Winning v The Queen [2003] WASCA 245

Winning v The Queen [2003] WASCA 245 - WASCA 2003 case summary — Zoe

[69]

"Yes. Mr Foreman, just so that we can narrow the issues a little in this case, his Honour afforded me the unusual opportunity of being able to put what the accused says in relation to this matter so that in essence you are not distracted by something that is not a real issue for you in the case. The accused's position in this trial is that no issue is taken with the fact that the deceased Howard Lister was unlawfully killed at the time and at the place alleged by the crown. The accused's position, however, is that the deceased was murdered by Kevin Avis.

The circumstances relating to the murder, the accused will say, are precisely as he told the police in a video record of interview on 14 October. The accused will admit that he had initially, together with Avis, resolved to tell the police a misleading story about the events in question but that he had a change of heart at around 5 pm on 14 October after speaking to his lawyer and thereafter told the complete truth about the matters in question and assisted the police fully in their investigations.

He will, frankly, concede that he assisted Avis in the clean-up of the murder scene and in the disposal of the deceased's body and the deceased's motor vehicle. He will also admit that he made certain misleading statements to various parties at around that time. In the circumstances he concedes from the outset that he must be convicted of being an accessory after the fact to the killing of Lister, and his Honour will explain that to you in due course.

What he says, however, is that he was not the principal offender in Mr Lister's death - that is, he wasn't the person who stabbed Lister - nor will he say did he assist or aid Lister (sic) in any respect in the commission of the offence. From Mr Winning's perspective the central issue for resolution by you in this case is whether you could be satisfied beyond a reasonable doubt that he was responsible for the death of Howard Lister either as the person who inflicted the fatal injuries or as a person who aided or assisted the person who did."

[173]

"PERCY, MR: Just a couple of matters, your Honour. I'm not sure whether your Honour just said in the last little bit that if they weren't satisfied that he was an accessory after the fact to manslaughter they would convict him of being an accessory after the fact to wilful murder.

McKECHNIE, J: I can call them back and give them the full accessory direction but in the circumstances there is evidence that Avis has been convicted of wilful murder and in the circumstances that is prima facie evidence of the offence which he aids. He couldn't, for instance, be convicted of accessory after the fact to wilful murder if Avis had been convicted of manslaughter. The offence is an indictable offence. The punishment depends on what offence he is an accessory to. I had thought that the admission made was an admission of accessory after the fact to wilful murder.

PERCY, MR: No. It was accessory after the fact to whatever offence they might have thought he was intending to assist or conceal so we would say ---

McKECHNIE, J: I don't think that's the law, is it? It's accessory after the fact to whatever offence occurred in law. Unlike the aiding where you can only aid to the extent of your knowledge of the commission of the offence, an accessory is an accessory if they knowingly do acts which aid afterwards whatever the actual offence was, and the actual offence here was wilful murder.

PERCY, MR: We would say at a separate trial it's open for the jury to bring in a verdict of accessory after the fact to whatever they find to be established on the facts of this trial and that they wouldn't be bound by any previous decision of another court.

...

PERCY, MR: Your Honour's view, if I understand it, is that once he is convicted of wilful murder then there are no alternatives. That's an absolute situation. Once he assists and becomes an accessory after the fact it's to wilful murder and nothing else.

McKECHNIE, J: Yes.

PERCY, MR: My respectful position is that it is open for them to bring in verdicts as accessory to murder or manslaughter and that that is a realistic possibility in the circumstances of this case."

[264]

"You blamed him for everything didn't you?---Mm. Go on.

Yes or no?---Well, it depends, doesn't it?

Everything that led you into the position that you now find yourself in, it's all Mark's fault?---I would blame him for that, yes.

And your business problems as well?---Yes, some.

Did you think he was jealous of you?---Yes, insanely.

Insanely?---He admitted it.

Insanely jealous of you?---Mm.

You told the police this, didn't you, that he was jealous of you and they asked what he was jealous of and your answer was, 'I've got a family, a house, two dogs, cars, you know.' Is that what Mark was jealous of?---Yes.

They asked you, 'What's he got?' Do you remember what your answer was?---Nothing.

You said, 'Jack shit'?---Yeah.

Is that how you saw Mark, a person who had jack shit?---He also had (indistinct) a caravan.

He had a daughter, didn't he?---But he's not allowed to see her.

He was, wasn't he? You knew he saw her?---He had six cases with the child abuse, you know. They would've recorded his name. He is not allowed to see his daughter unless he has a parent or guidance

You know that's a lie---I know it's true. I've been there.

You know it's a lie?---I've seen it.

You were asked by the police, 'But look what he's done to you,' and you said, 'Yes. Now, I've got jack shit. God, he must be happy'?---And I'm sure he is.

Is that right?---Yes.

It's really the case, isn't it, that you're attempting to cast as much mud on Mr Winning as you possibly can here in front of the jury as well?---That's what the whole idea of today is.

Is that right? Is that what you're trying to do?---No, but that's what the idea is, isn't it?

Wild assertions about him having some problem with sexual abuse or something like that?---Yes.

Did you go back to Casuarina last night in the same van as Mr Winning?---Yes.

Same van; you could speak to each other?---Yeah. He threatened me and threatened my family, yes.

He didn't, did he? He called you a dog?---Yeah.

Didn't you say to him, 'I wouldn't be putting you in, Mark, if it hadn't been your idea to go to the police in the first place. I would've got away with this'?---The hell I said that.

Didn't you say that?---No, I didn't; no, I didn't.

Didn't you also say that you would spread false rumours about him being some sort of sexual pervert at Casuarina if you went there?---No. I didn't say that.

Didn't you say that to him last night?---No, no. He called me a dog several times. He threatened my family last night, my children. He's lucky there's a wall between us.

Yes, I bet he is?---Mm.

Because you wouldn't have any difficulty dealing with him, would you?---If it comes to my family.

The same way as you dealt with Lister?---No, not at all. I didn't know Lister; never hurt me.

You see, you're at some pains to paint Mark as the leader, the sort of leader in everything that you did, didn't you? Page 199 after you really started to tell the police the story about Mark being the perpetrator ...

That was your aim, wasn't it, to paint him out as the person who made all the decisions?---I just told it how I saw it.

You were just a poor little follower, doing everything; Mark Winning says this and you jumped. I suggest to you that's not you at all, is it? You're the boss. You don't do anything you don't want to do, do you, Mr Avis?---Now you're reversing the role.

You blamed Mark, didn't you, for choosing the location where the body would be disposed of?---Yep.

You blamed him for suggesting that the hole be dug, or was that a joint enterprise?---He decided to stop. He was in front of me.

Whose idea was it to dig the hole?---Then I stopped. He said, 'We'll dig a hole here.'

Dig a hole; so that was his idea as well?---Yes. See, I was following him in the car behind.

You tried to project yourself to the police as someone who was pathetically gullible, didn't you?---I - as I said earlier, I can be.

You can be?---Mm'hm.

But didn't you come to your senses halfway through this, that you were in trouble and you should have seized the initiative, gone to the police, rang the police?---I didn't trust him.

Didn't trust him?---No...

Because he was going to be next, wasn't he? He was going to be the next after Lister if he did anything wrong?---No.

And you told him that, didn't you?---No.

Is that your story, is it your version of events, that you were incredibly scared of Mark Winning, were you?---At the time.

At the time?---Yes.

What, this big, slow, oafish-looking fellow?---And butter wouldn't melt in his mouth.

Yes; never hurt a flea, would he?---Of course not.

No?---It's like the person next door who'd never hurt anyone.

That's right?---Yeah. There's a lot you don't know about your client.

That's right?---Yeah." (my emphasis)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (357 paragraphs)

Winning v The Queen [2003] WASCA 245 (13 October 2003)

Conclusion as to the second ground of appeal

Parties

Legislation Cited (1)

Cases Cited (18)