder the investigation, I am unable to say that she was not motivated by an impulse that proceeded from a belief that her brother and her lover were not guilty of the murder. The only material to suggest to the contrary was the statement contained in a recorded conversation between her and the protected witness on 3 April 1996 where the words "well it was a premeditated murder" were said. It is not possible to be satisfied beyond reasonable doubt that those words did not refer to after knowledge gained by her of Brown's intent. 16 Indeed, it is not possible to be satisfied when she gained any knowledge of what had occurred since, on the Crown case, she was asleep when those involved in the robbery/murder returned from that event to premises on the Central Coast. Her knowledge may have been gained from what was said by various of the persons over the succeeding five years, the publicity that had been given to the events in the media, and what had been said to her by the police when they sought to interview her. 17 The gravamen then of the offence in her case at the highest can be said to be seeking to conceal the involvement of those that she, at least on personal grounds, considered should not have been the subject of any murder conviction from being unjustly brought to book and that in the light of the matter having been some five years left in limbo no doubt due in part to the inactivity or inappropriate activity of police formally engaged in the matter and in part to a concealment of the truth or at least an unwillingness to bring it to light. 18 The re-investigation commenced apparently as a consequence of what had occurred during the Royal Commission into the Police Service. Apparently there was certain information provided as to the police at Kings Cross who might otherwise have investigated the murder much earlier. 19 Although the murder had occurred five years earlier, this matter has been hanging over the prisoner now since 1996, when the conversations to which I have referred came to the knowledge of the authorities. The delay, however, is explicable by the necessity to ascertain the correct and precise charge, the difficulty of obtaining various witnesses in a milieu in which any witness as to matters of fact required an indemnity or a certificate under s.128 of the Evidence Act 1995. The Crown has quite properly drawn to my attention that the prisoner sought to test the evidence at committal by availing herself of her legal rights considering she was charged as an accessory after the fact in circumstances which, until the matters that were revealed in the recent trial, might well have suggested greater culpability. This is not a circumstance that in my view should deprive her of the opportunity to take advantage of the relevant provisions of the Crimes Act 1900 since she pleaded guilty as soon as she was charged with the present offence. Thus, I would not regard this as a late plea. On the other hand, I would not regard it as evidencing vigorous and early co-operation with the authorities. That would be preposterous in the context of the prisoner's intention to try to frustrate the endeavours of the authorities. But I do see that, after all the time that has been involved and looking at her subjective circumstances particularly considering that although she has a criminal record which is accepted by both parties as inconsequential as far as sentencing is presently concerned, this is not matter which would warrant a custodial sentence, particularly a sentence of any real significance. 20 She is a resident of Queensland and the alternatives to full time custody are notoriously difficult to implement in such circumstances, but it is a serious offence nonetheless to seek to frustrate a murder investigation. Whilst it would appear, particularly from the submissions I have received from both Crown and defence, that this is a case in which a recognizance under s.558 of the Crimes Act 1900 would be appropriate and deferral of sentence and that recognizance should be conditioned only on her being of good behaviour, it is nonetheless a matter of some considerable degree of significance so that that recognizance should be for a fairly lengthy period. 21 In all the circumstances, I defer passing sentence upon the prisoner entering a recognizance herself in the sum of $3,000 to be of good behaviour for a period of three years and to come up for sentence if called on. The recognizance may be entered before a justice or magistrate.

Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.