ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 48 (27 February 2007)

ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 48 (27 February 2007) - WASCA 2007 case summary — Zoe

[67]

61 It was about 1.30 or 2 am when they arrived. As the appellant drove into his street, his headlights shone on someone standing next to the roller door of his shed. It was Coates. It was raining and Coates was wet. The appellant and Chapman got out of the car and the appellant asked Coates what he was doing there. He said to Coates that he had told him not to come back. Coates looked "a bloody mess". He was unshaven. He looked sheepish. He did not look good. Chapman said the appellant could not leave him there. In the end, the appellant relented and said he could come in. He went in through the patio. Coates was very timid; very sheepish. They all went into the unit the appellant had been building for Coates. Coates went into his room and put on some warmer clothes. Then they all sat around a table. Chapman had already been drinking in the aircraft. Chapman and the appellant talked and drank. Coates said he wanted a beer. The appellant gave him a lower alcohol beer. Coates suddenly leaned forward, pointed at Chapman and said he was a gangster and a liar and had not brought back the girlfriend for Coates he said he was going to bring back. According to the appellant, that last comment was apparently a reference to the fact Chapman would often tell Coates that when he returned from Thailand he would bring him back a girl in a suitcase. The appellant said Coates must have believed that. He testified Coates continued to call Chapman a gangster and a liar, shouting at him and being "a little bit aggressive". With that, Chapman slapped Coates on the side of the head, knocking him off his chair, which broke. Coates fell straight to the floor. Chapman stood up and it appeared he was about to kick Coates. The appellant flung out his arm and threw Chapman against the wall, winding him. He warned Chapman that if Chapman hit Coates again, he would put his head through the wall. At that stage Coates was sitting up on the floor. He had scrape marks on his head from where he had hit the concrete floor. The appellant got Coates up, kicked the broken chair out of the way and put him on a white plastic chair. He looked alright, although a bit frightened. The appellant told Chapman there had to be no more of that. He got another three beers out and they talked. After a while Coates seemed tired. He was yawning. The appellant told him to go to bed. Coates went into his room. The appellant told Chapman they should go outside and leave Coates alone. They took their beers and went to the patio, where they sat at a table. They had a few more beers. The appellant ended up drinking whiskey. Chapman got up and went to the toilet. When he came out he said he was going to tell Coates he was sorry. He went back into the unit. He came back after a couple of minutes. The appellant asked if Coates was alright. Chapman said he was, but he had already gone to bed. The two of them continued to drink and talk for another hour or so. Chapman said he heard something. The appellant had not, but he went to the unit to look. When he went inside he saw Coates lying on the floor on his side with his eyes wide open. The appellant called his name several times, but Coates did not respond. The appellant rolled him over and checked for signs of life but could not find any. He started to give Coates CPR, which he said he knew a little bit about. Between intervals, he kept calling to Chapman for help, but Chapman was a bit deaf. The appellant kept giving CPR until he was exhausted. He then left Coates and ran out of the unit and through the shed door. He shouted to Chapman to get an ambulance, but Chapman still did not hear him. He ran through the gate and screamed at Chapman to ring an ambulance because there was something wrong with Coates, and ran back to the unit. Chapman casually walked down behind him. The appellant had resumed CPR. He kept screaming at Chapman to go inside, ring an ambulance and get his wife; he was quite frantic.

[88]

... Before I go into what are is wilful murder, murder and manslaughter the state [sic] must first prove that the accused man caused the death of the death before we consider wilful murder, murder or manslaughter. Question 1 - that is question 1: did the accused man cause the death of Colin Coates? The state [sic] sets out to do it this way: firstly, by proving that the deceased, Colin Coates, was with the accused when he died, and the accused admits that; secondly, by proving that the accused disposed of the body, and the accused admits that, in circumstances where he concealed that fact and the accused admits that.

So, the state [sic] says, if the accused disposed of this body by leaving it out in the bush and did not notify the authorities, he did an act contrary to law because the law is, ladies and gentlemen, you are required by law to report the death of a person. The Coroners Act provides that. You probably don't need to know what's in the Coroners Act but you would know well enough you have to report the death to somebody.

The law also provides that the disposal of a body in law can only be under the Cemeteries Act or the Cremations Act. There's only two ways you can dispose of a body. So it would be open to you - but this is the question for you - to conclude if you're satisfied beyond reasonable doubt that by disposing of the body as he did, the accused caused the death of the deceased. That is the question.

There's no evidence as to the actual cause of death but that's not required as a matter of law. The state [sic] doesn't have to prove the actual cause of death. What the state [sic] says is that by disposing of the body as he did (a) the accused caused death, and (b) the death was a result of violence. This is where this question of inferences comes in. You have to infer, to accept the state [sic] proposition that it was death as a result of violence.

It would be open to you, but it's entirely a question for you - it would be open to you to be satisfied beyond reasonable doubt, if that was the decision you reached, that the act of concealing the body was to conceal the fact that the death was a result of violence. That's what the state [sic] urges you to accept, but you have to be satisfied beyond reasonable doubt about it. I will repeat it. It would be open to you, if you were satisfied beyond reasonable doubt, to conclude that by concealing the body, so concealing it, was to conceal the fact that death was a result of violence because, the state [sic] says, a post-mortem would have revealed violence.

So you have to draw an inference about this before you can be satisfied beyond reasonable doubt; that you can [sic take] into account what I said about inferences and the drawing of them. So if you're satisfied the cause of death was violence at the hands of the accused, it would be open to you - and it's entirely a question for you - to infer from such violence that the accused intended to cause his death or at least grievous bodily harm, and I will come to that in a moment.

If you can't discount the account that the accused gave on the video, his video account where he said, 'Look, I just gave him a slap early in the day. We had lunch. He sat down. He was okay. The next thing, he just keeled over and the next thing he was dead' - if you can't discount that, then you could not conclude that the accused caused his death. See how I said that; 'if you can't discount it'? He doesn't have to prove that because there's no obligation on him to prove anything. The state [sic] has to satisfy you beyond reasonable doubt that that couldn't be true, but if you're left in doubt about that, then you couldn't be satisfied beyond reasonable doubt that he caused death.

Now, it's complicated by the fact that the accused denies that account. He now says it was Chapman who struck the deceased, and this was about five weeks later; three, four, five, he said, three, four five weeks after any incident about the toilet. So you have heard his account about that. Again he says Chapman only gave him a slap; he seemed all right; he was picked up; sat for a while and then he went off to his room and he was later found dead.

The accused doesn't go so far as to say Chapman killed him, although his counsel actually cross-examined Chapman and put to him, 'You killed him', but the accused backed off from that. He didn't say Chapman had killed him; he only told you what had happened and how he was later found to be dead. Again, if you can't discount the possibility that this is how it happened, then you could not find that the accused caused the death.

So that's the question of causation. You see, it's a very important and fundamental threshold issue here. The state [sic] must prove that the accused caused the death of the deceased. How do they set out to do that? I will repeat: they set out to do it by saying, 'Well, he was with the deceased when he died,' and the accused admits that; he disposed of his body; the accused admits that; he concealed the fact that he disposed of it; the accused admits that. He did not notify the authorities that he had died. He disposed of a body contrary to law.

So from that you are asked to draw the inference, and you have to be satisfied beyond reasonable doubt, that by doing what he did, disposing of that body that way, it's clear that he caused the death of the deceased, even though there's no actual evidence as to what the cause of death was, and not only did he cause the death but he caused it by violence because he got rid of the body because he knew if there was a post-mortem, it would reveal that there had been violence on Colin Coates.

So therefore if you are satisfied beyond reasonable doubt, and only you can make this decision - if you are satisfied beyond reasonable doubt that by concealing the body he was concealing the fact that death was as a result of violence, it would be open to you to draw the inference, if you are so satisfied beyond reasonable doubt, that he caused the death and further, he had caused it with an intent to kill or do grievous bodily harm. We will come to that in a minute. So I have just repeated that to try and give you the picture of your first line of inquiry.

Now, ladies and gentlemen, not only does the crown [sic] or the state [sic] have to prove beyond reasonable doubt the accused caused the death of the deceased; it must prove the killing was unlawful. Under our law any killing is unlawful, as you would expect. Any killing is unlawful unless justified, authorised or excused by law. Well, we are not concerned here. There's nothing in this case that would suggest that any killing, if it occurred, was authorised, justified or excused by law. We don't have to worry about that.

I suppose the classic example of that would be in the days when they had capital punishment. An executioner would be authorised to take someone's life. We are obviously not concerned with anything like that. So I'm able to tell you that if the killing did occur and if you are satisfied beyond reasonable doubt it was the deceased [sic accused] who killed him, who caused his death, then the killing would be unlawful because there's nothing been raised here which would authorise it, justify it or excuse it. Sometimes killing in self-defence is justified and so on but there's nothing like that here.

Now, we finally get to this: if then an unlawful killing of the deceased by this accused has been proven beyond a reasonable doubt, the crime can be any one of three things, wilful murder, murder of [sic or] manslaughter, and this brings me to tell you what they are. You see, it's a three-tiered system of homicide; wilful murder at the top, murder in the middle and manslaughter at the bottom; three levels of homicide.

Let's start at the bottom. It's manslaughter if a person unlawfully kills another without any particular intent. What is the classic example of that? Well, motor vehicle manslaughter deaths are unfortunately a common feature of our life. People get in a motor vehicle; they have had far too much to drink; they drive far too fast; the roads are slippery, and terrible fatal accidents occur and people can be convicted of manslaughter in those circumstances for causing - for the unlawful killing of another human being on the road without any intent. They don't intend to kill people or even intend to do them serious harm; they don't intend to hit anyone. That's a classic example of manslaughter. You see, no intent but unlawful killing.

Now let's go to the top. What is wilful murder? Wilful murder is unlawful killing of another person with an intent to cause his death. You kill somebody and you intend to kill them - that is wilful murder. What is a classic example of that? An underworld assassination or a political assassination. Somebody is lined up in the sights of a rifle and shot, clearly with intent to kill.

In the middle is murder. Murder is this: if a person unlawfully kills another intending to do him grievous bodily harm, he's guilty of murder. What is grievous bodily harm? It is, and I will give you the definition to look at later, any bodily harm of such a nature as to endanger life or be likely to endanger life or to cause permanent injury to health or be likely to cause permanent injury to health. It's a convoluted definition; that's why I have written it down for you, but it's in a nutshell very serious harm. So if you set out with an intent to do someone very serious harm and the person is unlawfully killed, that would constitute murder. So there's your three-tiered law of homicide.

In relation to murder, just concentrating on that for a moment, that grievous bodily harm element, an intention just to harm or hurt someone without any more would not lead to a verdict of murder. You would have to find it was an intention to cause grievous bodily harm as I have defined it before somebody could be found guilty of murder.

You look at the time when the harm is inflicted. You don't take account of the availability of medical attention or anything like that. So I repeat, proof of an unlawful killing by the accused with no proof of any intention either to kill or do grievous bodily harm is manslaughter. Proof of an unlawful killing by the accused with proof of an intention on his part to do grievous bodily harm to the deceased would be murder and proof of an unlawful killing by the accused with proof of an intention on his part to cause the death of the deceased would be wilful murder.

So we're talking about intention in relation to two of these, wilful murder and murder. What is intention? It's obviously central. Intention to kill is a fact. It must be proven beyond reasonable doubt. Intention to cause grievous bodily harm is a fact and it must be proven beyond reasonable doubt. In other words, the accused doesn't have to prove, if you found he did cause the death and caused it unlawfully, that he didn't have any particular intention. The crown [sic] must prove the necessary intention beyond reasonable doubt.

Where is intention? It's in your mind. It can't be proved by producing it. You can only prove it by inference. There's that word again, 'inference' from acts done particularly or which you find him to have done or from what he might have said about intention, if he said anything. This man didn't say, 'I intended to do anything.' So you have to infer what acts were done and you have to infer with what intention - you have two inferences to draw.

You weigh up anything that he said and all other relevant facts. You have regard to what he said to investigating police officers and you have regard to what he said in this court. Of course in this court he said he didn't play any part in it whatever, but if on all of the evidence you're satisfied beyond reasonable doubt he did unlawfully kill the deceased and he had the intention either to kill or do grievous bodily harm he would be guilty of either wilful murder or murder." (My emphasis)

[197]

"In my opinion, it would be open to a jury to find the following facts to the required standard, although it must be stressed that it would be for the jury to decide whether or not to do so:

(a) the deceased alighted from a bus close to the applicant's shop at approximately 11.15 am on 19 February 1983;

(b) the behaviour of the deceased at the time was entirely normal;

(c) a convenient route to her mother's flat where she was living, and to her father's flat which she was accustomed to visit, lay in front of the applicant's shop;

(d) the applicant was working alone in his shop at the time;

(e) the neighbouring shop closed between noon and 1.00 pm on that day, and the proprietors, Mr & Mrs Allan, then left the premises;

(f) the applicant lived alone in the accommodation at the rear of the shop;

(g) the deceased did not return to her home to meet her friend, as she had arranged, for them both to walk to their part-time job that afternoon at 5.00 pm;

(h) the remains of the deceased were found buried in a place which, in 1983, had been under a shed in the back area of the shop;

(i) the body was buried prior to the removal of the shed and the bitumenising of the area behind the shop in 1985;

(j) the shed was under the control of the applicant and was locked at least part of the time;

(k) the shed was close to the rear entrance to the shop premises;

(1) the body was contained in a white plastic bag, of the type in which dresses were supplied to the applicant and which were available in the applicant's shop;

(m) the bag was tied with a yellow taffeta ribbon;

(n) the ribbon was of a type which had been stocked in the shop and some of which was to be found in the shop or in the shed;

(o) the body was buried with a mask which had been in the applicant's possession and kept in the shop or in his living area;

(p) the recovered mask bore traces of human blood;

(q) the applicant falsely denied having owned or possessed the mask;

(r) the only clothing with the remains of the deceased was a pair of briefs which gave reactions for blood;

(s) the deceased [sic applicant] had the opportunity to kill the deceased and to bury her body where it was found.

A jury would no doubt have to consider whether the body was buried shortly after the deceased's disappearance, and if they concluded that it was buried shortly after this time, the likelihood of someone other than the applicant having taken the body into the shed at a time when it was unlocked and buried it without, apparently, the applicant's having noticed anything unusual in the shed.

In my opinion, in all the circumstances, it would be open to a jury, properly directed, to find, beyond reasonable doubt, that the deceased died a violent death, that the applicant was the person who buried the deceased and that he did so having killed her and having intended to kill her ..." (My emphasis)

[216]

164 In the present case the fact of death was proved by the discovery of Coates' body. The jury would have been entitled to regard what the appellant said to police as evidence that he had used violence to the deceased on the day he died. The State did not allege any particular motive (and nor was it necessary for it to do so: s 23 of the WA Code), although on the appellant's account to police in his own evidence - as well as from other witnesses - the jury could well have accepted that he regarded Coates as an unwelcome burden and inconvenience, that he treated Coates badly and became angry and frustrated with him, and physically violent towards him. The fact that (on either version) he left the body wrapped in plastic in the car boot overnight and then drove around for many hours the following day before leaving it behind a log off a bush track, suggests a more sinister involvement than an immediate panicked response to an unexpected and dreadful event, not involving real criminal culpability of his involvement in Coates' death. On Chapman's account, supported by telephone records, the appellant telephoned him on 18 July telling him to come to Perth. As he did not arrive until 20 July, the jury could properly have found the body had already been in the boot wrapped in plastic for at least a day when Chapman got there and that it remained there overnight and for most of the following day while they drove around looking for a place to dispose of it. The manner of the appellant's disposal of the body, his maintenance of his false story to his wife and anyone else that Coates had simply gone away when the appellant told him to "piss off" and the continuing claims for, or acceptance of, moneys from the Public Trustee on Coates' behalf, the numerous lies admitted by the appellant, as well as what the jury must necessarily have found to have been lies he told about Chapman's involvement in the death, in combination with the other circumstances, were in my view capable of supporting the necessary finding that the appellant killed Coates and that he did so then intending at least to cause him grievous bodily harm.

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