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[2012] TASSC 88
General information, not legal advice.
Supreme Court of Tasmania
2012-12-21
Evans J
Original judgment source is linked above.
CITATION: Tasmania v Standage [2012] TASSC 88
Criminal Law - Evidence - Propensity, tendency and coincidence - Admissibility and relevancy - Tendency and coincidence evidence under the uniform evidence law - Generally - Unfair prejudice - Reliance on jurors to comply with directions.
Evidence Act 2001 (Tas), ss97(1), 101(2), 135(a), 137.
R v BD (1997) 94 A Crim R 131; Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297, KMJ v Tasmania [2011] TASCCA 7, applied.
R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81; Marlow and Kelly v R [2001] TASSC 146; Owen v R [2001] TASSC 79; Webb v R [1994] HCA 30; (1994) 181 CLR 41, Leaman v R (1987) 28 A Crim R 104, referred to.
Criminal Law - Procedure - Information, indictment or presentment - Joinder - Of counts - By statute - Same facts or series of offences of same or similar character.
R v Clayton-Wright [1948] 2 All ER 763; R v Kray [1970] 1 QB 125; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Anderson (1973) 5 SASR 256; Sutton v R [1984] HCA 5; (1984) 152 CLR 528; De Jesus v R [1986] HCA 65; (1986) 68 ALR 1; Lancaster v R [1989] WAR 83, followed.
Judgment Number: [2012] TASSC 88
1 The accused, Stephen Standage, applies pursuant to the Criminal Code 1924 ("the Code"), s326(3), for the severance of an indictment in which he is charged with two counts of murder. Count 1 alleges that he murdered Ronald Frederick Jarvis by shooting him at Nugent on 31 July 1992. Count 2 alleges that he murdered John Lewis Thorn by shooting him at Lake Leake on 24 August 2006.
2 Counsel for the accused, Mr D J Gunson SC, submits that the indictment should be severed because:
3 Mr Gunson characterised the first of the above issues as critical and the second issue as a "fall back position". In order to determine the second issue it is necessary to assess the extent to which the evidence on each count is cross-admissible. For the purposes of that assessment, it is necessary to address the Crown's case at its highest on both counts. It is convenient to attend to this assessment first as, if the evidence is not cross-admissible, the Crown concedes that the indictment must be severed. Moreover, to a very significant degree, this assessment will inform my decision on the first issue, that is, whether the crimes are a series of the same or a similar character. That I will first address the accused's fall back position does not mean that I have overlooked that Mr Gunson advanced the first issue as a critical one.
4 The Crown asserts that the evidence that the accused was the killer on one charge is admissible on the issue of whether he was the killer on the other charge as both coincidence evidence and tendency evidence. In arguing for the cross-admissibility of the evidence on these bases, the Crown relies on similarities between the killings.
5 For the evidence to be cross-admissible as either or both coincidence evidence or tendency evidence, it must have significant probative value, s97(1)(b), and s98(1)(b). As to coincidence evidence, consistent with s98(1)(b), the probability of the similarities between the killings being explicable on the basis of coincidence is a crucial aspect of the assessment of the probative value of the evidence and its capacity to prove that the accused was the killer on each occasion. Whilst no similar statutory reference to similarities underpins an assessment of the probative value of the evidence as tendency evidence, it is well settled that a significant factor in the assessment of the strength of tendency evidence is the degree of similarity between the conduct on the occasions relied upon. See FB v R [2011] NSWCCA 217 at pars[28] - [30]; BP v R [2010] NSWCCA 303 at [108], and R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at pars[57] - [60]. So whilst it is necessary to keep the distinction between coincidence evidence and tendency evidence in mind, the distinction is less stark in this case than it can be, as in arguing for the admission of the evidence as both coincidence evidence and tendency evidence, the Crown relies on the same similarities between the killings.
6 The Crown case against the accused is outlined in volume 19 of the papers provided to the Court, which contains a tendency and coincidence notice ("the Notice") delivered by the Crown.
7 For the purposes of this severance application, the parties are agreed that:
"• All of the evidence referred to in Volume 19 in relation to Count 1 (and associated inferences) is admissible in relation to Count 1.
Evidence agreed to be admissible on both counts
8 The first evidence I mention is that referred to in the third dot point above. It is agreed that this evidence is admissible on both counts as tendency and coincidence evidence. The evidence is as follows.
9 In the 1990s the accused knew Scott McNally. McNally purchased cannabis from the accused. In approximately 1995 the accused asked McNally for a loan of $15,000 and offered cannabis as collateral. To that end they arranged to meet on a forestry road near Nugent. Unknown to the accused, McNally brought Bruce Avery to the meeting. When McNally and Avery exited McNally's vehicle the accused walked into the bush and returned holding a plastic bin. From the bin the accused produced a revolver and threatened to kill Avery and McNally if McNally did not hand over the money. McNally did so and he and Avery left. The accused's revolver was visually similar to a Webley .455 revolver, which was the type of revolver that had been used to kill Jarvis.
10 Avery subsequently took police to the location where this incident occurred. It was 1,420 metres from where Jarvis had been killed.
11 By its Notice the Crown asserts that this evidence of McNally and Avery shows that the accused has "a tendency to arm himself with a gun [and] lure a person who he has a drug association with to a remote bush location with the intention of killing him or threatening him with a gun in order to obtain money".
12 In 1997 the accused suggested to James Zammit that they go halves in growing cannabis hydroponically at Zammit's property. In the course of their conversation the accused said to Zammit:
"Well you can't fuck me around 'cos if we do this we're gunna do it for real. I'm gunna put a lot of money into getting the lights and all that, and you don't fuck me around 'cos if you do I will put a bullet through you the same as I did with Jarvis ... Everybody else knows or the media had it that there was only one bullet but I'm telling ya I used two bullets."
13 By its Notice the Crown asserts that this evidence of Zammit shows that the accused has "a tendency to threaten to kill a person over money with whom he is contemplating a drug association".
14 By its Notice the Crown further asserts that this evidence of Zammit, McNally and Avery "establishes a tendency for the accused to at the very least threaten to kill people over money with whom he is in a drug relationship" and that "[i]f the jury are satisfied that the accused committed either count 1 or count 2, they can use such evidence along with the tendency evidence of Zammit but in particular McNally and Avery to conclude that the accused has a tendency to take people with whom he has a drug association and from whom he has borrowed money to remote bush areas to either shoot them or threaten to shoot them with a gun and to then steal money from them."
15 The deceased, Ronald Jarvis, was last seen alive in Hobart on 31 July 1992. At that time he was 37 years of age.
16 He resided at 27 Howrah Road, Howrah with Ian Baker whom he had known most of his life.
17 Jarvis was in a relationship with Debra Marshall. Although they were not living together they would spend significant time together. Debra Marshall resided at 8 Rattle Street, New Town. Her parents lived at 32 Apsley Street, South Hobart.
18 Jarvis and Baker both worked on a fishing vessel called the "Thalassa". They worked out of Strahan. Prior to going on a fishing trip their normal practice would be for Baker to fly to Strahan and get the boat ready and for Jarvis to travel to Strahan by car a couple of days later.
19 Jarvis and the accused both cultivated and trafficked cannabis. They had significant dealings in cannabis with each other.
20 The accused had known Jarvis for some four years prior to July 1992. They socialised regularly, drank and played pool together.
21 The accused owed Jarvis about $8,000. Jarvis was becoming increasingly agitated about being paid.
22 Jarvis telephoned the accused's residence four times in the course of the six days leading up to 29 July 1992, the last time being on 28 July 1992.
23 Jarvis always carried a leather wallet and he liked to have plenty of cash in it. The accused was aware of this.
24 Jarvis was short of money prior to 29 July 1992. He owed $1,500 to Baker. He had borrowed $200 from his mother. He owed Shane Rattenbury $1,000, and on Thursday, 28 July, they discussed its re-payment.
25 It was known that Jarvis had a stash of cannabis at Lachlan on a property owned by Frank Cashion.
26 At the time of Jarvis' disappearance the accused was in financial difficulties. The accused's personal relationship with his partner had broken down, and his business with her was financially crippled. He had a gambling problem. The licensee of a hotel where the accused gambled tallied the amount of the accused's gambling turnover in one session at $32,000. Another licensee described the accused as a mad punter. The accused told a police officer it was common for him to blow thousands of dollars on bets.
27 Early on Friday, 31 July 1992, Jarvis drove Baker to the airport. Baker flew to Strahan at 7.45am. The plan was for Jarvis to drive to Strahan on the following Monday morning to join Baker on a fishing trip. Jarvis told Baker he was returning home to wait for a telephone call from a person who owed him money.
28 Arrangements had been made for Debra Marshall's sister Gabrielle and her husband Gordon Leek to stay at 27 Howrah Road while Baker and Jarvis were away fishing The Leeks were visiting from New South Wales. At approximately 11am that Friday Debra Marshall and the Leeks arrived at 27 Howrah Road. Jarvis was packing his car for the fishing trip. Jarvis, Debra Marshall and the Leeks then went to Debra Marshall's parents' residence at 32 Apsley Street, South Hobart.
29 At about 3pm that afternoon Jarvis left 32 Apsley Street, telling Debra Marshall and Gabrielle Leek that he was expecting an important telephone call from a person who owed him money. He told them that the call had been arranged for 4pm. He further told Debra Marshall that he would meet her father for a drink at the Globe Hotel at 5pm or 6pm. He also told Gordon Leek that he would meet him, Dennis Debnam and Ronald Morgan at the Globe Hotel at 5pm.
30 At 3.20pm that afternoon Jarvis had two beers at the Globe Hotel with Ronald Morgan. When Jarvis left Morgan he told Morgan he would return at 6.30pm for a family get-together. That was the last time Jarvis was seen by friends or family.
31 That afternoon the accused telephoned Jarvis at approximately 3.45pm from the Clarence Hotel. The call and its timing had been previously arranged between the two of them on Wednesday, 29 July 1992. The accused told police that Jarvis attended at the Clarence Hotel, arriving in his ute, and left at 4.30pm having explained that he had visitors from Sydney.
32 That afternoon Diane Rattenbury received a telephone call from Jarvis. He said he was at the Clarence Hotel and would call around to see the Rattenburys that night at about 6pm to 6.30pm. He also said he was going with somebody to get some money and he would have money for the Rattenburys.
33 No one has heard from Ronald Jarvis since his telephone call to Diane Rattenbury . He did not attend the Globe Hotel as arranged.
34 On the following morning, Saturday, 1 August 1992, Debra Marshall and the Leeks attended Jarvis' residence at Howrah (the Leeks having decided the night before not to stay the night at Jarvis' residence). His vehicle was in the driveway. It was packed for fishing. The premises had not been disturbed. Jarvis was not there nor was his wallet.
35 Debra Marshall unsuccessfully endeavoured to locate Jarvis. He did not arrive at Strahan for the fishing trip. Baker made calls to numerous people in an effort to locate Jarvis but was unable to do so.
36 Debra Marshall endeavoured to establish the identity of the person named Steve who owed Jarvis $8,000. Her enquiries led her to the accused. On Friday, 7 August 1992, they spoke on the telephone. The accused told her he would not talk to her about the matter on the telephone but arranged to meet her on the following Thursday. They met at her home. She asked the accused whether he had rung Jarvis at 4pm on the previous Friday. He responded, "It's none of your business". He later said he had met Jarvis for a drink but would not say where. She asked him if he owed Jarvis, $8,000, to which he replied, "That's between Ron and me", and further said he could not "afford the heat to come on me".
37 At about this time the accused also visited Shane Rattenbury, who told the accused that he had heard that the accused owed Jarvis money. The accused told Rattenbury to keep his mouth shut and threatened him.
38 On 10 August 1992, Jarvis' mother reported him missing to police.
39 On 14 August 1992, the accused was interviewed at St Helens by police. Subsequent to the interview the accused saw Debra Marshall at the Prince of Wales Hotel and spoke to her. He was agitated and angry about being spoken to by police. He wanted to know if she had brought the heat on him. He told her Jarvis had been murdered by a very close friend and that if she did not shut her mouth it would be shut for her. At this stage there was no evidence that Jarvis was dead, or had been murdered.
40 In July/August 1992 Frank Cashion was in Europe. At 2pm on Wednesday, 5 August 1992, police responded to a call that his residence at Lachlan had been burgled. They were met by a neighbour, Lawrence Mundy. The garage had been broken into, but nothing had been taken. In the woodshed, there was a freshly dug hole about 60cm wide and approximately 20cm deep at the apparent site of Jarvis' stash of cannabis. Mundy told police he checked the property every day and the burglary had to have occurred sometime between 4pm on 4 August and 11am on 5 August 1992. He also said he saw an early model lime green Nissan Patrol 4WD near the property on 5 August 1992. At that time the accused owned a dark green Nissan Patrol.
41 After it was reported that Jarvis was missing, police again attended Frank Cashion's property at Lachlan on 12 August 1992. They were accompanied by two customs officers. Each officer had a dog trained to detect the smell of drugs. The dogs were particularly good at detecting cannabis. The property was searched using one dog at a time. At the hole that had been dug in the woodshed, a dog gave an extremely strong reaction to the presence of drugs. This satisfied the controllers that drugs had been present in the hole some time prior to the search.
42 On 11 February 1993, Jarvis' remains were found in bushland at Nugent.
43 To access the location where the remains were found it was necessary to travel 5.8 kilometres along a dirt road called the N road, and then 80 metres down a side track called the Old Mill Road. The remains were some nine metres along an animal track to the right of the side track. The location is isolated. It seemed that branches had been placed over the body. Two saplings nearby had been broken off at about a height of three to four feet. Jarvis' trousers were bunched up. The sleeves of his jacket and jumper were inside out. The shoes were some distance from the body. One shoe was in vegetation 1.5 metres above the ground, the other was nearby. His wallet was not located.
44 The remains included a skull. Two spent bullets were found near the skull. They had been fired from a Webley .455 revolver. The accused had a similar revolver both before and after Jarvis' disappearance
45 A forensic scientist obtained parallel luminol reactions on the track before the animal track indicating the possible presence of human blood.
46 Subsequently several cannabis compounds were located in the vicinity of where the remains were found. Cannabis plants were growing in one compound 166 metres from the remains.
47 In the course of a number of conversations the accused had with Dennis Bowerman, he said that he had borrowed money from Jarvis; that Jarvis' body was located close to a plantation that he and Jarvis were growing together; and that he was concerned he would be implicated in the murder of Jarvis. With respect to the murder the accused, on one occasion, said, "If things have got to be done, they get done".
48 In early 1999 the accused said to David Pope that Jarvis had been murdered over a $10,000 debt and the police could not pin it on him as he was too smart for them and they were all stupid; showed him newspaper clippings in respect of the Jarvis murder; said he could "out manoeuvre anyone including the police"; and said that he kept the clippings to show how smart he was in avoiding being charged with the murder.
49 During an interview with police on 14 August 1992, the accused said he had known Jarvis for about four years; in a telephone conversation on 29 July 1992 they had arranged that the accused would ring Jarvis at 4pm on Friday, 31 July 1992, to organise meeting for a beer; he rang Jarvis at his home from the Clarence Hotel on that Friday at 3.45pm and invited him to the hotel; Jarvis arrived shortly afterwards; they had approximately four beers; and Jarvis said he had to go because he had visitors from Sydney.
50 During the interview with police on 14 August 1992, the accused said he had recently been involved with Jarvis in drug deals. He also outlined his movements over the few days after Jarvis' disappearance, including hiring a hire car, and his movements in the hire car.
51 The hire car rental records established that the vehicle had travelled 1,025kms. A police officer travelled the route the accused stated he had travelled in the hire car and could only account for 854.8kms.
52 On 7 April 1993, the accused was again interviewed by police. During this interview he said that Jarvis purchased a pound of cannabis from him for $3,000 at the Clarence Hotel on 31 July 1992, and had arranged to telephone him that Sunday if he wished to purchase a further five kilograms for $15,000.
53 In 1998 a review into the murder of Jarvis was commenced by police. There was publicity in respect of the review. The accused telephoned police. During a conversation with a police officer, the accused claimed that police had been involved in Jarvis' death; that Jarvis owed a lot of money to two drug squad officers, and this, and the need to silence Jarvis about police selling confiscated drugs to Jarvis, was part of the reason why Jarvis was killed; it was common knowledge that Jarvis was in with the police and that Jarvis used to brag about having access to marijuana that had been confiscated by police and then given or sold to Jarvis; and that he had told investigators about the involvement of police in the death of Jarvis but they had done nothing about it.
54 Neither police nor close friends and family of Jarvis know of any associations between him and police.
Summary of the case advanced by the Crown on count 1
55 In brief summary, the case advanced by the Crown against the accused on the murder of Jarvis is as follows. Jarvis had known the accused for some four years. They had drug and financial dealings together. The accused is the last person known to have seen Jarvis alive. The accused arranged to telephone Jarvis at 4pm on 31 July 1992. Jarvis was becoming increasingly agitated about being paid money owed to him by the accused. Jarvis believed the accused was going to pay him that afternoon. Jarvis made an arrangement to pay money he owed Shane Rattenbury later that afternoon. He in effect told Diane Rattenbury that he was going with the accused to get money. The only other commitments Jarvis had that afternoon and night were family commitments. As Jarvis failed to keep those commitments it is likely he was killed that afternoon and the killer was the accused. It is apparent that Jarvis' killer was known to him and he voluntarily went with him given that: there was no evidence of any disturbance at his home; his vehicle was parked in his driveway; and the location where he was killed was very remote. That location was known to the accused. He and Jarvis had a drug compound in the area. Jarvis was shot with a pistol similar to one that the accused possessed. Jarvis' wallet was stolen and his stash of drugs had been disturbed. The accused had knowledge of the murder before anyone else knew Jarvis had been murdered. The accused had made admissions and had lied to police out of a consciousness of guilt. The accused had a tendency to take people with whom he has a drug and/or financial involvement to remote locations and threaten to kill them with a gun.
56 In 2006, John Thorn resided on a property known as Lake Yalleena, near Lake Leake, not far west of Kalangadoo. He was 59 years of age and lived with his partner, Susan Fletcher. He had resided at Lake Yalleena for some eight years. He had significant assets. The area of the Lake Yalleena property was over 400 acres. It had bushland, a lake with a trout fishery, and holiday cabins.
57 In 2006 the accused lived at 91 Lake View Road, near Lake Leake, with his partner, Elizabeth Lord, and his elderly mother, Maud Standage. The area of his property was 39 acres and it included both pasture and bushland. At the time of Thorn's death the accused had lived there for approximately three years. The accused was close friends with Thorn. They would see each other on a daily basis, often twice a day. The accused knew that Thorn always carried a wallet with a substantial amount of money in it.
58 For some months prior to Thorn's death the accused had little spare money. The accused was a heavy gambler. Thorn lent money to the accused. At times the accused repaid Thorn with cannabis.
59 Thorn grew cannabis on his property and sold it to a small number of local people.
60 The accused was involved in growing and selling cannabis before, at the time of, and after Thorn's death. The accused and Thorn discussed growing and selling cannabis. Thorn told Simon Peters that he was in partnership with the accused.
61 The accused has said that on the day Thorn went missing, Thorn told the accused he wanted to grow more cannabis to cover some fishing fines and had found a new place to grow cannabis by a creek. Thorn wanted the accused to be involved. After Thorn's death a new compound, with fresh fertiliser on it, was found near a creek on Thorn's property in the vicinity of an area known as "Mount Harry".
62 Thorn "stashed" cannabis and money on his property. The accused knew of the stash and talked about it on the day Thorn's body was found.
63 On Monday, 21 August 2006, Thorn and Susan Fletcher went to Launceston. Thorn purchased dolomite, which can be used in the cultivation of cannabis, and returned home. Fletcher stayed in Launceston. Her regular routine was to stay in Launceston and return to Lake Yalleena on the Friday. The accused would have been aware of this. However, on that Wednesday, after a telephone discussion with Thorn, she decided to return the next day. She arrived at Lake Yalleena at 3pm on Thursday, 24 August 2006. Thorn usually fed his fish at 4pm. He was not there. At about 5pm Susan Fletcher went looking for Thorn. She called at the accused's residence and he offered to join her in searching for Thorn and did so. She notified police that Thorn was missing at approximately 7pm. A full police and SES search commenced the next morning.
64 At about 4pm on Friday, 25 August 2006, searchers drove down a bush track 3.9kms east of the Kalangadoo shop on the Lake Leake Highway. The track intersects the highway on its northern side some distance east of the intersection of the M road with the highway. One hundred metres down the track the searchers observed two tyre marks. One of the tyre marks looked like that of a tyre on Thorn's utility. The other tyre mark appeared to be that of a car. Thorn's utility, a Nissan flat tray 4WD, was found 1.7km down this track ("the Nissan track") from the Lake Leake Highway. The utility was pointing away from the Lake Leake Highway in a northerly direction. The keys were in the ignition. Nothing was found in the vicinity of the utility. The Nissan track continued north to a point where it was blocked off at a creek where a bridge had been dismantled.
65 On the afternoon of Saturday, 26 August 2006, Thorn's son Adam and others, one of whom was Paul Evans, drove north on the M road and then in an easterly direction until they came to the creek at the northern end of the Nissan track where a bridge had been dismantled. They walked across the creek to the Nissan track and south along it to a point where Evans saw tyre marks at a T-junction to a small track. They walked down the small track and at one point saw some drag marks. Further on they came to a turning circle where Evans recognised tyre marks from Thorn's utility. They returned to the drag marks, walked along an animal track which the drag marks led to and found Thorn's body.
66 Thorn's body was some 2.3kms north of his utility. Police inspected the Nissan track between Thorn's utility and the small track leading to Thorn's body ("the body track"). They observed a number of broken small saplings, some of which appeared to have red paint on them. The paint on two of the saplings, one 1,325 metres from Thorn's utility, the other 75 metres from Thorn's body, was examined by a Forensic Scientist. He found that the paint on one of the saplings was indistinguishable in relation to colour, chemical and elemental composition from paint on Thorn's utility's bonnet. He also found that paint on the other sapling was indistinguishable from paint from the utility's number plate. This, together with the observations of tyre marks, shows that Thorn's utility travelled to the area where his body was found, and then his killer drove the utility back to where it was located.
67 On the body track near where the body was found there was a pool of blood, on top of which leaves had been placed. From near that pool drag marks were apparent. The drag marks went across the track from south to north. Thorn's body was located some 20 metres from this point. There was little or no blood in the drag marks. This suggests that Thorn's body had been left for some time where the pool of blood had formed.
68 In the bush, approximately 11 metres from Thorn's body, a sapling had been sawn off. A nail had been freshly inserted in the stump of the sapling. The remainder of the sapling had been placed over Thorn's body. Close to the stump of the sawn-off sapling was the stump of another broken sapling, the broken portion of which had also been placed over Thorn's body.
69 The nail in the sapling stump appears to be a marker. It pointed towards the body. It was the type of nail used for decking. No similar nail was found at Thorn's residence or in his vehicles. A mixed DNA profile was found on the nail. The minor profile was consistent with the DNA of one of the searchers, Evans, who had touched the nail. Assuming Evans contributed to the DNA found on the nail, if all the DNA characteristics matching him are removed from the profile, then the remaining partial DNA profile matches the DNA profile of the accused. The chance of a second person, unrelated to the accused, matching this remaining component of the DNA profile is less than 1 in 76 million.
70 Thorn had been shot 10mm to the rear of his left ear. A .22LR (Long Rifle) calibre fired bullet was recovered from inside his skull.
71 A search for Thorn's wallet on his body and in the area of his body was not conducted until 4pm on Sunday, 27 August 2006. The wallet was not found. It was not until after this search that it was known that the wallet was missing.
72 DNA that was not inconsistent with that of the accused was extracted from swabs taken from Thorn's utility. The chance of a second person, unrelated to the accused, matching a profile obtained from a chrome strip above the outside of its passenger door is less than 1 in 100 million. The chance of a second person, unrelated to the accused, matching a profile obtained from the key tag to the keys in the utility's ignition is less than 1 in 6. The chance of a randomly chosen person having a DNA profile that would not exclude them as a possible contributor to a profile obtained from the passenger side arm-rest is less than 1 in 49. The chance of a randomly chosen person having a DNA profile that would not exclude them as a possible contributor to a profile obtained from the steering wheel is less than 1 in 38.
73 A DNA profile that was not inconsistent with that of the accused was extracted from a swab from the inside surface of the left sleeve of Thorn's shirt from 150mm above the cuff to the elbow area. The chance of a randomly chosen person having a DNA profile that would not exclude them as a possible contributor to this profile is less than 1 in 20.
74 A DNA profile that was not inconsistent with that of the accused was extracted from a swab from the outside surface of Thorn's cap excluding the peak. The chance of a randomly chosen person having a DNA profile that would not exclude them as a possible contributor to this profile is less than 1 in 10.
75 The accused's fingerprints were found on lifts taken from the outside passenger side of Thorn's utility above the door and at the "A" pillar.
76 Thorn had rarely travelled down the track where his utility was located. It is unlikely that he travelled down the track to cut wood on the day of his death, as he had on a previous occasion travelled down it looking for firewood and found none. The likely reason for him travelling down the track was connected with growing cannabis.
77 About 80 to 100 metres from the location of Thorn's body there was both a creek and a disused cannabis growing compound ("the body compound"). About 5kms away was a compound used by the accused to grow cannabis ("the Mason compound"). In September 2010, police searched the accused's property and found an old outdoor cannabis compound, a grow-room containing cannabis plants, and cannabis hidden in large garbage bins and 20 litre drums. In February 2010, the accused had outdoor cannabis compounds at Coles Bay.
78 Similarities between the construction and size of these outdoor compounds, the drums of piping and fittings used, and the method of planting and watering adopted, show that the body compound was that of the accused.
79 Following a post-mortem examination of Thorn's body it was concluded that his death was due to a gunshot wound to the head from behind the left ear. There was no unburnt gunpowder within the wound suggesting that he was shot from beyond 80cm. There were abrasions to his right and left wrist. There was a linear abrasion over the posterior aspect of his left leg. Linear marks from dirt were on the anterior left knee and on the posterior right lower leg consistent with the body having been dragged. The shirt was buttoned but his arms were not in the sleeves and the trousers were bunched at the bottom of his legs.
80 Between 2 and 7 October 2010 the accused's property was searched by police. A number of marker-like items were found which apparently indicated the position of concealed containers of cannabis and an old outdoors cannabis compound.
81 There is an old tree stump on the northern side of the body track about 20 metres from where Thorn's body was found. On Sunday, 5 December 2010, a tripod of sticks was located next to the old stump. The tripod appears to be a marker. This tripod is similar to two of the markers found on the accused's property, one of which was near a disused outdoor compound.
82 On Friday, 25 August 2006, prior to the discovery of Thorn's body, the accused spoke to Susan Fletcher. He told her that on the previous day he had been with Thorn so his DNA would be on Thorn's utility and that his DNA would show that he was the last person to be with Thorn. This was at a time when nobody knew that Thorn had died although this was a possibility. Moreover there was nothing to suggest that murder, rather than suicide or an accident, would be an explanation for Thorn's death. The accused's reference to DNA suggests that he knew that Thorn had died in suspicious circumstances. In the course of their conversation on that Friday the accused also said to Susan Fletcher that for reasons concerned with a feud between Thorn and Michael and Vicky Anderson, he and Thorn had driven in Thorn's utility to the M road and up the M road past the Andersons' house. Thorn had proposed puncturing the Andersons' water tanks, but they had driven back without doing this. He said that prior to this trip Thorn had helped him unload stock feed at about 12 noon to 12.30pm. On 16 March 2010, the accused is recorded saying things to much the same effect. He in substance said that he saw Thorn on Thursday, 24 August 2006, and that the real reason that Thorn had come to his home was that Thorn wanted him to go up the road and puncture the water tanks of some people he was having a feud with.
83 On Sunday, 27 August 2006, the accused participated in a recorded interview. What he then said included the following. He had known Thorn for 25 years. They were close friends. On 24 August 2006, he took his Mercedes for a drive of about 10kms because it had not been out for a day or two. He drove about 4kms or 5kms towards Swansea and was away 20 minutes at most. As he came back he got some fuel for his car at the shop. When he returned home the community nurse was there. During the course of this interview the accused made no mention of travelling on the Lake Leake Highway with Thorn in Thorn's utility on Thursday, 24 August 2006. The proprietors of the shops say that the accused did not attend the shop for petrol on 24 August 2006 as he claimed.
84 A community nurse attended the accused's mother at his residence on 24 August 2006. She arrived at approximately 2.20pm to 2.25pm. She did not see the accused when she arrived. His Mercedes was not there. She saw him and his car at about 2.40pm as she was leaving. The accused had returned to his residence by 2.31pm as he made a telephone call from the residence at that time.
85 It takes 8.22 minutes to travel from where Thorn's body was found to the accused's residence.
86 Thorn's utility was seen heading in an easterly direction on the Lake Leake Highway at about 2pm on 24 August 2006.
87 The accused is the last person known to have seen or spoken to Thorn.
88 On the morning of 24 August 2006, a vehicle of the same make and colour as that of the accused's partner was seen parked near the intersection of the Lake Leake Highway and the Nissan track. The driver was a female. Several weeks later the accused's partner and her vehicle were observed near that track.
89 In June 2006 Thorn visited his son Adam in Melbourne. Thorn told his son he needed to tell him a few things in case something happened to him. He said he had hidden cannabis at "Mount Harry" and drew maps to explain where it was. He said he had told the accused where this spot was and said that if anything happened to him his son should find the cannabis and take it to the accused as he would get rid of it. Thorn also told his son of three locations where he had hidden money and drew plans of them. After Thorn's death his son found one of these locations, which contained approximately $13,000.
90 On Wednesday, 30 August 2006, Adam Thorn and others searched for the cannabis that had been hidden by Thorn at Mount Harry. A hide was located at the point Adam Thorn believed to be the spot described by his father, but save for a few remnants of cannabis, none was there.
91 Rocks appeared to have been disturbed at the site of the hide. Some rocks were taken and swabbed for DNA. The major profile obtained from one of the rocks matched the accused's DNA profile. The chance of a second person, unrelated to the accused, matching this profile is less than 1 in 100 million.
92 The day after Thorn's body was found the accused said that Thorn had a heap of money buried. When it was suggested to him that it would be lost forever, he replied it would not be.
93 Police seized numerous rifles from Thorn's property and from other residences at Lake Leake. None of the rifles seized were found to be the murder weapon.
94 A police search on 27 August 2006 found no firearms on the accused's property. He told police that he had handed in his guns after the gun laws were changed following Port Arthur.
95 Prior to Thorn's death, the accused had told Andrew McKee, that he had firearms stashed in the bush. The accused told a Tasmanian undercover police officer on 16 March 2010, "I just sold all me guns that I didn't need and the other ones sort of just got stashed ... ". He also said that he had used a .22 magnum for a hundred years. The accused told Victorian undercover police officers on 5 August 2010 that he had a few shooters stashed.
96 A search of the accused's residence conducted by police between 2 September and 7 September 2010 found: one .22 calibre rifle bolt (located in a plastic bag in a wardrobe in the accused's bedroom); one .22 calibre rifle magazine (located in a plastic bag in a wardrobe in the accused's bedroom); one .22 calibre rifle silencer (located in a garden shed); several .22 calibre shell casings; a .303 shell casing and ammunition; shotgun shells; and a quantity of .22 calibre ammunition.
97 The accused told police that the .22 rifle bolt and the .22 magazine located in his bedroom had been found by him in the shed and must have belonged to the previous owner. The previous owners deny this. Anthony Ryan owned the property from 2000 to 2003. He sold it to the accused. He had a keen interest in firearms, having served in the Australian Army for five years. He was an instructor in the infantry. He denied leaving any firearms, ammunition or equipment at the property. He denied shooting into trees or seeing a tree stump in that way affected. He denied seeing evidence of firearm use. Similarly, John Wright, who owned the property prior to Ryan only shot a .22 rifle in one particular area. He denied leaving any property behind.
98 On Saturday, 26 August 2006, when at the Campbell Town Hotel the accused said that Thorn was killed because he carried a lot of money on him. At this time it was not known to police that Thorn's wallet was missing. This became known some time after 4pm on Sunday, 27 August 2006. While at the hotel the accused placed a number of bets at its TAB. It was noticed that the accused had in excess of $1,000 in his wallet. Video surveillance confirms that he had a wallet at the time. The accused had made no cash withdrawals from bank accounts to which he had access that account for him having such a large sum of money on that Saturday.
99 On 29 September 2006, police had a recorded conversation with the accused in which he said "I never carry a wallet" and, "I don't keep a wallet".
100 The searchers also located a tree stump which appeared to have been used for target practice. The stump contained four flat-head nails, nailed in a position which suggested that they had attached a target. A total of 33 projectiles were found in the stump.
101 About 10 months after Thorn's death the accused told a police officer that Thorn was a very greedy man.
102 Between February 2010 and November 2010, the accused spoke to Tasmanian undercover police officers on a number of occasions. During their conversations, he demonstrated that he had significant knowledge of the Thorn murder scene. He confirmed Sue Fletcher's statement in respect of the water tank trip, he discussed the fact that Thorn was "tight" and had stashes of money, and he gave an account of Thorn telling him he was going to sell cannabis to somebody, which the accused had never mentioned to anybody else.
103 In 2010 the accused spoke with Victorian undercover police officers. In the course of their discussions the accused in substance said he had firearms stashed that included a .22 magnum and a Browning .22 pump action. He said of Thorn, "Well fucking greedy man ... probably got what he deserved I reckon". He made comments implying that he murdered Thorn, which include the following:
"The police have got nothing on me or they haven't got enough." "I can't see how they could possibly have enough on me." "There is only one possible thing that could get me undone." "I just tell you, if I shot somebody, right the weapon just disappeared. If they got, if they got the weapon. But they obviously can't trace it to me or anything, I mean a fucking gun is just a gun." "The fucking cops have got nothing on me. The only thing the cops would have on me is if I open this fucking mouth."
Summary of the case advanced by the Crown on count 2
104 In brief summary, the case advanced by the Crown against the accused on the murder of Thorn is as follows. The accused had known Thorn for many years. They were best friends and had drug and financial dealings together. The accused is the last person known to have seen Thorn alive. Thorn was shot with a .22LR (Long Rifle) calibre fired bullet. The accused had stashed firearms that used the same calibre bullet and lied to police when he said he had no firearms. There is no evidence to suggest other than that Thorn's killer was known to him and he voluntarily went with him. It is likely that the killer was a local because the killer had to know the area and know Thorn. The place where Thorn's body was found was known to the accused who had a cannabis compound nearby. To drive to the location of Thorn's body it was necessary to drive down the Nissan track. Thorn and the accused were both driving towards the intersection of the Nissan track with the Lake Leake Highway at about the same time shortly prior to Thorn's death. Thorn was likely to have been driving in the area where his body was found, either to visit a cannabis compound, or look for a new site for one. Thorn would not have gone with a person who was not a close associate. Given the close relationship between Thorn and the accused, their mutual involvement in growing and selling cannabis, and their discussion of a partnership, and Thorn's desire to grow more cannabis on the morning of the day of his death, it is highly likely that Thorn went with the accused that afternoon, in the belief they were going to investigate new cannabis growing sites.
105 It is highly unlikely that between the time at which the accused said to Susan Fletcher that he and Thorn drove down the M road that afternoon, Thorn found another trusted associate to take down the Nisan road to investigate sites. It is likely the killer drove his own vehicle to the point where Thorn's utility was subsequently found, and then went the rest of the way in Thorn's utility. A car similar to that of the accused's partner was seen near the entrance to the Nissan track the following day. The body was dragged after Thorn was shot. The killer marked the position of Thorn's body. A branch marker in the form of a tripod was near the point where the body was dragged off the body track. That marker is similar to markers on the accused's property. A nail was placed in a sapling stump to mark the location of the body. As the accused's DNA profile was on the nail it is almost beyond question that he placed the markers. DNA consistent with the accused's was found on Thorn's clothing, cap and utility.
106 At a time when it was not known that Thorn was dead the accused told Susan Fletcher he was the last person to be with Thorn alive and made references to DNA. This demonstrates that he knew Thorn had died in suspicious circumstances.
107 Before it was known that Thorn's wallet had been taken, the accused said Thorn had been killed because he carried large amounts of money on him. On the Saturday night following Thorn's death, the accused was seen gambling with a large amount of money. His cash withdrawals did not support him having this amount of money. Given the accused's knowledge of Thorn's cannabis stash and the presence of the accused's DNA profile on a rock at the stash, site it can be concluded the accused stole the contents of the stash shortly after Thorn's death. The accused has a tendency to take people with whom he has a drug and/or financial involvement to remote locations and threaten to kill them with a gun.
108 The accused has given different accounts of his conversations with Thorn to police and did not tell police of some of those conversations when interviewed. The accused made statements to undercover police which clearly imply that he had committed the murder.
109 As already explained, the Crown asserts that the evidence on each count is cross-admissible. It contends that that the evidence that the accused was the killer on one count is admissible on the issue of whether he was the killer on the other count as both coincidence evidence and tendency evidence. In so arguing, the Crown relies on similarities between the killings.
110 When considering similarities, it must be kept in mind that the fact that some similarities are of no great importance does not mean that they should be entirely disregarded, as the whole of the circumstances of each crime must be considered, Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 536. Another matter that bears on the weight to be given to similarities in the circumstances before me is evidence that crimes of the nature in question are unusual in Tasmania. The more unusual the nature of the crime, the more difficult it may be to dismiss similarities between them as mere coincidences, Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 472.
111 In September 2011, Michael Ashwood, a police officer involved in the investigation of the subject crimes, was directed to establish how many murders had been committed in Tasmania since 1970. Having spent a considerable time considering all available records, he determined that there had been 206 murders or manslaughters in that time. In calculating this figure he relied on crimes reported, and he did not separate multiple murders. For example, he counted the 35 murders committed by Martin Bryant as one murder only. Insofar as he referred to manslaughters, I assume that his calculation pays no regard to charges of what is commonly referred to as motor manslaughter. Of the instances of murder or manslaughter that he identified, 13 occurred in a bush setting and six of them involved a firearm. The perpetrator of three of those six was either a husband, wife or son. The remaining three were the murder of Jarvis, the murder of Thorn and the murder of Tony John Tanner who was shot in a remote area of the Central Highlands on 23 November 1990. Michael Marlow and Shane Kelly were convicted of that murder in 2001. See Marlow and Kelly v R [2001] TASSC 146. I conclude from this evidence that crimes of the nature of the murder of Jarvis and Thorn are rare in Tasmania.
112 Similarities between the crimes that are relied on by the Crown include the following.
113 Similarities that the Crown contends intricately link the accused to the death of each victim include the following.
114 For the evidence on one count that the accused was the perpetrator to be admissible on the issue of whether he was the perpetrator on the other count as either or both coincidence evidence and tendency evidence, it must have significant and probative value, ss97(1)(b) and 98(1)(b). "Probative value" means the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue, s3(1). Insofar as the Crown asserts that the evidence is admissible as coincidence evidence, the probability of the similarities between the killings being explicable on the basis of coincidence is a crucial aspect of the assessment of the probative value of the evidence. Whilst no equivalent statutory requirement with regard to similarities applies in relation to tendency evidence, it is well settled that an important factor in the assessment of whether tendency evidence has a significant probative value is the degree of similarity between the conduct on the occasions relied upon.
115 I have no hesitation in concluding that by reason of the similarities that have been identified, the evidence has significant probative value. Counsel for the accused, Mr Gunson, did not submit otherwise, but relied on the "fall back position [of] prejudice".
117 With respect to prejudice, Mr Gunson relied on a reason for the common law exclusion of similar fact evidence as explained in Pfennig v R (supra), where McHugh J said at 512 - 513 (footnotes omitted):
"But as a matter of policy the law generally excludes evidence of other incidents that reveals the criminal or discreditable propensities of the accused. Various reasons have been put forward to justify this exclusion. One reason is that it creates undue suspicion against the accused and undermines the presumption of innocence. Another is that tribunals of fact, particularly juries, tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct. Similarly, '[c]ommon assumptions about improbability of sequences are often wrong', and when the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association 'is unlikely to be innocent'. Another reason for excluding the evidence is that in many cases the facts of the other misconduct may cause a jury to be biased against the accused."
118 The above passage was quoted with favour in Patel v R [2012] HCA 29, by Heydon J at 164.
"[T]he jury ... like all right thinking members of society, would have a natural dislike and a natural distaste for the sort of crimes with which the accused has been charged. [The jurors]...distaste, or dislike would be significantly enhanced [by] having to deal with two crimes separated by such a long period and we say the evidence is highly prejudicial from one to the other. You have the risk of circular reasoning by a jury, the jury saying, ... because he has done one therefore he has done the other. He has a propensity to murder, it is clear evidence of bad character on behalf of the accused and there's no getting away from that and the joinder would of necessity have to excite feelings of revulsion, intense dislike and disgust well beyond what would be normal in what I could describe as a run of the mill murder case, which might involve an argument between two people, which descends into violence and a weapon was used, or an argument gets completely out of control."
120 The admissibility of the evidence under consideration is to be determined pursuant to the applicable provisions of the Evidence Act, not the policy of the common law referred to in the above cited passage from Pfennig. However, for relevant purposes, the common law position and the position under the applicable provisions of the Evidence Act are much the same. The prejudice is the risk that the evidence will be misused by the jury in an unfair way. The prejudice is not that the evidence tends to establish the Crown case. With regard to the common law see Festa v R (2001) 208 CLR 593, at pars[20] and [51]. With regard to the provisions of the Evidence Act see R v BD (1997) 94 A Crim R 131 at 139 and 151, Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at par[91], and KMJ v Tasmania [2011] TASCCA 7 at par[36].
121 The above cited passage from Pfennig draws attention to what has been accepted to be aspects of the sort of prejudice that is relevant. I accept that sentiments along the lines referred to may be engendered in jurors hearing the charges against the accused. Nonetheless, I have no hesitation in concluding that appropriate directions can guard against jurors unfairly misusing the evidence adversely to the accused. The law relies on the integrity and sense of duty of jurors, and the experience of courts is that this reliance is not misplaced, R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 614.
122 Consistent with this reliance on the integrity of jurors, trials regularly proceed against two or more accused in circumstances where the evidence against one accused is inadmissible against another accused but potentially prejudicial to that other accused. An example of this arises when a police interview with one accused (which is not admissible against another accused) contains assertions against the interests of another accused. Trials of this nature regularly proceed so long as the court is satisfied that the potential prejudice to the other accused can be averted by an appropriate direction, Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 pars[25] - [32], Marlow and Kelly v R (supra) pars[65] - [69], Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 79 - 80, and Leaman v R (1987) 28 A Crim R 104 at 108 - 109.
123 Again, consistent with this reliance on the integrity and sense of duty of jurors, on the trial of a sole accused evidence is commonly admitted for a limited purpose, in which case the jurors are instructed on that purpose and directed not to impermissibly use the evidence against the accused. Some examples of this are given in Owen v R [2001] TASSC 79 par[8].
124 If the counts under consideration were severed, the evidence on the trial of the accused on either count would inevitably involve evidence that puts him in a very poor light, and this includes the (for present purposes unchallenged) evidence of Zammit, McNally and Avery to the effect that the accused has a tendency to take people with whom he has a drug association, and from whom he has borrowed money, to remote bush areas and either shoot them or threaten to shoot them with a gun and steal money from them. So even if the indictment was severed, the trial of the accused on either count would proceed in the expectation that the jurors would heed appropriate directions about putting aside their emotions and not misusing aspects of the evidence. Plainly enough, if the evidence on each count is cross-admissible, the weight and quantity of the evidence that may incline jurors to act on their emotions and misuse evidence is considerably increased. Nonetheless, I am in no doubt that, subject to appropriate directions to the jurors on the use of the cross-admissible evidence, its probative value substantially outweighs any prejudicial effect it might have on the accused.
125 Being satisfied that the evidence on each count is cross-admissible and that its probative value substantially outweighs any prejudicial effect it might have, for the purposes of the Code s326(3), I am also satisfied that the accused will not be prejudiced or embarrassed in the relevant sense by reason of both counts being included in the same indictment. I observe that it having been established that the evidence is cross-admissible, no purpose is served by severing the indictment, as the evidence on both charges is admissible on the trial on either one of them.
Do the charges form part of a series of crimes of the same or similar character?
126 I return to the first basis upon which Mr Gunson submitted that the indictment should be severed, which is that the inclusion of two counts in the indictment contravenes the Code, s311(2), as the counts do not form part of a series of crimes of the same or similar character. That provision relevantly provides as follows:
"(2) ... charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character."
127 Section 311(2) was directly addressed in Packett v R [1937] HCA 53; (1937) 58 CLR 190. However the two charges of murder that were the subject of the indictment under consideration in that case were committed contemporaneously in the course of the same incident, and the evidence adduced on the trial was admissible on either count. It being beyond question that the charges were linked in the way required by s311(2), no attention was given to the meaning of this provision, save for an observation of Dixon J, at 207, that: "The word 'series' is somewhat vague but it connotes some connection between the crimes".
128 Section 311(2) is based on the Indictment Act 1915 (UK), Sch1, r3, which provides that charges "may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character". Provisions in much the same terms are: the Criminal Law Consolidation Act 1935 (SA), s278(1), the Criminal Code 1913 (WA), s585 (now repealed), the Criminal Procedure Act 2004 (WA), cl 7(3)(a) of Sch1, and the Criminal Code 1899 (Qld), s567(2). These provisions have been the subject of many authoritative decisions.
129 For present purposes it is sufficient to say that with regard to provisions in these terms it is very well established that:
130 In Cranston at 164, Macrossan J, agreed with by McPherson and de Jersey JJ, said of the requirement as to nexus:
"It seems clear that the requirement that nexus should exist is an additional requirement upon the requirement of 'similar character' and, however imprecise they may be, these words call for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present."
131 In Zammit at par[28], Steytler P, agreed with by Wheeler and Pullin JJA, quoted the gist of the above passage with favour.
132 Although Mr Gunson provided the Court with a number of dictionary definitions of the word "series", he did not go so far as to contend that the law was other than that for the purposes of s311(2), a series could be constituted by two offences. He did however place some reliance on the last sentence in the following passage from De Jesus at 15 where Dawson J said with regard to the then Criminal Code (WA), s585:
"Similarity may also indicate a nexus, but similarity of that kind relates to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s 585 - 'a series of offences of the same or a similar character' - is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow at 39 that: 'Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.' Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a 'series' without straining the word beyond the meaning which it is reasonably capable of bearing."
133 Having focused on the last sentence in the above passage, Mr Gunson contended that as the offences in question were committed 14 years apart, to describe them as a "series" would strain the meaning of that word beyond the meaning it is reasonably capable of bearing. I do not agree. Whilst I accept that temporal considerations are an aspect of the determination of whether the requirements of s311(2) have been satisfied, I do not accept that a gap of 14 years' duration is a decisive factor. In my experience, it is not uncommon for there to be extended periods between the commission of sexual offences that are the subject of more than one charge on the same indictment. I note that in Tasmania v S [2004] TASSC 84, the gap between the commission of the two charges of maintaining a sexual relationship with a young person under the age of 17 that were the subject of an application for severance in that case varied from 11 years to 21 years. When all relevant considerations are taken into account, I have no hesitation in concluding that the requirements of s311(2) have been satisfied. This is particularly so as the evidence on each count is cross-admissible.
134 The application to sever the indictment is dismissed.
Tasmania
Standage [2012] TASSC 88
(1999) 196 CLR 297
(1992) 173 CLR 592
(2006) 32 WAR 81
(1994) 181 CLR 41
(1973) 5 SASR 256
(1984) 152 CLR 528
(1986) 68 ALR 1
(1995) 182 CLR 461
(2001) 208 CLR 593
(1937) 58 CLR 190
(2007) 34 WAR 302