Spence v The Queen [2016] VSCA 113

Spence v The Queen [2016] VSCA 113 - VSCA 2016 case summary — Zoe

[34]

Why not accept Todi Muja? Why not accept what he tells you happened in the shed? What an amazing story to make up, putting a plastic bag over someone's head and taping it up, when the man's got a gun. If you're going to make up a story, 'Harvey blew him away, put the gun to his head and went "bang"'. It's so bizarre it's got the ring of truth about it, the plastic bag over the head, tape it up. If you accept his evidence here before you Harvey Spence is guilty of murder. It's as simple as that.

One of the most illogical parts of the defence scenario that has been put in relation to Muja is why, why would Muja get involved in killing his friend Kevin Doan? Because that's what's being suggested to him. [WR] and these other two goons killed him. Why would Muja kill him? Why would he get involved in the torture, tying up and the death of his good friend? Why wouldn't [WR] take out his anger on someone other than Kevin? Muja is the one who is supposed to be the cook, who hasn't produced. Harvey is the one who lost the drugs. But Harvey is taking his car and driving around with his boat.

Why not have this meeting in Melbourne? [WR is] in Melbourne on 5 January with Harvey Spence and they see Kevin in the city. They want to have a meeting. Why not do it there and then? 'Come on, let's go back to Harvey's place, let's have a chat about this lab. We're all going to make this enormous amount of money and we're all going to cook this ice and everything's going to be fantastic'. Why drive all the way to Johnsonville to meet [WR] with these other people? Apparently, it's put to [WR] and put to Muja, that the hydro equipment is going to get moved to Melbourne and they're going to grow in a warehouse in Melbourne. Why do they need Johnsonville? There's a warehouse to cook the ice. Because that's all rubbish. It's an afterthought to justify why Harvey Spence takes Kevin down to Johnsonville in the first place. He's taking him down there for his reason, and his reason is he wants to punish Kevin because he believes, as he said to Thomas Nguyen, as he said in the car, as he said in Muja's presence, 'Kevin's a dog', Kevin's the one who lagged him, and he's going to do something about it, he, Harvey Spence.

[WR is] angry at Kevin Doan. He saw him at [Federation] Square on the 5th. Did he attack him then? Did he go up and grab him, drag him off, put him in a car, take him somewhere, torture him and kill him? No. He goes off with Harvey Spence and Kevin goes his own way.

Now, as I've said, it will probably be suggested to you that Muja has told a litany of lies ...

[54]

... I want to move to the topic of the presumption of innocence, the onus of proof and the standard of proof. I told you about those at the start of the case. They are important, all of these things are important, but I am going to repeat them now.

First, the presumption of innocence. It is a critical part of our justice system that people are presumed to be innocent unless and until they are proved guilty. So before you may return a verdict of guilty on a charge, the prosecution must displace the presumption of innocence or set it aside or overturn it and satisfy you that the accused is guilty of the offence charged.

Secondly, the onus or burden of proof. Since the prosecution brings the case against the accused, it is for the prosecution to prove the offence charged. The accused does not have to prove anything. That never changes from start to finish. It is not for the accused to demonstrate his innocence, but for the prosecution to prove the charge they have brought against him.

Thirdly, the standard of proof. The prosecution proves the charge brought by proving the accused's guilt of the offence beyond reasonable doubt. ...

...

Remember, there is no onus on the accused to prove or establish or to satisfy you of anything, or to have you accept anything.

...

Among other things, [defence counsel] submitted to you that you cannot exclude the reasonable possibility that [WR], in company with Mr Muja and/or Mr Mitchell, killed Mr Doan and that Mr Spence was not even there when all of that happened, let alone was he involved in it.

I will come to some of the arguments of the parties later, but for the moment I need to explain this to you. You do not need to be convinced that an explanation or hypothesis that is said to be consistent with an accused's innocence represents the true state of affairs in order to find an accused not guilty. There is no burden on the accused to establish or prove such an explanation or hypothesis consistent with innocence. Rather, consistently with the directions I have just given you about the burden and standard of proof and inferences and circumstantial evidence, you must act on any part of the evidence favourable to an accused if you consider it to be reasonably possible in light of all of the evidence. If any aspect or aspects of the evidence mean that upon considering the whole of the evidence you cannot exclude the reasonable possibility that one or more of the elements of the charge you are considering is lacking, then you must find the accused not guilty of that charge.

Why is that so? This is because the burden is on the prosecution to exclude all reasonable hypotheses or explanations that are consistent with innocence or, put it another way, inconsistent with the accused's guilt of the charge you are considering. If in your judgment the prosecution have not done so you must give the accused the benefit of the doubt and find him not guilty of that charge.

Again, it is consistent also with the notion that the accused bears no burden of proving that he is not guilty.

...

[76]

[PROSECUTOR]: Your Honour, Your Honour can see Mr [WR] is in court.

HIS HONOUR: Yes.

[PROSECUTOR]: In relation to him giving evidence, of course he's been dealt with for substantive offences but there's cannabis, cultivation, use and ice use that would be part of him giving evidence and it would be appropriate for Your Honour to give him a certificate in accordance, as Your Honour has in the past, and I raise it now because, as Your Honour indicated, you don't necessarily want to interrupt the jury and have these things come up when they ---

HIS HONOUR: All right. Do you want to say anything about that [defence counsel]?

[DEFENCE COUNSEL]: I didn't take the point with Muja or anyone else, but I do. If he wants to object in front of the jury to answer some questions, he can do that. Your Honour can explain to him what's going to go on, but once he goes through that he can only object on the grounds of self-incrimination.

HIS HONOUR: Yes.

[DEFENCE COUNSEL]: Well, if he is going to make that objection, he can do that in front of the jury, and then Your Honour can say, 'I've now given him a certificate'.

HIS HONOUR: Why? Why does it have to be done in front of the jury?

[DEFENCE COUNSEL]: Because he can only take the objection on matters that have a tendency to incriminate him as opposed to, my experience is, a lot of them think, 'Well, I can just, you know, not answer what I don't want to'.

HIS HONOUR: But that's not the way it works. I just don't understand the point. Why does it need to be done in front of the jury?

[DEFENCE COUNSEL]: Because he takes the oath to answer all the questions and then we get to this issue, is it a question, and answer to which will actually incriminate him in some offending?

HIS HONOUR: It's plain that he is going to be asked some questions about drug related matters, isn't he?

[DEFENCE COUNSEL]: Yes.

HIS HONOUR: In respect of which he has not been charged, or if he has been charged they have been withdrawn, I don't know, in respect of which he would be entitled to, on usual principles, to object on the basis that the answers would tend to incriminate him. I would then have the power to rule on that. In the ordinary course I would agree with that, that there is a valid objection, but then explain also that ---

[DEFENCE COUNSEL]: The point is the jury would see that he is only prepared to answer some questions unless he's got the gift, the certificate.

HIS HONOUR: All right. What do you say, Mr [Prosecutor]?

[DEFENCE COUNSEL]: This is the important witness from my viewpoint.

HIS HONOUR: I understand that.

[PROSECUTOR]: It's not a gift, it's a legal right he's got not to answer questions, and as I understand it Your Honour brought this up so as to circumvent the interruption to the jury, but if that's what [defence counsel] insists upon, then so be it.

HIS HONOUR: All right.

[DEFENCE COUNSEL]: I am not insisting that the jury go out and we go through the process then. It can be explained to him now and if he takes the objection and Your Honour is satisfied that it's an issue he is going to incriminate himself on potentially, then just say, 'Okay, I now give you the certificate'.

HIS HONOUR: Part of the reason I was keen on the process that I foreshadowed the other day is not to do it on a question by question basis but rather to do it in a blanket way so that you don't have to consider each time whether or not you should ---

[DEFENCE COUNSEL]: I'm not asking for it to happen each time. Once he takes objection on the drugs issue, you can say to him, 'I now give you the certificate on any question relating to drugs'.

HIS HONOUR: I'm guessing that might even happen in evidence in chief.

[DEFENCE COUNSEL]: I don't know what my friend is are you going to ask him questions about ---

[PROSECUTOR]: I'm going to ask him about ice use and cannabis.

[DEFENCE COUNSEL]: We'll do it this way.

HIS HONOUR: Which way?

[DEFENCE COUNSEL]: The way my friend and Your Honour says but I don't want it becoming too fractured.

[98]

Section 11 certificates are ordinarily given in the presence of the jury. In Markovina [Markovina v The Queen (No 2) (1997) 19 WAR 119] (at 126), Malcolm CJ said that this is because the granting of a certificate puts the witness in a very special category. This was said by him in the context of the grant of a certificate to a prosecution witness. He suggested that this was 'a circumstance which enables the defendant to say that the witness is unreliable'.

In Hugo v The Queen [2000] WASCA 199; (2000) 113 A Crim R 484, the court was invited to reconsider whether the normal practice of giving a s 11 certificate in the presence of the jury was desirable. It declined to do so upon the basis that that was not an appropriate case in which to question the established practice (at 526). However, Sheller AJ (with whom Pidgeon and Anderson JJ were in agreement) said (at 527):

Given that certificates of immunity should generally be granted in the presence of the jury, the trial judge should take care, either then or in his directions to the jury or both, to explain to the jury the limited nature of the satisfaction which is preconditional to the granting of such a certificate, namely that it is not a finding by the trial judge of credit or truthfulness on the part of the witness, and that that question is for the jury to determine as they do with any witness.

He went on to say (at 527-528):

As I have said, I think that ordinarily when a trial judge compels a witness who has claimed privilege to give evidence pursuant to s 11, an explanation should be given to the jury as to why such an order is made, why a certificate is granted if it is granted and the consequences of this in terms of the unreliability of the evidence and the immateriality of the fact that the trial judge is satisfied in accordance with s 11.

If, in the course of explaining the effect of a s 11 certificate, the trial judge leaves a witness with the impression that he or she is immune from prosecution for perjury, this may affect the force of the oath or affirmation the witness has taken: Markovina (at 127) per Malcolm CJ. Moreover, it would be incorrect for counsel to assert that the effect of the grant of a certificate was that the witness could lie with impunity and it would be appropriate, in such a case, for the trial judge to direct the jury accordingly: Hugo (at 527) per Sheller AJ. As I have said, the recipient of a s 11 certificate can be prosecuted for perjury in respect of the evidence given. Moreover, that person can also be prosecuted in respect of an offence or offences admitted in the course of the evidence, notwithstanding the grant of a s 11 certificate. The only effect of the certificate is, as I have said, that the evidence given under its protection will not be admissible in those proceedings or in any criminal proceedings against the witness other than for perjury.

[102]

Rather than delivering a formal ruling, I think I will just indicate, for the convenience of the parties so that they can reflect upon their positions, that if [GH], as expected, were to object to giving evidence in the trial pursuant to s 128 of the Evidence Act 1995 (NSW), and if a certificate were granted to him in the absence of the jury, I would propose to briefly inform the jury of that fact, and very generally of its effect. That is so for four reasons.

First, I think that it would be highly artificial for the jury not to know of that important aspect of the evidence of [GH].

Secondly, I have already adopted the identical procedure with another witness who was granted a certificate, Ms [E]. If the jury were not told of that I think that that could be seen to be inconsistent. If the jury came to believe (or otherwise know) that a certificate had been granted, the jury could perhaps speculate on the strangeness of me having adopted that procedure with regard to Ms [E], but not having adopted it with regard to [GH].

Thirdly, I consider that if the objection were taken in a highly formal way, and the intricacies of the section worked through thereafter in the absence of the jury, it would be odd and could lead to speculation if, the objection having been successful, the jury were simply to return to Court and I were to tell them nothing about the outcome of that objection that had been taken in their presence.

Fourthly, in light of evidence on the voir dire with regard to the number and nature of inconsistent statements made in the past by [GH], including on oath, I consider it highly likely in any event that the fact that he has been granted a certificate, if that is to occur, will come out in evidence in any event, pursuant to ss 38, 55, 103, and 137 of the Evidence Act.

In short, I accept that there is no explicit guidance from the Court of Criminal Appeal or the High Court of Australia with regard to this particular question of whether or not a jury should be informed of the granting of a s 128 certificate. I also accept that it could be said that, to some small degree, the discussion in R v Macarthur [2005] NSWCCA 65 at [37] to [41] militates in support of not telling the jury about the granting of a certificate.

Nevertheless in the circumstances of this trial, for the convenience of counsel, I indicate that my proposal at this stage is that, if [GH] objects to giving evidence, and if he is granted a certificate pursuant to the Evidence Act, I propose to explain to the jury the fact that that has occurred, and very briefly the effect of it. ...

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