FEDERAL COURT OF AUSTRALIA
Conway v The Queen [2000] FCA 461
Criminal Law - murder - appeal against conviction - admissibility of evidence - evidence of relationship - whether evidence constituted propensity evidence that should have been excluded - meaning and scope of “propensity evidence” - whether evidence of oral representation by the deceased that the accused administered a drug to her some days before her murder is admissible as an exception to the hearsay rule - whether deceased’s oral statements made shortly after the asserted fact - whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication - whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable - whether similar representation recorded by the deceased in her diary is admissible as an exception to the hearsay rule - whether directions to the jury on the use of relationship evidence adequate.
Criminal Law - murder - appeal against conviction - accomplices - warning - need for under ss 164 and 165 of the Evidence Act 1995 (Cth) - whether adequate warning given in the circumstances of the case - whether items of evidence identified by the trial judge were capable of corroborating the evidence of the accomplices - whether incorrect identification led to miscarriage of justice.
Criminal Law - murder - appeal against conviction - whether sufficient direction on
co-conspirator rule - whether trial judge’s intervention during cross-examination of
co-accused caused trial to miscarry - whether evidence of an out of court statement by a
co-accused wrongly rejected - whether proper directions given on evidence of good character - whether question arose as to an accused’s fitness to stand trial - whether trial judge failed to properly direct on accused’s failure to recall certain events - whether trial judge failed to adequately put the defence case of one accused to the jury.
Evidence Act 1995 (Cth), ss 43, 44, 59, 60, 65, 66, 72, 97, 98, 101, 110, 136, 137,164, 165
Law and Justice Legislation Amendment Act 1999 (Cth), s 13
Crimes Act 1900 (ACT), ss 345, 428E
Mental Health (Treatment and Care) Act 1994 (ACT), s 68
Harriman v The Queen (1989) 167 CLR 590 cited
Pfennig v The Queen (1995) 182 CLR 461 considered
Hoch v The Queen (1988) 165 CLR referred to
S v The Queen (1989) 168 CLR 266 referred to
Gipp v The Queen (1998) 194 CLR 106 discussed
Wilson v The Queen (1970) 123 CLR 334 cited
R v Bond [1907] 2 KB 389 cited
O’Leary v The King (1946) 73 CLR 566 discussed
Martin v Osborne (1936) 55 CLR 367 referred to
R v Tsingopoulos [1964] VR 676 discussed
R v Frawley (1993) 69 A Crim R 208 referred to
B v The Queen (1992) 175 CLR 599 cited
R v Lock (1997) 91 A Crim R 356 discussed
Subramaniam v Public Prosecutor [1956] 1 WLR 965 referred to
Ratten v The Queen [1972] AC 378 referred to
R v Blastland [1986] AC 41 referred to
Walton v The Queen (1989) 166 CLR 283 referred to
R v Bedingfield (1879) 14 Cox CC 341 considered
Vocisano v Vocisano (1974) 130 CLR 267 referred to
R v Mankotia [1998] NSWSC 295 applied
R v Polkinghorne [1999] NSWSC 704 applied
Pollitt v The Queen (1992) 174 CLR 558 considered
Bannon v The Queen (1995) 185 CLR 1 applied
BRS v The Queen (1997) 191 CLR 275 referred to
Shepherd v The Queen (1990) 170 CLR 573 applied
Edwards v The Queen (1993) 178 CLR 193 cited
Davies v Director of Public Prosecutions [1954] AC 378 referred to
Lane v The Queen (1996) 66 FCR 144 applied
R v Kendrick [1997] 2 VR 699 distinguished
R v Baskerville [1916] 2 KB 658 cited
Ridley v Whipp (1916) 22 CLR 381 referred to
R v Kerim [1988] 1 Qd R 426 referred to
R v Kalajzich (1989) 39 A Crim R 415 referred to
Doney v The Queen (1990) 171 CLR 207 referred to
R v Pisano [1997] 2 VR 342 referred to
R v Lewis [1998] NSWSC 408 cited
R v Bui (unreported, New South Wales Court of Criminal Appeal, 5 December 1996) referred to
R v Spedding (unreported, New South Wales Court of Criminal Appeal, 11 December 1997) referred to
R v Abdallah [1999] NSWCCA 380 referred to
R v Teitler [1959] VR 321 applied
Mraz v The Queen (1955) 93 CLR 493 applied
Stokes v The Queen (1960) 105 CLR 279 cited
Duff v R (1979) 28 ALR 663 applied
Wilde v The Queen (1988) 164 CLR 365 referred to
Glennon v The Queen (1994) 179 CLR 1 referred to
R v Checconi (1988) 34 A Crim R 160 cited
Ahern v The Queen (1988) 165 CLR 87 considered
R v Pektas [1989] VR 239 referred to
R v Masters (1992) 26 NSWLR 450 referred to
Tripodi v The Queen (1961) 104 CLR 1 cited
R v Jackson (1987) 11 NSWLR 318 applied
Osland v The Queen (1998) 159 ALR 170 referred to
R v Vrany (1979) 46 CCC (2d) 14 cited
R v Baron (1976) 31 CCC (2d) 525 cited
R v Esposito (1998) 45 NSWLR 442 considered
R v Lars (1994) 73 A Crim R 91 considered
R v Mawson [1967] VR 205 cited
Jones v National Coal Board [1957] 2 QB 55 referred to
Re JRL : Ex parte CJL (1986) 161 CLR 342 cited
R v Stalder (1981) 2 NSWLR 9 applied
R v Hamilton(1993) 68 A Crim R 298 referred to
Kesavarajah v The Queen (1994) 181 CLR 230 considered
Sinclair v The King (1946) 73 CLR 316 applied
Webb v The Queen (1994) 181 CLR 41 distinguished
R v Hall (1988) 36 A Crim R 368 considered
Russell v His Majesty’s Advocate (1946) SC(J) 37 distinguished
R v Veverka [1978] 1 NSWLR 478 referred to
Cleland v The Queen (1982) 151 CLR 1 cited
Matters No. AG 55, and AG 64 of 1998
KATHY MARIE McFIE v THE QUEEN and JOHN TERENCE CONWAY v THE QUEEN
JUDGES: MILES, von DOUSSA & WEINBERG JJ
PLACE: CANBERRA
DATE: 11 APRIL 2000
| IN THE FEDERAL COURT OF AUSTRALIA |
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| DISTRICT REGISTRY |
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On appeal from the Supreme Court of the Australian Capital Territory
| Matter No. AG 64 of 1998 BETWEEN: |
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| JOHN TERENCE CONWAY Appellant
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| AND: | THE QUEEN Respondent |
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| Matter No. AG 55 of 1998 BETWEEN: |
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| KATHY MARIE McFIE Appellant (by “cross appeal”) |
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| AND: |
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| THE QUEEN Respondent (by “cross appeal”) |
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| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS:
1. That in Matter No. AG 64 of 1998 the appeal against conviction by John Terence Conway is dismissed.
2. That in Matter No. AG 58 of 1998 the appeal against conviction by Kathy Marie McFie is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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| DISTRICT REGISTRY |
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On appeal from the Supreme Court of the Australian Capital Territory
| Matter No. AG 64 of 1998 |
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| BETWEEN: | JOHN TERENCE CONWAY Appellant |
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| AND: | THE QUEEN Respondent |
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| Matter No. AG 55 of 1998 |
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| BETWEEN: | KATHY MARIE McFIE Appellant (by “cross appeal”) |
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| AND: | THE QUEEN Respondent (by “cross appeal”) |
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| JUDGES: | |
| DATE: | |
| PLACE: |
REASONS FOR JUDGMENT
THE COURT:
| Subject Paragraph |
| Introduction......................................................................................................................... 1 |
| Background facts................................................................................................................ 7 |
| The evidence of the accomplices.............................................................................. 26 |
| The Heldon tapes – exhibit 64.................................................................................. 53 |
| The coffee incident................................................................................................... 58 |
| Corroboration evidence 65 |
| Conway’s appeal against conviction................................................................................... 68 |
| Consideration of the coffee incident.......................................................................... 71 |
| (a) The coffee incident as propensity evidence............................................. 74 |
| (b) The coffee incident as hearsay............................................................. 108 |
| (c) The diary entry as hearsay................................................................... 149 |
| (d) The trial judge’s directions concerning the coffee incident..................... 158 |
| The Heldon tapes and other “relationship evidence”................................................ 172 |
| The accomplice warning188 |
| The directions regarding corroboration................................................................... 210 |
| The co-conspirator rule …………………………………………………………244 |
| The trial judge’s interventions in the cross-examination of McFie............................. 262 |
| McFie’s appeal against conviction.................................................................................... 277 |
| The rejection of evidence of Lauren Taylor............................................................. 279 |
| The directions as to character................................................................................. 285 |
| Fitness to stand trial............................................................................................... 291 |
| Contamination of the jury....................................................................................... 304 |
| The direction as to loss of memory......................................................................... 308 |
| Failure to put defence case..................................................................................... 312 |
| Conclusions..................................................................................................................... 317 |
1 These reasons concern appeals arising out of the convictions of John Terence Conway (Conway) and Kathy Marie McFie (McFie) for the murder of Ulrike Conway (the deceased) at Canberra on or about 3 May 1997, following a trial before a judge and jury. The appeal against conviction by McFie was instituted by her filing a “notice of cross appeal” in an appeal instituted by the Crown against the sentence imposed on her.
2 The appeals against conviction by Conway and McFie were argued before this Court at the same time as the Crown appeal against McFie’s sentence, and appeals against sentence instituted by Conway, Barry Steer (Steer) and Daniel Scott Williams (Williams). Steer and Williams had pleaded guilty to the murder of the deceased, and been sentenced before the trial of Conway and McFie.
3 The members of the Court are agreed as to disposition of the appeals against conviction, but are divided as to the disposition of one of the appeals against sentence. For this reason the Court proposes to deliver joint reasons for judgment on the two appeals against conviction, and separate reasons for judgment on the four appeals against sentence.
4 Steer and Williams confessed to having carried out the murder by entering the deceased’s home late at night and administering fatal injections of heroin to the deceased. They told the police that they had done so at the request of Conway and McFie, for an agreed fee of $15,000, part only of which had been paid at the time of the murder. Conway was at the time a serving officer in the Australian Federal Police (AFP). The deceased was his estranged wife. Conway and McFie were lovers. Steer and Williams were sentenced by Crispin J on 16 October 1997. Each received a determinate sentence of eighteen years with a non-parole period of twelve years. His Honour indicated that but for the cooperation provided and promised to the authorities by Steer and Williams, he would have imposed in each case a sentence of twenty-seven years with a non-parole period of eighteen years. Steer and Williams promised to cooperate by giving evidence against Conway and McFie in accordance with recorded interviews with the police given in August 1997.
5 Conway and McFie pleaded not guilty. After a trial before Gallop J and jury lasting seven weeks, Conway and McFie were found guilty. Conway was sentenced to imprisonment for twenty-four years with a non-parole period of eighteen years, and McFie was sentenced to imprisonment for twenty years with a non-parole period of twelve years. At trial some one hundred and three witnesses gave evidence. Steer and Williams gave evidence for the Crown. Conway and McFie each gave evidence in their own defence denying any involvement in the murder. Late in the trial, in the cross-examination of McFie by counsel for Conway the proposition was put to her that she alone had struck a contract with Steer and Williams to murder the deceased, and McFie denied it.
6 The grounds of appeal against conviction by Conway and McFie include issues as to the admissibility of evidence (including on the ground of relevance), the admission of evidence said to be unfairly prejudicial to the accused, and the directions of the trial judge about the evidence of accomplices and corroboration. To understand the grounds of appeal it is necessary to refer to the evidence in some detail.
Background facts
7 The following background facts established by evidence at the trial were not disputed. Conway and the deceased met in 1986, and not long after that Conway moved into the deceased’s home at 35 Gollan Street, Evatt, in the Australian Capital Territory. That was the house in which the murder was to take place. They were married on 3 August 1991, and had one child, Alexander, who was aged seven at the time of the deceased’s death.
8 Conway worked in the traffic division of the AFP. He met McFie in the course of his police duties in July 1996 when he stopped her car and spoke to her about excessive smoke emanating from the vehicle. Conway gave her his mobile phone number and invited her to contact him when she found a replacement motor for her car. He offered to assess the mechanical condition of the replacement and to find out whether it was stolen. McFie telephoned him a couple of days later and spoke to him about a motor. They met shortly afterwards and became friends. Some six weeks later Conway told her about his wife “Ricky” and son. In August 1996 Conway and McFie commenced an intimate sexual relationship which continued thereafter. Not long afterwards the deceased telephoned McFie. It seems she dialled a number she found on Conway’s mobile phone, to identify whose number it was. The deceased introduced herself as Conway’s wife, and informed McFie that Conway had moved back into the marital home. The two maintained constant telephone contact for the next four months. On 31 December 1996 McFie met the deceased at 35 Gollan Street. She had spoken with the deceased many times on the telephone before they actually met, and the deceased invited McFie to visit her at her house. McFie became a regular visitor thereafter at the house, and the deceased would ring her nearly every day. McFie, in her evidence, said that she observed that Conway’s matrimonial relationship was unstable, and said that Conway had also told her that. In a statement to the police given on 11 June 1997 McFie said that Conway had told her that there were problems in the marriage due to the deceased’s alcohol problems, and that the deceased was aggressive towards Alexander.
9 The relationship between Conway and McFie developed into a close one, unbeknown to the deceased. McFie’s evidence indicated that by mid-February 1997 she had become committed to Conway, and was willing to do anything for his benefit. She said in evidence that she hoped to marry him. At the time of the murder, Conway was aged 42 and McFie 41 years.
10 Steer and Williams were younger. Williams was aged 21 and Steer 29.Steer, Williams and McFie lived in the Stuart Flats, Griffith, in the Australian Capital Territory. McFie and Steer lived in one block occupying Flats 2 and 6 respectively, and Williams lived in a block of flats opposite to them. Williams moved into the flats approximately four years before the murder, and met McFie about two months thereafter.
11 Williams was unemployed, and derived income from unemployment benefits and selling heroin packages. He was a heroin addict at the time of the murder and had been for some three or four years. He described his habit as being “one of the biggest on the street”, using a gram and a half of heroin every day. At one stage Williams’ mother, through whom McFie met him, was living with Williams in the flats. McFie would visit Williams in his flat and vice versa.
12 Williams met Steer when Steer moved into the flats in February 1997. Steer was not a user of heroin but had a substantial cannabis habit. He was also unemployed, in receipt of a pension for a longstanding scoliosis condition. Steer and Williams gave evidence that they became good friends, and in the words of Williams, they were “as thick as thieves”. They had daily contact, would go into Civic together to talk to people and “to score”. In April 1997 both Steer and Williams were subject to periodic detention orders.
13 Steer and McFie met shortly after Steer moved into the flats. About two weeks after Steer met McFie, he saw her in the company of Conway at the flats, and McFie later introduced Steer to Conway. Steer gave evidence that he saw Conway frequently at the flats, either driving an accident investigation police vehicle, McFie’s Sigma, or a white four-wheel drive vehicle (which Conway owned). By March 1997 Steer was discussing with McFie and Conway his (Steer’s) four year old son who lived with Steer’s estranged wife. He discussed with them his proceedings in the Family Court over access, which proceedings led in April 1997 to Steer being granted an order for limited access.
14 The undisputed evidence was that Conway’s relationship with the deceased had been an unhappy one for a considerable time. The police had been contacted on a number of occasions to attend 35 Gollan Street to intervene in disputes. These calls had been made to the police by various people including the deceased herself.
15 In 1996 Conway left his wife, but returned to 35 Gollan Street soon after the sexual relationship with McFie had commenced. On 11 March 1997 Conway again moved out of 35 Gollan Street. Over the ensuing weeks he visited the home most days to see Alexander. He told the police on 7 May 1997 that Alexander and the deceased were arguing a lot and more conflict arose between Conway and the deceased. On 2 April 1997 an argument developed between the deceased and Alexander, which led to physical contact between them. Conway intervened and told the deceased he was taking Alexander as he considered Alexander would be better off with him. Conway took Alexander to McFie’s parents home where he and Alexander lived with McFie.
16 Conway lodged a domestic violence order application on behalf of Alexander against the deceased, and an interim order was made. That order was served on the deceased on 4 April 1997. Conway also lodged a Family Court application returnable on 14 April 1997. That application was heard on 23 April 1997 by the Family Court. The deceased was represented at the hearing by a solicitor. An interim order awarding custody of Alexander to the deceased was made. Alexander returned to live with the deceased that day. Conway was given what he referred to in evidence as “visiting rights” on weekends. He was very upset with the ruling by the Family Court. Steer gave evidence that in one of his discussions with Conway, Conway told him that he did not think he received a fair hearing or was really listened to. Steer described Conway as being “disgruntled”.
17 On 3 April 1997 the deceased lodged a complaint with the AFP against Conway accusing him of assaulting her during the events of the evening of 2 April 1997, but she withdrew the complaint on 7 April 1997, telling the investigating officer that she did so as she thought it would improve her prospects of gaining access to Alexander.
18 When Alexander returned to live with the deceased, Conway moved into McFie’s flat. On 25 April 1997 Conway spent at least most of the day at 35 Gollan Street with the deceased and Alexander, and an incident, referred to during this appeal as “the coffee incident” occurred. That incident is not common ground, and is discussed below.
19 Evidence from a number of sources indicated that the deceased was extremely depressed about Alexander and the breakdown of her marriage during Saturday 3 May 1997. Alexander had been collected by Conway for weekend access on the afternoon of Friday 2 May 1997. A transcript of messages recorded at Conway’s mobile phone message bank on 3 May 1997 disclosed that at 3.28pm the deceased left a message for Conway as follows:
“I know you never sort of answer your messages, but I hope to God you get this one. You’ve won him, you can have him, you and Kathy can have him, I’ll be dead tomorrow. I’ve had enough (crying). I’ve had enough John, I’m not going to let you put me through this any more. Bye, I love you.”
At 3.39pm the deceased left another message:
“John, I would’ve liked to have spoken to you in person. Unfortunately, it’s impossible. I just want you to know (crying) even though all that you’ve done, I still love you, and always will, and I’ll take that up to heaven with me. Thank you. Bye.”
20 At 3.44pm there was yet another message:
“Hi honey. I call you honey because it’s the last time I’m talking to you. Um, I’m going to join Dad, I can’t um, live like this any more.”
21 Conway provided these messages to the police in the course of their inquiries shortly after the murder, but omitted to inform them that the deceased had also left messages on his voice-mail at work threatening him with trouble. Conway claimed that he had forgotten about them.
22 There was also evidence that at 4.30pm the deceased went to the house of her next door neighbour, Mrs Noordhof, and spoke to her student son, Quentin. She asked for a rope saying she wanted to hang herself, and on being told that there was no rope, she asked for a tie which Quentin gave her. Quentin was alarmed and enlisted the aid of another neighbour, Chris Bell. They went to 35 Gollan Street but received no answer to their knocking at the door. Quentin went to the home of other neighbours, Mr and Mrs Dillon. Mr Dillon rang the police, and Mrs Dillon and her son Craig went to 35 Gollan Street. This time the deceased answered the door. She replied “Go away. Can’t a person die in peace”. As a result of the communication with the police, a mobile patrol arrived at 35 Gollan Street, and were admitted to the house by Mrs Dillon. The deceased was sitting at a dining room table, very distressed. She was crying. She said there was no need for the police to be there. She told the police officer she was upset that her marriage to Conway had failed and was depressed about Conway’s relationship with another woman. A short time later a mental health crisis team arrived, and remained from about 5.35pm to 6.40pm. The crisis team found the deceased to be pleasant and cooperative. She said she did not think their presence was necessary. Before the team left, she informed them that she had no plans or thoughts about harming herself, and that the “crisis had passed”. However, during their discussions she informed them that she had earlier weight tested a rope fixed to a light fitting with a view to hanging herself, but the rope had pulled away. She had not persisted. She said she had coiled up the rope and put it in a cupboard. The police never found this rope. The deceased also told the crisis team about the domestic violence within her marriage, that the police had attended her residence on a number of occasions over the previous two months because of domestic violence. She told them that her husband and McFie were having a relationship. She said that she had formed a friendly relationship with McFie and had phoned her a number of times and spoken to her at length about her marriage.
23 On the afternoon of 3 May 1997 Conway was rostered to begin work at 4.00pm. In evidence he said that he began mobile patrol just before 5.00pm, and shortly thereafter heard on the police radio that there was a “check welfare” at 35 Gollan Street. He went to the Woden Police Station to check the computer to find out about that call. The Crown led evidence that AFP records indicated that Conway accessed the computer at Woden at 5.05pm and ascertained that Sergeant Sly had attended 35 Gollan Street. Conway went to the Belconnen Police Station and waited there to speak with Sergeant Sly, which he did at about 6.20pm, and was told briefly of the events at 35 Gollan Street. Sergeant Sly reported on the deceased’s depressed state and of her threatening to commit suicide. Conway said in evidence that he told Sergeant Sly that he did not consider the matter serious, and that her conduct “was probably just another attention seeking exercise”.
24 Evidence from a pathologist, and a toxicology report, established that the deceased died from a massive overdose of heroin administered by injection in the inner side of the left elbow. The pathologist found no other evidence of injection or intravenous administration of drugs. The deceased’s body was found in her bed late in the afternoon of Sunday 4 May 1997 after family members and her neighbours had been unable to make contact with her during the day. There was no evidence at the scene to suggest that the deceased had committed suicide, and suicide was not advanced as a possibility by the defence at trial. There was also no evidence of forced entry to the house.
25 It is against this factual background that the evidence disputed by Conway and McFie at trial, and the matters now the subject of appeal, fall to be assessed.
The evidence of the accomplices
26 Williams in his evidence-in-chief spoke of his acquaintanceship over three or four years with McFie at the flats. He said McFie was aware of his drug addiction. He frequently borrowed small sums of money from her to satisfy his habit, and he always paid her back. He said that he was introduced to Conway by McFie about six weeks before the murder, and had seen him on a few occasions after their first meeting. He described an occasion about three weeks before the murder when McFie had spoken to him about bicentenary number plates on the back of a yellow Sigma, which plates Williams agreed to give to McFie because McFie said Conway was a collector of number plates. Steer and Williams went to the vehicle which was parked at the flats, and removed the plates. Steer left, and Williams and McFie returned with the plates to McFie’s flat. McFie said to him that Conway wanted to talk to him saying “it’s rather important”. Williams inquired why and McFie said she could not say anything. Once inside McFie’s flat, McFie went off to Alexander in a bedroom leaving Williams and Conway together. Conway confirmed that he wished to speak with Williams. Williams’ evidence continued:
“A few things started getting said, then it started coming up, ‘Well I want something done about my missus’. I said, ‘Yes like what?’ and he goes, ‘Well I want her to be knocked’. ‘Yes, really, you’re kidding us’. Me saying that. ‘Well alright, I’ll see what I can do. Yes, not a problem, yes, yes alright’. I’ve left. I’m spun out about it. I’ve gone home, I’ve grabbed a couple of bottles.”
Williams said he “had a couple of cones” and went to Steer’s flat, reporting his conversation with Conway.
27 About three days later Williams met McFie and Conway whilst Conway was lifting boxes up to McFie on her balcony. On that occasion Conway said to him “keep it to myself. If you’re going to speak to somebody, make sure it’s the person who will be able to do it”. Conway also said “I’ll need it done soon”. Williams gave evidence that in the next day or two there was a further conversation at which both Conway and McFie were present when the question of money was discussed, and Williams nominated a figure of $15,000. At some point in the discussions, the timing of which Williams could not specify, Conway said to him that he wanted it to look like an overdose of heroin given by needle.
28 The day after the sum of $15,000 was mentioned Williams said a further conversation occurred in McFie’s flat between him, Conway and McFie. McFie said they had the money and “it has to be done by this Saturday”. Williams protested that he had not organised it and he would be at the detention centre. McFie said:
“No, you had better hurry up because this is the perfect time to do it. Like the eldest son, he’s going to the coast. Alexander’s going to be here and I’m going to be babysitting. John’s going to be at the police station, that’s his alibi.”
29 On Saturday 3 May 1997 Williams was at the detention centre but was “breached” at lunchtime as he had trashed his cell. He was discharged and walked back to the flats. He was met by McFie who said “it’s got to be done tonight”. Williams again said that he had not made arrangements. McFie asked “have you got the heroin for her”. Williams said he had not. McFie said “I’ll have to get some”. She then showed Williams $3,000 in cash. Williams explained that he would have to buy heroin, and prepare it. McFie offered to drive him to a supplier, and did so. Williams says he and McFie drove to Eaglehawk Caravan Park. (Evidence was given by the witness Roman Ulanowicz, an acquaintance of Williams, that he accompanied them on this trip). At the Caravan Park, McFie produced a further $500 with which Williams “scored two halves” for $450, and pocketed the other $50.
30 Williams gave evidence that during the journey he said to McFie “I don’t want to do this, alright. It’s not my scene”. McFie, however, urged him to continue.
31 Williams gave evidence that he spoke to Steer, who agreed to participate. Steer had been at the detention centre on 3 May 1997, but returned to the flats late in the afternoon. Williams spoke to him when he returned. Steer arranged to borrow the car from his sister, Ms Joanne Stanger. Williams then went to McFie’s flat where she gave him a key to the back door of the deceased’s house, a plan of the interior of the house, and a photograph of the deceased. The address was written on the back of the map. A few minutes later McFie came to Williams’ flat and handed over an envelope containing $3,000. Williams gave $1,000 of this money to Steer, the arrangement being that he who injected the heroin would receive a greater share of the fee. Williams estimates that this occurred between 8.30pm and 9.30pm. He and Steer then left in Ms Stanger’s car to visit Williams’ brother, Stephen Redfern, at his sister’s place at Yarralumla. Williams gave his mother, who was there, $200 for an electricity bill and his sister $600 to repay a loan.
32 Williams, Steer and Redfern then drove into Civic, bought three caps of heroin which were shared by Redfern and Williams, and Redfern was dropped back at Yarralumla.
33 Further preparations were then made for the crime. Beanies were purchased from the Woolworths Supermarket in Manaka, to create makeshift balaclavas. Williams obtained three syringes from his house and two pairs of gardening gloves. Steer and Williams then set off for 35 Gollan Street, with Steer driving. Williams said that he went to sleep on the way, apparently due to the amount of drugs that he had consumed that day. On their arrival at Evatt, the car was parked in a cul-de-sac near Gollan Street. Williams used one of the three syringes to inject himself with more heroin. They then checked the house, returned to the car to obtain the syringes, balaclavas and gloves, then entered the backyard of 35 Gollan Street. Williams fell asleep in the backyard and was woken by Steer who suggested that they ring McFie and have her ring the deceased to check that she was at home. They drove to nearby shops where Steer rang McFie. They returned to 35 Gollan Street. They heard the telephone ring and a light was turned on. The light was then switched off. Steer and Williams waited approximately twenty minutes before they entered the house by the back door, using the key supplied by McFie.
34 They were met by the deceased in the hall. Williams requested that she return to her bed, which she did. He asked her to lie down and put out her left arm. She complied. She said she had children and money, but the two proceeded with her execution. Williams administered a syringe of heroin whilst Steer held his hand over her mouth in case she screamed. A short time later the deceased began to breathe in an erratic manner and Williams administered a second injection through the same puncture mark as the first injection. Steer and Williams waited for about one hour before leaving the house, helping themselves in the meantime to drinks from the refrigerator. They left by the front door. Williams said he left the front door open, although Steer gave evidence that he shut it as they left, and it was found shut the following day.
35 Williams said that he threw away the hypodermic syringes, and the beanies and gloves, but told police in his first interview that he could not remember where. Steer was more specific as to where they were left (on following up statements given by Steer, the balaclavas and gloves were recovered by the police). They returned to the flats at approximately 1.00am. Williams returned the photograph, map and key to McFie. Ms Stanger’s car was returned to her at approximately 3.00am.
36 Williams gave evidence that on 4 May 1999 he searched advertisements in the newspaper for a motorbike, and telephoned his mother to have her drive him to inspect motorbikes for sale. On 5 May 1999 he said he purchased a motorbike for $900 with part of the money received from McFie.
37 Williams said that a few days after the murder McFie asked that Steer and Williams pretend they did not know her, as she and Conway were being questioned closely by the police.
38 Williams recounted a motor accident that occurred some weeks after the murder near the flats. He attended the scene as a bystander. Conway was there in the course of his duties as a traffic police officer. Conway said to him “Don’t look at me, don’t talk to me”. (Other evidence established that this event happened on 18 June 1997).
39 Steer gave a substantially similar account of events at 35 Gollan Street on the night of the murder. As to events leading up to that occasion, he gave evidence of his initial meeting and acquaintanceship with both McFie and Conway in the flats, and of his discussion about his proceedings in the Family Court with Conway. He recounted an occasion when, upon Conway’s mobile telephone ringing, McFie said it was Conway’s wife who had been trying to contact them all day, “just harassing us”. Conway described the deceased as an alcoholic who did not take care of Alexander. He was generally disparaging of her as a mother.
40 Steer recounted an occasion when McFie came to Williams’ flat. Ulanowicz and Samantha Donaldson were there. McFie asked Ulanowicz if she could “score some heroin” and asked for two caps for $100. Ulanowicz said he could sell her heroin. McFie asked how she could use heroin other than by injecting it. She asked whether it could be drunk to which Ulanowicz replied that it could.
41 Steer said McFie came to Williams’ flat when he was present about two weekends later. On that day Redfern had been at the flat having just been released from gaol. Other evidence established that he was released on 11 April 1999. She asked if Redfern was back, saying that he had borrowed her car about forty-five minutes ago. Redfern later returned, and displayed three caps of heroin. Shortly afterwards Williams went up to McFie’s flat.
42 Steer then spoke of the number plate incident recounted by Williams, which he said occurred after the two events discussed above (i.e. the evidence of the supply of heroin to McFie). He said that after the plates had been removed and handed to McFie, Williams and McFie went back to McFie’s flat whilst he returned to Williams’ flat. Some twenty minutes or so later Williams returned to his flat and asked Steer how hard it would be to kidnap somebody. When asked why he inquired, Williams said “Because John just asked me if I could kill his wife”, and that Conway had offered him $15,000. Steer says that he replied that it would be too hard, and there would be a risk of too many people observing the event. The possibility of Steer assisting in the commission of the crime was discussed but Steer was non-committal. He did not discuss the topic again with Williams until the day of the murder, and it was not until that day that heroin was mentioned to him as the means of committing the crime. Steer estimates that the number plate incident was two weeks before the murder.
43 On 3 May 1997 Steer was released from the Queanbeyan Police Station at about 4.00pm, and collected by Ms Stanger who drove him to the flats. As they arrived, Williams ran over to him and asked if Steer could borrow his sister’s car, which he did. After dropping off his sister, Steer returned to the flats and Williams informed him that he had spoken to McFie, and she had told him that “if we’re going to do this it has to be done tonight”. Williams said that the deceased had been assessed as being suicidal and that it would be a good idea to kill her and make it look like suicide. Williams said that he was going to give her an overdose of heroin, and asked Steer if he would help. “All I want you to do is stop her from screaming and that’s it. If you do that I’ll give you $6,000”. Williams left, returning shortly afterwards with an envelope containing $3,000, of which $1,000 was given to Steer. Williams said that he had misplaced half the heroin that he had got for the job and that it was necessary to go to town to get more.
44 Steer gave evidence of their trip to Yarralumla and then of the trip to Civic with Redfern when more heroin was acquired. After dropping off Redfern they returned to Williams’ flat, prepared the heroin, acquired beanies from Woolworths and gloves from Williams’ flat. Steer said that before they left for Evatt, McFie came to Williams’ flat to ask if it would be done tonight. The paraphernalia assembled by Steer and Williams was on the table, including the photograph, key and plan which Williams had earlier obtained from McFie. Steer asked for and obtained McFie’s telephone number in case anything went wrong and they needed to contact her.
45 Steer then described the commission of the murder.
46 Steer gave evidence that some days after the murder the police spoke to him at the flats, and asked questions about the relationship between Conway and McFie. Steer told the police that he did not know them very well. When the police left, he went to McFie’s flat but she was away. The following day Steer saw McFie and reported the police visit. McFie asked Steer to keep a low profile.
47 Steer said that in the weeks following there were several communications between himself and McFie, or himself and Conway, about the payment of the outstanding portion of the fee. About ten days after the murder McFie told Steer that as Conway was being investigated by the police, and as his bank accounts were frozen until after the inquest, Steer and Williams would have to wait until then before being paid. At about the same time Steer said he had a conversation with Conway in the carpark of the flats when Conway said “What went wrong? Why didn’t you make it look like suicide? You were told to make it look like suicide”.
48 About two weeks after the murder Steer said he told McFie that he was broke, and again asked that they be paid. McFie reiterated that Conway’s assets were frozen, but later gave him $50.
49 About three weeks after the murder Conway and McFie moved from the flats to 35 Gollan Street. Steer said that on one occasion he and Williams went to 35 Gollan Street and he left a note on the windscreen of Conway’s car saying “Kathy, ring me”. The following morning McFie did so. Steer asked for money. She said that neither she nor Conway had money but they would contact Steer when they had some.
50 Steer gave evidence that McFie contacted him several days later, on 18 June 1997, and they made arrangements to meet at the Dickson Shell Service Station which they did later that evening. Williams was also present. Steer says that McFie got into the back of their car, and stated amounts which she had already paid them, saying that she still owed them about $11,000. She gave them $200 ($100 each), and said that she could not give any more until after the inquest.
51 On 21 June 1997 Ms Stanger was pulled over by the police for an alleged driving contravention, and subjected to breath tests. She reported that event to Steer, saying that her car had been searched for drugs. Steer said he then reported that conversation to McFie, saying that he did not think it was a normal run-of-the-mill event. He said McFie asked for his sister’s details and the registration number of the car, and said she would pass them on to Conway to get him to look into it for Steer. Steer says she wrote down the details on a piece of paper, which he identified in evidence. (The piece of paper had been found by the police in a drawer at 35 Gollan Street after Conway and McFie were arrested).
52 Steer gave evidence as to a visit which he and Williams made to 35 Gollan Street at 4.00am on 28 July 1997, after their arrest. This attendance was made at the request of the police, with Steer fitted with a listening device. Steer identified the voices of McFie and Conway recorded during that conservation, later transcribed and admitted into evidence as Exhibit 17. Further reference is made to this conversation later in these reasons.
The Heldon tapes - exhibit 64
53 After the arrest of Conway and McFie, a search of 35 Gollan Street discovered thirty-eight tapes of telephone conversations recorded by McFie between February and April 1997. In evidence McFie said that she made the recordings as she was uncertain what was happening at 35 Gollan Street in that she was receiving conflicting accounts from the deceased and from Conway about their matrimonial relationship. The tapes became known at trial as the “Heldon tapes” - as Constable Heldon was the person who listened to them and selected sections said to be relevant to the case. Almost all the conversations recorded were between McFie and the deceased, although there were three conversations recorded between McFie and Conway, and two between McFie and Alexander.
54 By way of background to the relevance of these tapes, in the course of police inquiries shortly after the murder, Conway was interviewed at length on 7 May 1997, and McFie gave a statement to the police on 11 June 1997. The effect of their statements was to deny any sexual relationship, and to describe the role of McFie as a babysitter for Alexander.
55 The selected portions of the recorded conversations identified by Constable Heldon were led in evidence to show the nature of the relationship between McFie and the deceased, and McFie and Conway, and also to show that McFie and Conway in their dealing with the deceased had acted in tandem in a way that would cause her harm in the proceedings over Alexander. In a number of the recorded conversations McFie appears to show concern and express support for the deceased. However, the tapes disclose that McFie then reported the conversations to Conway. In one conversation McFie appears to disclose the lack of genuineness in her relationship with the deceased by stating to Conway that she “had to speak to her (the deceased) and be civil to her because it’s the best thing to do under the circumstances”. The tapes also record a conversation, probably in February 1997, between Conway and McFie in which each expresses love for the other.
56 The recordings also show that McFie used her relationship with the deceased as a tool to the advantage of Conway, in that she used the friendship as a means of getting information to report to Family Services regarding Alexander. In tapes dated 23 and 24 March 1997 McFie is recorded as making a report to Family Services about the deceased’s alleged mistreatment of Alexander, yet in subsequent conversations between McFie and the deceased, McFie is recorded as denying her report to Family Services, seeking to place the blame for the report instead on one of the deceased’s neighbours. In the same conversation the deceased put to McFie that the deceased’s neighbour, Mrs Noordhof, had suggested that the most likely source of the report to the Family Services was from Conway and McFie. McFie vehemently denied the accusation. The deceased said that she believed McFie, and consoled her for the “lies” that had been said about her by the neighbour.
57 The Heldon tapes record that on one occasion McFie advised Alexander to ring Family Services, and she told him to make a complaint about his mother, by saying “Mummy’s been drinking. She’s passed out and won’t wake up”. She told Alexander on another occasion that “one day you might even have your own pool and you won’t have to worry about Mummy, how does that sound”, and that it “doesn’t matter whatever Mummy says”.
The coffee incident
58 Evidence from a number of sources established that early on the morning of 25 April 1997 Conway went to 35 Gollan Street. Conway said he did so having received an early morning telephone call from the deceased requesting him to come over and sort things out. That such a request was made is confirmed by an entry made by the deceased in a diary that she was keeping. When Conway arrived, coffee was prepared. The Crown led evidence to the effect that the deceased complained to a number of people that day and shortly afterwards that her coffee tasted bitter and contended that the proper inference from the evidence was that Conway had placed heroin in the deceased’s coffee. It was part of the Crown’s case that the placing of heroin by Conway in the deceased’s drink was part of a plan to make it look as if the deceased was a heroin user so that her subsequent death would appear to be due to a self-administered overdose. The Crown contended that this was part of the mosaic of facts which constituted the joint enterprise of the murderers, and the implementation of that enterprise. The Crown case linked the coffee incident to McFie’s purchase of heroin from Williams, Ulanowicz and Redfern. The Crown also led the evidence because Conway in his record of interview with the police on 7 May 1997 had asserted an account of the coffee incident which suggested that the deceased had in fact put heroin in his coffee, an account which the Crown contended was a material and deliberate lie which provided corroboration of the evidence of Steer and Williams.
59 In his record of interview Conway told the police that the deceased made him a cup of coffee which he found to be sour. He said he thought she may have put in salt instead of sugar. The deceased went to the toilet, so he went to the kitchen, and made himself another coffee which tasted fine. Whilst he was there he said he found two pieces of paper foil that had been folded fairly tightly on the windowsill. He unfolded them. They looked strange, so he put them in his pocket.
60 The Crown led evidence that on the evening of 26 April 1997 Conway handed the two pieces of foil to a police officer at the Regional Coordinating Centre of the AFP, requesting that they be registered in the drug register. The entry was marked NOE (no owner established) at Conway’s request, but he informed the officer to whom he handed the foils that he had found them in his home but did not wish to have that fact identified until it was established that the foils contained a drug. Once registered, the foils in the ordinary course were submitted to analysis and showed traces of heroin.
61 The Crown also led evidence from three people to whom the deceased made complaint about the coffee incident on or about 25 April 1997, and from a police officer to whom she complained on the evening of 27 April 1997. Mrs Skellern gave evidence that she had known the deceased for some time and spoke to her from time to time by telephone. In one conversation the deceased complained that Conway had made her a coffee which tasted funny. She tipped it down the drain, and observed a white powder at the bottom of the cup. She said she spoke to Conway about the coffee and he said it would not hurt her, but would settle her down, relax her. She said she found a bottle in Conway’s pocket with no label on it. Mrs Dillon, a neighbour, said that late in the afternoon of either 25 or 26 April 1997 the deceased had told her that Conway had made her a cup of coffee earlier in the day, and put something in it. She said Conway said he put something in it to make her relax. The deceased told Mrs Dillon that Conway had attempted to poison her. Mrs Dillon told the deceased to ring the police. Mrs Noordhof, another neighbour, gave evidence that the deceased said to her that Conway had made her a cup of coffee and it tasted bitter, revolting, and she tipped it out. She said it had bubbles in the bottom of it. Conway then got her a glass of water which also tasted revolting. When she tipped that out it also had bubbles in it. Mrs Noordhof said the deceased said she later found a bottle in Conway’s pocket, the bottle being fitted with a dropper. She said Conway said it contained relaxing drops.
62 Constable Dix was the police officer who received the deceased’s complaint on 27 April 1997. He gave evidence that the deceased telephoned the police at 9.45pm. She said Conway had been over to her house and they were having coffee. She left the room briefly and when she returned her coffee tasted bitter. She looked at it and it appeared as though something had been dissolved in it. She said she asked him what he had put in it, and he said nothing had been put in the coffee. She then left the room and went into the kitchen to tip the coffee out. She said as she tipped it out, it appeared in the bottom of the cup as though something had been dissolved in it. She challenged Conway about it, and he admitted that he had put something in the coffee, saying “it will help you relax”. The deceased told Constable Dix that there was a bottle of a certain brand of relaxant in his pocket. She did not identify the relaxant. Constable Dix asked her how she knew it was there and she said “I just know”.
63 The deceased’s diary entry for 25 April 1997 was admitted into evidence. It reads:
“25.4.97
I rang John at 6.30am & asked John to come over for coffee. He came over just aft 7am. I made coffee, we sat in lounge room. I went out to get a tissue, then came back & had 2 mouthfulls of coffee said I was feeling drowsy, tipped coffee out & saw froth inside cup. Said to John, you druged me, he said no, go & lie down, so I did brought me in glass of water, had mouthfull, tasted bitter like coffee. felt pocket of his jkt, felt a sm. bttle. asked him to show me bttle finally showed me. was a Sm. brown bttle with dropper. said was nose drops. Eventually admited putt it in drinks. wanted me to calm down so we could talk.”
That entry was put to Conway in the course of his police interview on 7 May 1997. Conway said that he was aware that the deceased had mentioned to others, including her solicitor, that he had tried to drug her, but denied the accuracy of the entry, saying that he did not believe it to be true.
64 In his interview with the police Conway said that he had taken the foils from the deceased’s kitchen merely out of curiosity to know what was on them. However, in his evidence at trial he said that he took them as he thought they might be useful in the Family Court proceedings. When challenged as to the inconsistency in these statements, he admitted that he had lied to the police as to his state of mind when he found the foils.
Corroboration evidence
65 Steer and Williams were cross-examined as to inconsistencies between their respective accounts given in-chief, and as to inconsistencies between their evidence-in-chief and earlier statements given to the police. The discrepancies were, however, as to matters of timing and detail rather than the general nature of the events described, and their sequence. Their evidence, if accepted by the jury, provided an ample basis to support the Crown case that Steer and Williams had been procured by McFie and Conway to commit the murder, and that all four of them were acting in pursuit of a common purpose.
66 Both Steer and Williams were convicted persons. Both were drug users, Williams, on his own admission, at times being ill and confused by his intake of heroin. Moreover, they were accomplices, and for that and the other reasons their evidence required special care. In his summing up, the trial judge gave a warning as to the need for that care, but the terms of that warning are the subject of one of the grounds of appeal. The trial judge also directed the jury on evidence that could provide corroboration of the evidence of Steer and Williams. Again, those directions are the subject of other grounds of appeal.
67 The trial judge identified the following evidence which he instructed the jury could amount to corroboration:
(a) the evidence from a police witness that the bicentenary number plates were found after the murder in the garage at 35 Gollan Street. (After saying to the jury that he would identify for them evidence which could amount to corroboration, the trial judge referred to this evidence, to the evidence of conversations about the number plate between Williams and McFie and to the evidence that Steer and Williams removed the number plate. His Honour then added: “Now, it does not corroborate the murder, but it is some evidence of some sort of relationship between McFie and the two accomplices”);
(b) evidence led from Redfern that about one week after his release from prison, at Williams’ flat, he saw McFie talking with Williams, and then the pair went off to a separate room for ten minutes or so. The trial judge instructed that this was evidence independent of the two accomplices of a conversation in a withdrawn position between McFie and Williams;
(c) evidence of Redfern and Ulanowicz that at Williams’ flat, McFie asked how heroin could be taken. Redfern gave evidence of an occasion when he told her that it could be drunk, smoked, injected or there are other ways that he did not know. Ulanowicz described an occasion when she asked how much she could get for $150, and he told her three caps. Ulanowicz said she then bought three caps from him for $150, saying she wanted it for friends;
(d) Redfern also gave evidence of another occasion when McFie came to Williams’ flat, saying she wanted to buy $300 worth of heroin, and Redfern sold her six caps for $300, giving her three initially, and then a further three after he had been to Civic to acquire them. He said he borrowed her car to travel to Civic. The trial judge instructed the jury that if accepted this was evidence of McFie showing an interest in heroin, it being part of the Crown case that this interest in heroin, and the supply of heroin, was related to the coffee incident on 25 April 1997;
(e) evidence from Ulanowicz that he was at Williams’ flat after the two sales of heroin. Williams returned after apparently visiting McFie’s flat, and reported that he had been asked by Conway to knock off his wife. Ulanowicz described Williams as being “agitated and fidgeting around”;
(f) evidence from Ulanowicz that he travelled with McFie and Williams to Eaglehawk “to score a half” of heroin and that they went in McFie’s car because the heroin was for her;
(g) evidence from Ms Stanger confirming that Steer borrowed her car on the evening of 3 May 1997. She said she had collected Steer from the detention centre, driving him to the Stuart flats where Steer spoke with Williams, and that Steer then asked to borrow her car. The car was returned to her about 3.00am the following morning at which time Williams was in the back seat “totally spaced out”. The trial judge instructed the jury that they might regard that evidence as corroborating the evidence of Steer and Williams that they used Ms Stanger’s car for the purpose of getting to 35 Gollan Street;
(h) The trial judge referred to evidence from several sources of Williams’ “new found wealth” on and shortly after 3 May 1997. Ulanowicz said that he knew Williams was on the dole and struggling for cash, but at Eaglehawk Ulanowicz saw Williams with $800 cash, and later became aware that he had bought a motorbike. Williams’ sister, Mrs Robson, gave evidence of receiving the payment of $600 in cash which Williams counted from a white envelope. On being asked where he got the money from, Williams told his sister it was none of her business and she did not want to know. Mrs Robson also said that on the following day, Sunday morning, Williams came back to her house asking if she could take him to find a motorbike. Williams’ mother gave evidence that on a day in May, she thought a Sunday, Williams paid her $200 towards a light bill, and the following day she took him to buy a motorbike. The Crown also proved in evidence a dealer’s invoice for $900 for the motorbike purchased by Williams on 5 May 1997;
(i) evidence from Redfern that on Saturday 3 May 1997 he had a disagreement with Williams. The following day Williams came to their sister’s home (Mrs Robson’s home). He said Williams had an envelope and there was “a heap of cash” in it. Redfern said that when he asked Williams about the cash, Williams told him to mind his own business. Shortly thereafter he said they travelled to Civic to purchase heroin;
(j) evidence from Redfern that on an occasion after the murder, at the request of Williams, he went to McFie’s flat and told her that Williams wished to see her. She attended Williams’ flat, and Williams asked her for $250. The trial judge drew to the jury’s attention the contrast between that amount and other evidence that in the past he had borrowed from McFie only smaller amounts which varied between $20 and $50;
(k) evidence from Ms Stanger that she had been pulled over by the police who searched her car. She said she reported that incident to Steer. That evidence, together with the note prepared by McFie recording particulars about the incident and Ms Stanger’s car, the trial judge instructed could be corroborative of Steer’s evidence of the relationship between Steer and McFie;
(l) evidence from a telephone tap of a conversation between Conway and McFie concerning Ms Stanger’s encounter with the police. The trial judge instructed the jury that whilst this evidence was “on the margin”, it was evidence of some association between Steer and McFie. (On 23 May 1997, the police received information from a person that Steer had admitted committing the murder, and had introduced Williams to her as “the bloke that done it”. This led to police obtaining warrants for telephone intercepts on 30 May 1997);
(m) evidence about the presence of Williams and Conway at the scene of the motor accident near the flats on 18 June 1997. A video of the aftermath of the accident taken by a television station was adduced in evidence. It showed Williams at the scene. Further, evidence was led of a telephone interception of a conversation between Conway and McFie as follows:
Conway: Without mentioning any names eh guess who I saw at ah the prang?
McFie: Of course.
Conway: Yeah.
McFie: Hm (pause) did you speak to him?
Conway: Ahm as if I didn’t know him.
McFie: Yeah fair enough.
…
McFie: And he came and spoke to you?
Conway: Ah not directly he just made a comment about the quality of the ah merc.
McFie: Oh okay huh God if he had half a brain he’d be dangerous.
Conway: That’s about right.
Conway in his evidence confirmed his presence at the scene, and that he saw Williams. He said Williams made some comment about the accident to which Conway did not respond because he thought Williams was an idiot. Both Conway and McFie were questioned at length in their evidence about why Williams was referred to obliquely in the conversation, and how McFie knew immediately that Conway was referring to Williams. Conway said he was testing McFie, that they had had a conversation several months earlier about how nosy Williams was, and how he was just the sort of fellow who was likely to stick his nose in places. Conway said he referred to Williams in an indirect fashion to see if McFie recalled the conversation. The trial judge instructed the jury that the behaviour of Conway in his conversation with McFie, in not mentioning Williams’ name, could indicate the plain rapport he had with McFie as to who he was talking about;
(n) evidence of the payment of $200 by McFie to Steer and Williams on 18 June 1997. In relation to that incident, there was evidence of a telephone interception of a call made by McFie to Steer late the night before when she said she would catch up with him the next day. There was also evidence of interception of a further telephone conversation in which arrangements were made by McFie to meet Steer and Williams at the service station. There was other evidence of a withdrawal of $200 by McFie from her account at the Credit Union of Canberra on 18 June 1997. Further, the meeting between Williams, Steer and McFie was recorded on video by the police who had them under surveillance at the time of the meeting. In her evidence, McFie confirmed the meeting, but said that she had given Steer only $20, in such a way that Williams could not see her do it. The trial judge instructed the jury that if they accepted the Crown case that she paid Steer and Williams $200 on that occasion, they might think that to be strongly corroborative of the Crown case;
(o) evidence of the 4.00am visit to 35 Gollan Street on 28 July 1997. The actual conversation picked up by the listening device fitted to Steer, together with a transcript was in evidence. About that evidence the trial judge merely instructed the jury:
“You were referred to it and, indeed, it was played only yesterday. It is exhibit 17. At the time Conway handed to Steer a $50 note and that itself is in evidence as exhibit 61, and Conway himself confirmed in his evidence that he had done so. You will consider what was said and what was recorded and it will be a matter for you as to whether you regard what was said and the money being handed over as some sort of corroboration of the story that Steer and Williams had given you.”
In their evidence Conway and McFie said that Conway was not present for part of the conversation, being in the master bedroom. However, repeated references by Steer to “John”, and the sound record of the conversation, are strongly suggestive of the fact that Conway was present for virtually the whole of the conversation, except for a pause near the end when he apparently departed to obtain $50 to meet a request from Steer and Williams for “taxi money” to leave Gollan Street. The conversation commences with Steer informing Conway that he had been interviewed that night by the police, he was in deep trouble, and needed to get out of town:
Steer: I’ve got to get out of town today. I’ve got to get and I want to get and go and kidnap my son and leave this state John. I need you to pay me. I’ve got to John, I’m gonna. John they come around tonight they interviewed me again they know something, okay.
…
I, I really got to go, can you understand what I’m doing John, I really got to go, okay.
Conway: I can understand what you’re saying.
Steer: I need ya, I need you to fix me up mate. I don’t like coming here I, I can’t…
Williams then asks that the light be turned on after which Williams says, with Conway and McFie present, “Oh this what the place looks like”. There is no comment by Conway and McFie about that remark. Steer says that the police said that they know that he was involved in the murder. Williams asked if “we could get a coupla grand or something of yous…”. Steer said that he had panicked and that “I’ve got to go and see you people and get some money”. Conway is recorded as saying “I can get it within a couple of days”. Steer spoke of going to jail for ten, fifteen or twenty years “for murdering this woman”. Steer and Williams then asked for a “taxi fare back”, intimating that they were safe because the taxi which had brought them had dropped them off some distance from the house. Later in the conversation, after Mrs Conway’s murder had been specifically mentioned, and Steer said that the police suspected McFie and Conway of having hired himself and Williams to carry out the murder, the following interchange was recorded:
Conway: I’ll give you a ring.
Steer: Give me a ring.
Conway: I’ll give you a ring later today.
Steer: Yeh.
Williams: So we should be getting our money in the next coupla days.
Conway: Definitely some.
Williams: Some.
Steer: We need at least a coupla grand John you realise that don’t you know you can’t just up and leave like a coupla hundred.
Williams: … (inaudible)…can’t live on the dole…(inaudible)…
and later again:
Williams: Actually how much do yous owe us now?
McFie: Mmh.
Steer: I’m at eleven.
McFie: Mmh four, … (inaudible)… just under. It was four two.
Steer: So you’re saying ten eight.
McFie: Mmh huh.
Steer: Oh well as soon as we can get something like that, that as soon as you, so you’ll ring tomorrow after lunch will you at home and give me a definite answer.
McFie: Mmh huh.
Steer: At what time I can pick some money up.
McFie: Well we’ll have to, we’ll have to do something;
(p) the trial judge referred to the finding of the balaclavas and gloves by the police and instructed the jury that those items were capable of amounting to corroboration about the commission of the offence, but did not prove anything in relation to the complicity of Conway and McFie;
(q) the trial judge reminded the jury of the evidence given by Williams that Conway had said that death should be by overdose of heroin. The trial judge instructed the jury:
“The fact is, you may find, that the death was brought about by an overdose of heroin, the way Williams had been told to do that, that is the way Conway wanted it done, according to Williams, and that is the way it was done, tend, you may think, to corroborate Williams’ story.”; and
(r) the jury were instructed as to the circumstances in which they might treat lies told to the police or in evidence as amounting to corroboration. The jury were referred to the records of interview of Conway and McFie, and reminded of the Crown’s case that Conway had denied the true nature of his relationship with McFie, and denied that he had a sexual relationship with her, a lie to which Conway admitted when giving evidence. Moreover, he admitted that he had asked McFie on several occasions to maintain the lie, which the Crown alleged she had done when interviewed by the police on 11 June 1997. On that occasion her statement effectively denied any close relationship with Conway. The Crown also contended that Conway had lied in asserting that McFie was the deceased’s closest friend. The trial judge also referred to the Crown case that it was a lie when Conway pretended to be surprised when confronted with the deceased’s allegation that he had tried to drug her on 25 April 1997, and to his evidence about his state of mind when he found the foils in the deceased’s kitchen. The jury were reminded that the Crown relied on the Heldon tapes as indicating the untruthfulness of Conway’s description of his relationship with McFie. Finally, the trial judge reminded the jury that the Crown asserted that both Conway and McFie in their evidence lied in the explanations they gave about the discussion with Steer and Williams at 4.00am on 28 July 1997.
Conway’s appeal against conviction
68 By an amended notice of appeal, filed on the morning of the commencement of the appeal with the leave of the Court, Conway relies upon some eighteen separate grounds of appeal in support of his appeal against conviction.
69 The grounds of appeal raise for consideration the following general questions:
· Did the trial judge err in permitting the Crown to lead evidence of the coffee incident? If that evidence was properly received, were the jury adequately directed as to how that evidence could be used? (Grounds 9, 10 and 11);
· Did the trial judge err in permitting the Crown to tender the “Heldon tapes” (exhibit 64) and to lead other “relationship evidence”? If that evidence was properly received, were the jury adequately directed as to how that evidence could be used? (Grounds 4, 5, 6 and 8);
· Did the trial judge adequately direct the jury regarding accomplice evidence and corroboration? (Grounds 7, 14, 15, 16 and 17);
· Did the trial judge adequately direct the jury regarding the “co-conspirator rule”? (Grounds 12 and 13); and
· Did the trial judge’s intervention in the cross-examination of McFie cause the trial to miscarry? (Grounds 1, 2 and 3)
70 Mr Tilmouth QC, who appeared for Conway on the appeal, though not at the trial, dealt with the questions set out above in that order. Mr Golding, who appeared for the Crown both on the appeal and at the trial, adopted Mr Tilmouth’s order of argument. It is convenient, therefore, that we do so as well.
Consideration of the coffee incident
71 It will be recalled that early on the morning of 25 April 1997 Conway, responding to a request from the deceased, went to 35 Gollan Street. When he arrived, coffee was prepared. The Crown led evidence to the effect that the deceased complained to a number of people within the next day or two that her coffee had tasted bitter, and told them that Conway had admitted to her that he had put something in her drink. The deceased also recorded this incident in her diary. The Crown contended that the proper inference to be drawn from this evidence was that Conway had put heroin in the deceased’s coffee. The Crown alleged that Conway’s plan had been to ensure that when the deceased’s body was examined, after she was murdered, it would be found to contain traces of heroin. This would make it appear that she had used heroin regularly, and had died of a self-administered dose of that drug.
72 Mr Pappas, who appeared for Conway at the trial, objected to evidence of the coffee incident being led. He submitted that it should be excluded because:
· it disclosed the commission of an offence other than that with which Conway was charged, and should therefore be viewed as “propensity” or “similar fact” evidence;
· the deceased’s statements to the various persons to whom she spoke about what had occurred were “previous representations” within the meaning of that expression in s 59 of the Evidence Act 1995 (Cth) (“the Act”), and not admissible to prove the truth of that which was asserted; and
· the deceased’s version of the coffee incident as set out in the entry in her diary dated 25 April 1997 (exhibit 28) was hearsay, and inadmissible.
73 The trial judge heard from the various persons to whom the deceased had spoken about the coffee incident on the voir dire . His Honour ruled that these persons could give evidence of what they had been told by the deceased, and also that the diary entry was admissible. He stated that he would deliver his reasons for that ruling at a later date. That ruling was published on 20 July 1998. In substance, his Honour held:
· The evidence concerning the coffee incident was relevant as “relationship evidence”. It was probative because it demonstrated Conway’s hostility towards the deceased very shortly before her death. It revealed the lengths to which he was prepared to go to discredit the deceased in order to regain custody of his son. It therefore bore directly upon the issue of motive;
· More importantly, the evidence was admissible because Conway’s conduct in putting heroin into his wife’s coffee a week or so prior to her death was an act which the jury might find was carried out in preparation for her murder. The discovery of traces of heroin in the deceased’s body would make it appear that her death was the result of a self-administration of heroin, and would therefore deflect suspicion from Conway;
· The evidence tended to rebut any suggestion that Steer and Williams had murdered the deceased on some frolic of their own. By linking Conway with the purchase by McFie of heroin, it demonstrated that Conway and McFie had a criminal association, and not an innocent relationship. The evidence was therefore admissible in accordance with the principles laid down by the High Court in Harriman v The Queen (1989) 167 CLR 590; and
· The evidence, though hearsay, was admissible pursuant to the exceptions to the hearsay rule contained in s 65 of the Act.
(a) The coffee incident as propensity evidence.
74 The jury were not, of course, privy to the trial judge’s reasons for permitting the Crown to lead evidence concerning the coffee incident. They were, however, instructed as to the use to which that evidence could be put. They were directed by the trial judge that the coffee incident could be used as “relationship evidence” bearing upon the issue of motive. They were told that it could be viewed as part of Conway’s preparation for the murder itself. They were also told that it could form the basis of a finding of consciousness of guilt on Conway’s part having regard to what the Crown said were his deliberate lies about that incident in his record of interview.
75 The trial judge did not direct the jury that the coffee incident could be used as “propensity” or “similar fact” evidence. His Honour said nothing to indicate to the jury that they might reason that because Conway had drugged the deceased on 25 April 1997, they might infer that he had caused her to be killed by an overdose of heroin a week or so later.
76 Mr Tilmouth submitted that the evidence concerning the coffee incident was “propensity evidence”, because it disclosed the commission of an offence not charged in the indictment. He submitted that because it was propensity evidence it was not admissible unless it satisfied a particularly high threshold test. He referred to Harriman, and in particular to the following statement by Dawson J at 602:
“Propensity evidence is, of course, circumstantial evidence in that the only proof which it can offer is proof by inference. But it is circumstantial evidence of a dangerous kind because of the prejudice which it engenders. That is why the occasions upon which it is admissible are strictly limited. As with all circumstantial evidence in criminal cases, it should not be used to draw an inference adverse to an accused unless it is the only reasonable inference in the circumstances. But more than that, the evidence ought not be admitted at all if the trial judge is of the opinion that there is a rational view of it which is inconsistent with the guilt of the accused: see Hoch (1988) 165 CLR at p 296. If he is of that opinion, the evidence will not possess the requisite high degree of probative force.”
77 Mr Tilmouth submitted that the evidence concerning the coffee incident was inadmissible unless the Crown was able to establish that the substance which Conway had put in the deceased’s coffee was heroin. He submitted that there was no evidence to support that conclusion. This meant that there was a rational view of the evidence concerning the coffee incident which was inconsistent with the guilt of Conway on the charge of having murdered his wife. That evidence did not, therefore, possess the requisite “high degree of probative force” to warrant admissibility.
78 Mr Tilmouth relied heavily upon the decision of the High Court in Pfennig v The Queen (1995) 182 CLR 461 where, in a joint judgment, Mason CJ, Deane and Dawson JJ reviewed the principles governing the admissibility of “propensity” or “similar fact” evidence. Their Honours commenced their joint judgment at 464-5:
“This appeal raises questions as to the admissibility of what has been described as propensity or similar fact evidence and the use to which it can be put. There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term “similar fact” evidence is often used in a general but inaccurate sense.” (emphasis added)
79 Some commentators have found difficulty with this passage. Their Honours did not define the terms “propensity”, “similar fact” or “relationship evidence”. The division of “propensity evidence” into categories of “similar fact”, “relationship evidence” and “identity evidence”, does not accord with traditional usage. Nonetheless, this statement from the majority judgment, though obiter, stands authoritatively for the proposition that “relationship evidence” is to be viewed as a sub-set of “propensity evidence”.
80 The proposition that relationship evidence was a form of propensity evidence had been stated some years earlier in Hoch v The Queen (1988) 165 CLR at 294, and also in S v The Queen (1989) 168 CLR 266 at 275. It was reiterated in the joint judgment of McHugh and Hayne JJ in Gipp v The Queen (1998) 194 CLR 106 at 132-3, and also in the judgment of Callinan J at 164-9. Indeed, the expression “relationship evidence” was treated in Gipp as being apparently interchangeable with “similar fact evidence” and “propensity evidence”. Although Gipp did not involve the provisions of the Act, Kirby J, at 155-6, was prepared to describe “relationship evidence” as “tendency evidence”.
81 Returning to the joint judgment in Pfennig, their Honours said at 482-3:
“An important distinction is to be drawn between cases such as the present case in which the “similar facts” are not in dispute and cases in which such facts are in dispute …
Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.” (emphasis added)
82 It is clear from this passage that the joint judgment of the majority in Pfennig endorsed the approach to “similar fact evidence” previously taken in Hoch, and Harriman.
83 Mr Tilmouth submitted that the jury would inevitably have regarded the evidence concerning the coffee incident as “propensity evidence” whatever limits the trial judge might have put upon it. He submitted further that the various decisions of the High Court to which we have referred required that this evidence be excluded if there was a “rational” view of it which was consistent with the innocence of the accused. He submitted finally that in the absence of evidence that the drug Conway had put in the deceased’s coffee was heroin, there had to be a rational view of the coffee incident which was consistent with innocence.
84 If by that submission Mr Tilmouth intended to convey that the jury would inevitably have used the evidence concerning the coffee incident as “similar fact evidence”, we do not agree. “Propensity evidence” it may well have been, having regard to the extended meaning given to that expression by the High Court. “Similar fact evidence”, in the sense of evidence relevant via propensity, it was not.
85 We do not consider that the jury would have concluded that merely because Conway had put heroin (or indeed any other drug) in the deceased’s coffee during the course of the coffee incident, it followed that he was, by disposition, a person likely to have arranged for the murder of the deceased by overdose of heroin a week or so later. The Crown at no stage invited the jury to view the evidence in that way. Nor did the trial judge. The jury were instructed only that the evidence concerning the coffee incident could be used as “relationship evidence”, relevant to motive, and that it might also be relevant, in a non-propensity way, as evidence of an act preparatory to murder.
86 There can be no doubt that the evidence concerning the coffee incident threw light upon the relationship between Conway and his wife. It pointed to the existence of a motive on his part to have her killed. The evidence was admissible notwithstanding the fact that it may also have had the effect of placing before the jury evidence of the commission of an offence other than that with which the accused was charged. Such evidence was not, for that reason alone, to be excluded.
87 In Wilson v The Queen (1970) 123 CLR 334 Menzies J (with whom McTiernan and Walsh JJ agreed) said at 344:
“Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife."
88 Menzies J referred to the leading statement of principle in R v Bond [1907] 2 KB 389 where Kennedy J said at 400-401:
“Such prior acts formed, in point of historical and circumstantial connection, inseparable parts of the transaction which the jury had to investigate. Within this same limitation, I think, come the cases of trials for murder and wounding with felonious intent, in which evidence is admissible to shew prior assaults by the prisoner upon the murdered or injured person or menaces uttered to him by the prisoner, or to shew conversely irritating behaviour by the deceased to the prisoner … The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.”
89 A useful illustration of these principles is to be found in O’Leary v The King (1946) 73 CLR 566. B, an employee at a timber camp, and other fellow employees including the applicant took part in a drunken orgy which commenced on Saturday morning and continued until late on Saturday night. At about midnight B retired to his cubicle which was a short distance from that of the applicant. In the early hours of Sunday morning B was found, dying. Evidence showed that he had been struck on the head eight or nine times with a bottle after which kerosene having been poured over him, his clothes had been set on fire. Shortly before the discovery of B, the applicant had in his possession a bottle. A pullover belonging to the applicant was found close to B’s cubicle. At the trial evidence was admitted that the applicant at various times during the orgy had violently assaulted other employees. Some of these assaults were unprovoked and all consisted of brutal blows aimed at the head. One such blow had been aimed at B. The High Court by majority held that this evidence was admissible on the ground that it disclosed a connected series of events which should be considered as one transaction. Importantly, the cases dealing with “similar facts” were put to one side. The relevant principle was said to be that expounded by Dixon J in Martin v Osborne (1936) 55 CLR 367 at 375 where his Honour spoke of evidence of “facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued”.
90 In R v Tsingopoulos [1964] VR 676 the Full Court of the Supreme Court of Victoria considered at length the principles governing the admissibility of “relationship evidence”. The accused was charged with having murdered his wife in 1963. The evidence which the Crown led at his trial established that there had been hostility between the accused and his wife in 1957 and again in 1959. It was scarcely surprising that the Full Court held that the links between these earlier incidents and the death of the deceased were too tenuous to have justified the admission of this evidence.
91 In R vFrawley (1993) 69 A Crim R 208 the New South Wales Court of Criminal Appeal comprehensively reviewed the authorities dealing with “relationship evidence”.
92 Gleeson CJ stated at 220:
“One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question. Frequent and serious quarrelling between a couple, of a kind that goes beyond what Menzies J referred to in Wilson as ordinary difficulties and disagreements, may be relevant to whether one intended to kill the other, or to some other issue in a criminal trial. That is one kind of relationship evidence. What, however, of evidence of the state of mind of one party to a relationship? If one party to a relationship is accused of murdering the other, admissible evidence of the accused’s state of mind may well be relevant. … Again, evidence that one party says things derogatory of the other party, in the other party’s absence, is a form of relationship evidence. Whether or not it is admissible may depend upon the circumstances, and it is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible. In this case I find it preferable to avoid the label “relationship evidence” and to seek to describe more accurately and more particularly the subject matter.”
93 The subject of relationship evidence was considered recently by the High Court in Gipp v The Queen. The Court was divided as to the circumstances in which relationship evidence was admissible. Three members of the Court, McHugh, Kirby and Hayne JJ, accepted as a matter of principle that relationship evidence is admissible in order to enable the jury to evaluate properly the evidence concerning the offences charged. They emphasised, however, that the prejudicial nature of that evidence had to be outweighed by its probative value in relation to that issue. They also stressed that the trial judge must be careful to direct the jury in relation to the limited use to which the evidence could be put. It was not to be used for the purpose of suggesting that the accused, by reason of propensity, had committed the offence charged. McHugh and Hayne JJ accepted that the evidence led in Gipp had been adduced for the limited purpose of making the circumstances of the specific offences more intelligible, and not as propensity evidence. Kirby J agreed, though his Honour was prepared to describe relationship evidence as a form of “tendency evidence”.
94 Gaudron J took a narrower view of the circumstances in which relationship evidence may be led. Her Honour held that if such evidence does not fall within the principles governing admissible propensity evidence, it will be admissible only to meet subsidiary issues raised by the accused, such as failure on the part of the victim of an alleged sexual offence to complain. Callinan J was also concerned about “the danger of admitting so called ‘background’ evidence”. His Honour expressly noted his disagreement with what both Brennan and Deane JJ had said in B v The Queen (1992) 175 CLR 599 at 604-5 and 610 in that regard. Callinan J agreed with Gaudron J that relationship evidence was only admissible if it was rendered so by the forensic conduct by the defence, and then only for “some quite specific, other, purpose including, for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity or motive”.
95 It is plain from these authorities, including the latest pronouncement by the High Court in Gipp, that “relationship evidence” (or any other, more satisfactory term) falls outside the parameters of the special rules developed in cases such as Hoch, Harriman and Pfennig to deal with the more difficult, and more dangerous category of “similar fact evidence”. The admissibility of “relationship evidence” turns upon its relevance to the issues in the trial. Such evidence must satisfy the test that its prejudicial nature is outweighed by its probative value. It is not required to satisfy the special test formulated ultimately in Pfennig designedto deal with the admissibility of what has traditionally been described as “similar fact evidence”. It must be remembered that Pfennig had nothing whatever to do with “relationship evidence”. None of the authorities dealing with relationship evidence were referred to by any of the members of the High Court, let alone disapproved. Pfennig dealt with the special dangers inherent in propensity reasoning.
96 The trial judge in the present case gave careful attention to the two principal authorities dealing with the admissibility of relationship evidence. His Honour referred specifically to both Wilson and Frawley in the course of his ruling concerning the admissibility of the evidence relating to the coffee incident.
97 In our view the provisions of the Act which govern the admissibility of “similar fact evidence” have no application to relationship evidence which is led in accordance with the principles laid down in Wilson and Frawley. Relationship evidence does not fall within the ambit of the tendency rule as contained in s 97, or the coincidence rule in s 98.
98 We are fortified in this conclusion by a decision of Hunt CJ at CL in R v Lock (1997) 91 A Crim R 356. In that case the accused stood trial for murder. She had stabbed the deceased, a man with whom she was living at the time, although no longer in a de facto relationship. She relied, in support of her claim of self defence, upon a history of violence directed against her by the deceased. The Crown in turn sought to adduce evidence of injuries received by the deceased at her hands, including three stab wounds. This evidence was put forward by the Crown as being “relevant to the true nature of the relationship between them”, but also as “tendency evidence” within the meaning of s 97 of the Evidence Act 1995 (NSW).
99 Hunt CJ at CL held that some of the evidence was tendency evidence and was not admissible because, even if it had the significant probative value as required by s 97, the Court would not be satisfied, as required by s 101(3), that its probative value substantially outweighed any prejudicial effect it might have on the accused. His Honour was also of the view that, for that part of the evidence to be admissible in accordance with the High Court in Pfennig, there must be no reasonable view of it which is inconsistent with the innocence of the accused.
100 Hunt CJ at CL held further that some of the evidence was relationship evidence only and not therefore subject to the restrictions on admissibility imposed by ss 97, 98 and 101. In accordance with s 136 his Honour directed the jury that the relationship evidence could not be used as tendency evidence.
101 We agree, with respect, with his Honour’s approach. The admissibility of “relationship evidence” under the Act is governed, in our view, by the relevance of that evidence, subject to the exercise by the trial judge of his discretion to exclude it under one or more of the various exclusionary discretions contained in Pt 3.11 of the Act. In a criminal proceeding a trial judge is required, under s 137 of the Act, to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The admissibility of relationship evidence is not governed by the special rules developed at common law in relation to similar fact evidence, or by the operation of ss 97 and 98 of the Act which require not only that the evidence have “significant probative value” before it may be admitted but also that its probative value “substantially outweigh” any prejudicial effect it may have upon the defendant - s 101(2) of the Act.
102 It follows that in our view the test which governs the admissibility of “similar fact evidence” laid down in Pfennig had no application to the admissibility of the evidence concerning the coffee incident. Mr Tilmouth’s submission that the evidence did not satisfy that test therefore fails in limine.
103 There is, however, another obstacle which stands in the path of Mr Tilmouth’s submission that the evidence concerning the coffee incident was inadmissible. We are of the view that there was, in fact, ample evidence to support the conclusion that, assuming Conway had put a drug in his wife’s coffee, that drug was heroin.
104 That evidence included:
· Conway’s claim that on the morning of the coffee incident, as he was tipping his coffee into the sink because of its bitter taste, he had found two pieces of foil on the windowsill of the kitchen. The foils, when tested, showed traces of heroin;
· Conway’s conduct in having told a number of police colleagues during the next few days of having found the foils in his wife’s kitchen. For reasons which were never made clear he linked that finding to an observation (to the police to whom he spoke) that his wife had made coffee which had tasted bitter, and that he had tipped it out in the kitchen sink. In other words, it was Conway who drew a link between heroin and coffee. And it was Conway who drew that link with the events of the morning of the 25 April 1997;
· McFie’s conduct in having purchased from Ulanowicz in April 1997 three caps of heroin for $150, and in having asked Ulanowicz whether the heroin could be ingested by being put it into a drink;
· The packaging of the heroin supplied by Ulanowicz to McFie being consistent with the foils found by Conway in his wife’s the kitchen on the morning of the coffee incident;
· The subsequent discussion between McFie and Williams, in the presence of Williams’ brother, Redfern, sometime after 11 April 1997 concerning heroin, and in particular McFie’s having asked Redfern “how she could take this stuff”. The answer given:
“Well, it can be drunk, smoked or injected. Other ways too but I can’t – I don’t know how to do those.”;
· Evidence led from an expert that heroin would dissolve in coffee, and would leave a bitter taste;
· The answers given by Conway during the course of his record of interview with the police on 7 May 1997 (exhibit 60) in which Conway was questioned about the events of the morning of 25 April 1997, and introduced the coffee incident in answer to those questions:
“Q370 So what happened?
A She made a cup – she made a cup of coffee for herself and one for me and I sat down in the lounge room – we both sat down in the lounge room, and she sat on her chair, I sat on the lounge – the long lounge thing, and, you know, the coffee tasted sour. I have black coffee. I didn’t – I couldn’t understand why it was sour. I thought she probably put something – probably put salt in it or something by mistake because I’ve done that myself, I put salt in instead of sugar without realising.
Q371 But you don’t have sugar, do you?
A No, I don’t.
Q372 So why would she add anything other than coffee to a cup?
A No, she’s done that on occasions, even her mother puts sugar in my coffee. Doesn’t matter how many times I tell her, she makes the mistake.
Q373 Yeah
A But anyway I had a couple of mouthfuls of the coffee, I said it tasted a bit sour. Rike went down to the – down to the – Rike went to the toilet so I went out and made myself another cup and the second cup – that cup tasted fine so I didn’t think anything of it. While I was in the kitchen – there’s a COPS entry that I put on – on the computer, ah, the following day. Do we have to go into this?
Q374. As I said to you earlier, you do not have to answer any questions that you don’t want to.
A I don’t even know whether this is anything or not. I found two pieces of paper that had been folded fairly tightly on the window sill so I unfolded and I saw them. They looked strange to me, I’d never seen them in that house before. I’ve seen something similar in other areas before. I folded them up, put them in my pocket and I didn’t think any more of it. Just put them in my pocket and let it go at that. Went back and sat down in the lounge room. I knew Rike had had a couple of drinks.”
Subsequently the interviewing officers drew Conway’s attention to the entry in the deceased’s diary for 25 April 1997 (exhibit 28). The questioning then proceeded:
“Q468 Did she say to you that you drugged her?
A She told me later – she told me – she said to me later that day that – no the next day – don’t remember. She made comment sometime later about the fact that I tried to drug her.
Q469 Sometime later, not this day?
A I don’t remember, I don’t think it – no, it wasn’t that day.
Q470 And what was that conversation about?
A I – I – I don’t remember …
Q471 Do you recall when it was?
A No.
Q472 Do you recall where you were when she made this allegation that you drugged her?
A Oh yes, it was over the phone, she made mention of it – to me over the phone. I don’t remember – I don’t remember exactly when it was.
Q473 Do you recall – was it before Anzac Day or afterwards, do you recall?
A No it was after Anzac Day, because it was after the – after that particular morning.
Q474 Right. And what was her response to the fact that when she said that you drugged her?
A Well, why would I do that I had no reason – no reason to drug her.
…
Q492 All right. Well I’ll just go on here a little bit then, as I said, she said that – you said the coffee tasted funny, she tipped it out, and she saw that there was froth inside the cup. She said to you that – at that time, at that day, that she – “That you drugged her,” and you said “No”. You told her “To go lie down,” so she did. She said – I’ve – I’ll read it verbatim, sorry. “You said “No, go and lie down” so I did. Brought me a glass of water, had mouthful, tasted bitter like coffee, felt pocket of his jacket, felt the small bottle, asked him to show me bottle, finally showed me. It was a small brown bottle with dropper, said was nose drops. Eventually admitted putting – put it in drinks, wanted me to calm down so we could talk.” What do you have – you don’t have to say anything, but if you wish to – do you wish to – comment on that – that writing?
A No, I’ve got no idea. I don’t take …
Q493 Did that happen?
A No.
Q494 Did you ask her to go and lie down?
A No, not that I recall.
Q495 Is it possible you asked her to go and lie down, but you don’t recall?
A No I don’t – I – no we didn’t.
Q496 All right. Did you go and take her a glass of water while she was in bed?
A No. No she didn’t – didn’t go and lie down …
Q497 All right.
A … we were sitting – as I said, we were sitting in the lounge room for the full time.
Q498 Did she – well either in the bedroom or in the lounge room, did she feel your jacket and did you show her a brown bottle with a dropper?
A No, I don’t have a brown bottle with a dropper.
Q499 Did you tell her that you’d put something in the drinks to calm her down, so that we could talk?
A No. I don’t have anything that I could use in that respect anyway.
Q500 Right. So all of this writing dated the Twenty Fifth of the Fourth Nineteen Ninety Seven is lies?
A I don’t like to use that word, it’s …
Q501 Okay.
A … I don’t believe it to be true.
Q502 Okay. You don’t believe that to be true?
A No.
Q503 Why do you think she’d write it? Why do you think she’d make a diary of that?
A I don’t know – may – I don’t know.
Q504 Okay. She also told a number of people about this incident, her mother, some neighbours, her sister …
A Mm’m.”; and
· The deceased’s complaints to her neighbours, and to Constable Dix regarding Conway’s having put a drug into her coffee on the morning of the coffee incident. The deceased told Constable Dix that her coffee had a bitter taste to it, and told Mrs Skellern that she could see some undissolved white powder at the bottom of the cup.
105 From this evidence as a whole, it was plainly open to the jury to have concluded that if Conway put a drug into his wife’s coffee on the morning of the coffee incident, that drug was heroin.
106 If the evidence was sufficient to have enabled the jury to come to such a conclusion, Mr Tilmouth’s submission that the evidence concerning the coffee incident ought not to have been admitted cannot be accepted. As he properly conceded, the trial judge was entitled to find that, if the jury concluded that Conway had put heroin in his wife’s coffee on the morning of 25 April 1997, there was no rational view of that conduct consistent with Conway’s innocence on the charge of having murdered his wife. The evidence concerning the coffee incident was therefore admissible even if it be accepted, contrary to our view, that the principles laid down by the High Court in Pfennig governed the admissibility of that evidence.
107 The evidence concerning the coffee incident was admissible because it was relevant to the issues in the trial. More than that, it was highly probative. Whatever prejudicial effect it may have had upon Conway was substantially outweighed by its probative value. The evidence was capable of being viewed by the jury as evidence of an act of preparation for the murder. It also cast light upon the relationship between Conway and the deceased in the days immediately preceding her murder, and bore upon the existence of a motive on his part to have the deceased killed.
(b) The coffee incident as hearsay.
108 The next issue to be addressed is whether the trial judge erred in permitting the various neighbours to whom the deceased had spoken about the coffee incident, and Constable Dix, to give evidence of what the deceased had said.
109 It is possible to construct a somewhat theoretical argument to the effect that the statements made by the deceased were in truth original evidence, and not hearsay. This would entail treating those statements as being relevant not as evidence of the truth of their contents, but rather as evidence of the fact that they were made. Examples drawn from the common law of statements being treated as original evidence would include statements as facts in issue, “operative words”, statements accompanying or explaining a relevant act or event, and statements relevant to prove the existence of a contemporaneous physical state, or state of mind – see Cross on Evidence Australian edition pars [31085] to [31105]. See also Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970; Ratten v The Queen [1972] AC 378 at 388; R v Blastland [1986] AC 41 at 56-7; Walton v The Queen (1989) 166 CLR 283 at 288-9; and R v Frawley. Note in particular s 72 of the Act which provides:
“The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”
110 We consider that the statements made by the deceased concerning the coffee incident were relied upon as evidence of their truth, and not merely to establish the fact that the words were used. That was clearly also the opinion of the trial judge. The Crown did not seek to dissuade his Honour from that view. To the extent that the deceased’s statements concerned her “health, feelings, sensations, intention, knowledge or state of mind”, and might therefore be thought to fall within s 72 of the Act, they were not for that reason relevant to any issue in the trial. It was what she told others that her husband had said and done on the morning of the coffee incident which was significant, and then only in so far as what she said was true.
111 The deceased’s statements were, therefore, hearsay, and not original evidence. Section 59 of the Act renders inadmissible evidence of a previous representation made by a person to prove the existence of a fact that the person intended to assert by the representation. There are, of course, a number of exceptions to the hearsay rule contained in Pt 3.2 of the Act.
112 The only exception to the hearsay rule relied upon by the Crown at trial was that contained in s 65(2). Section 65 relevantly provides as follows:
“65 (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
…
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) made in circumstances that make it highly probable that the representation is reliable; or
…”
113 Section 67(1) of the Act imposes notice requirements upon the operation of s 65(2). However, the Court may direct that the exception to the hearsay rule contained in s 65(2) may be invoked notwithstanding the Crown’s failure to have given the requisite notice.
114 The material before us does not disclose whether in the present case the Crown gave the accused any formal notice of its intention to rely upon s 65(2). No point as to the absence of any such notice was taken at the trial, and the point was not raised on the appeal. It is difficult to see how Conway could have suffered any prejudice even if there had been a failure on the part of the Crown to have given the requisite notice. It was plain from the depositions that the Crown proposed to rely upon this evidence. It was accepted that the evidence was inadmissible unless it could be brought within an exception to the hearsay rule. The Crown signalled from the outset its intent to rely upon s 65(2) of the Act. In these circumstances, nothing further need be said regarding the possible absence of any notice.
115 The real issue before this Court is whether the conditions set out in s 65(2) were met so that this evidence could be led. The trial judge, in his ruling that the evidence was admissible, stated that he was satisfied that the requirements of both s 65(2)(b) and s 65(2)(c) had been met. Mr Tilmouth submitted on behalf of Conway that this ruling had been incorrect, and that none of the conditions required by the Act to enable this evidence to be led had been satisfied.
116 Section 65(2)(b) provides that the hearsay rule does not apply to evidence of a previous representation that is given by a person “who saw, heard or otherwise perceived” the representation being made if the representation was:
“(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication;”
117 Mr Tilmouth submitted that the statements made by the deceased to her neighbours and to Constable Dix concerning the coffee incident did not meet the requirements of s 65(2)(b). The statements were not made “when or shortly after the asserted fact occurred”. Moreover, they were not made “in circumstances that make it unlikely that the representation is a fabrication”.
118 Section 65(2)(c) provides for an exception to the hearsay rule if the representation were:
“(c) made in circumstances that make it highly probable that the representation is reliable.”
119 Mr Tilmouth submitted that the statements made by the deceased were not made “in circumstances that make it highly probable that the representation is reliable”.
120 Section 65(2)(b) of the Act appears to have had its origins in one form of what is known at common law as res gestae – see Cross On Evidence pars [37050] to [37080]. The res gestae doctrine permitted an exception to the hearsay rule where the words spoken were so closely related to the matter being proved as to be inseparable from it. The doctrine was restrictively interpreted by the courts, almost to the point of bringing the principles which lay behind it into disrepute.
121 To illustrate the point, it is worth considering the classic case of R v Bedingfield (1879) 14 Cox CC 341. There it was held that the prosecution could not lead evidence of what was said by a woman who emerged from a room with her throat cut because there was not sufficient contemporaneity between the incident in question, which had occurred seconds earlier, and what she said about it. Presumably the evidence would have been admissible had she described her throat being cut as that was occurring.
122 Whether or not Bedingfield was correctly decided (and there is a strong body of opinion to suggest that it was not) it gives some flavour of the strictness with which the res gestae doctrine was, and to some extent still is, applied at common law. See Ratten v The Queen; Vocisano v Vocisano (1974) 130 CLR 267 at 273.
123 The word “when” in s 65(2)(b) of the Act encompasses this notion of strict contemporaneity. The introduction of the expression “shortly after” is, however, a significant departure from traditional doctrine.
124 It is necessary to consider in some detail the evidence concerning the statements made by the deceased in order to determine whether, as Mr Tilmouth submitted, the trial judge erred in holding that these statements were made “shortly after” the coffee incident had occurred.
125 Turning first to Mrs Skellern, her evidence was that she had a telephone conversation with Mrs Conway regarding the events of the morning of 25 April 1997. She said that the deceased had described that incident as having occurred “two days” before the telephone call took place.
126 Mrs Dillon said that at about 5.00pm on either Friday 25 April or Saturday 26 April 1997 (she was not certain which), while reversing out of her driveway at 31 Gollan Street she noticed Mrs Conway’s son, Alexander, on the front lawn of a neighbour’s house. Mrs Conway walked across and spoke to Mrs Dillon. Mrs Dillon said that Mrs Conway had looked terrible. She had big bags under her eyes and was really pale. Mrs Dillon had known her for many years. She knew that Mrs Conway had a drinking problem, but she had never seen her look like that before. Asked by Mrs Dillon whether she had been “on the grog” all night, Mrs Conway had said no, that John had put something in her coffee, and that she had been “off her face for about three or four hours”. As they were talking, Mrs Dillon saw Conway come out of the back door of the house. He looked across, saw Mrs Dillon, and then just proceeded into the backyard.
127 Subsequently, Mrs Conway rang Mrs Dillon “a couple of days later”. They spoke again about the coffee incident. Mrs Dillon said that she told the deceased to tell the police about that incident. On Sunday 27 April 1997, presumably in response to that call, Mrs Conway in fact telephoned Constable Dix, and reported the matter to him.
128 The general tenor of Mrs Dillon’s evidence strongly suggests that the first conversation concerning the coffee incident took place on the afternoon of Friday 25 April 1997, and not on the next day. The deceased’s comment by way of explanation for her appearance, to the effect that she had been “off her face for about three or four hours” clearly supports that conclusion. So also does the presence of Conway at the house. The fact that the deceased telephoned Constable Dix on the Sunday, after she had spoken to Mrs Dillon “a couple of days” after the incident, provides still further support for that conclusion.
129 Mrs Noordhof had a telephone conversation with the deceased which she erroneously thought had taken place at about the time when the custody order in favour of Mrs Conway was made. That order was in fact made on 23 April 1997, two days before the coffee incident. It was during the course of the telephone conversation that the deceased told Mrs Noordhof about her coffee having been drugged. Mrs Noordhof was unable to say precisely when this conversation took place. Her “impression” was that it was “very close to the time of the incident”.
130 Constable Dix was telephoned by the deceased at about 9.30 pm on 27 April 1997.
131 The trial judge was satisfied that each of these statements was made “shortly after” the coffee incident had occurred, within the meaning of s 65(2)(b) of the Act.
132 In our view, his Honour was plainly entitled to come to the conclusion that the statement made by the deceased to Mrs Dillon was made “shortly after” the coffee incident had occurred. Indeed, it is difficult to see how it could be said that a statement of the kind made by the deceased on the afternoon of 25 April 1997 was not made “shortly after” the events of that morning.
133 The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made “when” or “shortly after” the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression “shortly after” makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae.
134 In R v Mankotia [1998] NSWSC 295, Sperling J had occasion to deal with the meaning of the expression “shortly after” in s 65(2)(b) of the Evidence Act 1995 (NSW). His Honour said:
“The phrase “shortly after” is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to taken into account but – as in the case of normative judgments generally – it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase “shortly after” must be the actual time that has elapsed and whether that fits the ordinary usage of the expression “shortly after” in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind”
135 These observations were later cited with approval by Levine J in R v Polkinghorne [1999] NSWSC 704. We consider that both Sperling J and Levine J were correct in their analysis of the meaning of the expression “shortly after” in the context in which it appears.
136 It is unnecessary, having regard to our finding in relation to Mrs Dillon, to consider whether or not the deceased’s statements to Mrs Skellern, Mrs Noordhof and Constable Dix were made “shortly after” the coffee incident. Those statements were, in substance, similar to that made to Mrs Dillon. If Mrs Dillon’s testimony was admissible, there could be no real prejudice to Conway from the admission into evidence of what was, in essence, the same account as that given by Mrs Dillon also given by those other witnesses.
137 The second condition which must be met before evidence may be led pursuant to s 65(2)(b) is that the representation must have been made in circumstances that “make it unlikely that it is a fabrication”.
138 In Mankotia, Sperling J observed in relation to this condition:
“The second condition prescribed by s 65(2)(b) is that the representation was made in circumstances that make it unlikely that the representation is a fabrication. The test is not one of reliability at large. It is a narrower test. First, it is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial. Secondly, it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances.
I would construe ‘circumstances’ to mean the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c).”
139 In Polkinghorne Levine J drew attention to the similarities between the language employed by the legislature in the second condition prescribed by s 65(2)(b), and what Lord Wilberforce had said in Ratten v The Queen at 388F to 390A. It is worth repeating what Lord Wilberforce had there said:
“The expression ‘res gestae’, like many Latin phrases, is often used to cover situations insufficiently analysed in clear English terms. In the context of the law of evidence it may be used in at least three different ways:
1. When a situation of fact (e.g. a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife, without knowing in a broader sense, what was happening. Thus in O'Leary vThe King (1946) 73 CLR 566 evidence was admitted of assaults, prior to a killing, committed by the accused during what was said to be a continuous orgy. As Dixon J. said at p 577:
‘Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.’
2. The evidence may be concerned with spoken words as such (apart from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, i.e., are the relevant facts or part of them.
3. Ahearsay statement is made either by the victim of an attack or by a bystander ‑ indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae. A classical instance of this is the much debated case of Reg. v. Bedingfield (1879) 14 Cox CC 341, and there are other instances of its application in reported cases. These tend to apply different standards, and some of them carry less than conviction. The reason, why this is so, is that concentration tends to be focused upon the opaque or at least imprecise Latin phrase rather than upon the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been victims of assault or accident. The first matter goes to weight. The person testifying to the words used is liable to cross‑examination: the accused person (as he could not at the time when earlier reported cases were decided) can give his own account if different. There is no such difference in kind or substance between evidence of what was said and evidence of what was done (for example between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.
The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression ‘res gestae’ may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges’ rulings.”
140 In Polkinghorne Levine J observed that these passages from Lord Wilberforce’s speech had been cited, and with apparent approval, by Barwick CJ in Vocisano. Levine J also observed that the rigidities of Bedingfield might now be regarded as obsolete. A spontaneous exclamation made within a short time of an incident to which it relates would ordinarily be “unlikely to be a fabrication”. That is a proposition with which we would not disagree.
141 Mr Tilmouth submitted that the trial judge had erred in finding that the circumstances were such that it was “unlikely” that what the deceased had said about the coffee incident was “a fabrication”. We are unable to accept that submission.
142 The deceased’s complaint to Mrs Dillon appears to have been made within a few hours of her having been drugged. Her ability to recall with accuracy the events of that morning may well have been impaired. However, the test prescribed by s 65(2)(b) of the Act requires only that the Crown show that the circumstances are such that it is “unlikely that the representation is a fabrication”. That test imposes a different, and we think significantly lower, threshold of admissibility than does the requirement in s 62(2)(c) that it be shown that it is “highly probable that the representation is reliable”.
143 We can see nothing arising out of the circumstances in which the deceased spoke to Mrs Dillon which suggests that what the deceased said was, or may have been, fabricated. What the deceased said about having been drugged by her husband was not so inherently improbable as to make it seem that it may have been concocted. It must be remembered that the deceased had been granted custody of her son just two days earlier. She had no reason, when speaking to Mrs Dillon, to fabricate a story of having earlier that day been drugged by her husband, because she had no need to seek to bring about a change of the status quo.
144 As before, given that the deceased’s statement to Mrs Dillon was admissible pursuant to s 65(2)(b) of the Act it is unnecessary to consider whether statements to her other neighbours and to Constable Dix, satisfied the second condition set out therein. We should say, however, that we can discern no error in the trial judge’s reasoning that the second condition in s 65(2)(b) was met as it applied to those other witnesses.
145 We consider, however, that the trial judge erred in holding that the deceased’s statements were admissible pursuant to s 65(2)(c) of the Act. It difficult to see how the deceased’s statements can be said to have been made in circumstances that make it “highly probable” that they were “reliable”. The deceased was plainly confused, and possibly still disoriented, when she spoke to Mrs Dillon. Her recollection of the events of the morning of 25 April 1997 differed each time she recounted the details to a different neighbour. Although in Mankotia Sperling J considered that the word “circumstances” in s 65(2)(c) precluded consideration being given to matters such as “inconsistent representations” when determining “reliability”, we respectfully disagree. We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable.
146 The requirement in s 65(2)(c) of the Act that it be “highly probable” that a representation be “reliable” in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating “reliability” alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule.
147 It is true that in Pollitt v The Queen (1992) 174 CLR 558 Mason CJ favoured the development of an exception to the hearsay rule based solely upon “reliability”. However, the High Court eschewed that approach in Bannon v The Queen (1995) 185 CLR 1, and there are plainly dangers associated with it.
148 The trial judge’s error in having determined that the conditions under s 65(2)(c) were met does not, however, mean that there has been a miscarriage of justice. That is because the evidence in question was properly admitted in any event pursuant to s 65(2)(b).
(c) The diary entry as hearsay.
149 Mr Tilmouth submitted in relation to the diary entry that s 65(2) of the Act could not, as a matter of law, justify its reception. That was because the evidence concerning that entry was not given by a person “who saw, heard or otherwise perceived” the representation being made. He also relied separately in relation to the diary entry, upon the Crown’s failure to satisfy the conditions set out under ss 65(2)(b) and 65(2)(c).
150 We are of the view that Mr Tilmouth’s submission must be accepted. The evidence concerning that entry was not given by a person who “saw, heard or otherwise perceived” the representation being made. A fundamental condition of admissibility was not met. Although both Mrs Dillon and Mrs Noordhof had been shown the diary by the deceased prior to her murder on 3 May 1997, neither had seen her make the entry for 25 April 1997. It was not sufficient, in our view, for Mrs Dillon and Mrs Noordhof to have read that entry, whether in the presence of the deceased, or otherwise.
151 Section 65 of the Act distinguishes between evidence which may be admitted pursuant to s 65(2) (when tendered by the Crown) and evidence which may be admitted pursuant to s 65(8) (when tendered by an accused). In 1998, at the time this trial was being held, s 65(8) provided that the hearsay rule did not apply to:
“(a) oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document tendered as evidence by a defendant so far as it contains a previous representation.”
152 In other words, s 65(8), at that stage, distinguished between oral evidence of a previous representation (which could only be admitted in the circumstances specified) and a representation contained in a document, which was not subject to those limitations.
153 Section s 65(2) has never distinguished between oral evidence of a previous representation, and a document containing such a representation. The contrast between that section and s 65(8) could hardly be stronger. It appears that when the Act was enacted in 1995, Parliament intended that a representation which was contained in a document would not fall within the scope of s 65(2), though why that should be so is by no means obvious. Whether or not that was Parliament’s intent, such a representation could only fall within the scope of the provision if it was “seen”, or “otherwise perceived” being made.
154 By s 13 of the Law and Justice Legislation Amendment Act 1999 (Cth), which came into effect on 13 October 1999, s 65(8)(a) was amended by omitting the reference to the word “oral”. It is not at all clear why that amendment was thought necessary. Had that amendment been in force at the time of the present trial there would have been considerable difficulty in accepting Mr Tilmouth’s submission that s 65(2), as it stands, does not apply to any representation contained in a document. Whether or not s 65(2) should be so construed, however, it certainly cannot render admissible an entry in a document where that entry was neither seen nor otherwise perceived being made.
155 It does not follow that the trial judge’s error in having permitted the diary entry to be tendered has resulted in a miscarriage of justice. That diary entry does little more than repeat, in similar terms, the account of the coffee incident given by the deceased to her neighbours and to Constable Dix.
156 Moreover, the diary entry was before the jury in any event. Conway was questioned extensively in his interview on 7 May 1997 about the events of the morning of 25 April 1997. The diary entry was read to him by the interviewing officers in its entirety. Conway claimed that what the deceased had there written was untrue. Mr Pappas did not object to this evidence being placed before the jury. Presumably this was because he was, by that stage, aware that the evidence concerning the coffee incident was to be received. Conway would, of course, deny the truth of what the deceased had said regarding that incident. It was essential, therefore, that Conway’s earlier denials, as set out in his record of interview, be before the jury. The contents of the diary entry, which sparked those denials, had to be before the jury for that reason.
157 The trial judge’s error in having permitted the diary entry to be tendered as an exhibit did not, in the circumstances, lead to a miscarriage of justice. It did not deprive Conway of an opportunity fairly open to him to be acquitted.
(d) The trial judge’s directions concerning the coffee incident.
158 We turn finally to Mr Tilmouth’s submission that the trial judge had failed to direct the jury adequately concerning the use which they might properly make of the evidence concerning the coffee incident.
159 It is clear that there are some circumstances in which there will be a danger that, unless instructed to the contrary, a jury may treat relationship evidence as if it were tendency evidence. In Gipp v The Queen there are passages in the judgments of all members of the Court which support this conclusion. For example, Gaudron J said at 112:
“…where evidence of blameworthy conduct or of an offence committed on some other occasion is admitted because it is relevant to some subsidiary issue, the trial judge must instruct the jury as to the limited use that they may make of that evidence.”
160 Gaudron J referred in this regard to BRS v The Queen (1997) 191 CLR 275 at 293-4 per Toohey J; at 301-2 per Gaudron J; at 305-310 per McHugh J and at 326-332 per Kirby J.
161 Kirby J noted that even assuming that the evidence in Gipp was admissible, not just as relationship evidence, but as tendency evidence, the stringent warnings required by law as to the permissible use to which such evidence could be put had not been given, and that the convictions should be quashed.
162 Callinan J stressed the danger of admitting so called “background” evidence. His Honour said at 166:
“Its reception, and the need to explain its purpose and utility, have the tendency to introduce into a trial, particularly a criminal trial, undesirable complications …”
163 Callinan J continued at 168-9:
“I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such.”
164 McHugh and Hayne JJ, in their dissenting judgment, said at 132:
“No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts. But it was not tendered as propensity evidence. If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years [fn.See, eg, Pfennig v The Queen (1995) 182 CLR 461]. Moreover, as BRS v The Queen [fn. (1997)191 CLR 275] shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence [fn. BRS (1997) 191 CLR 275 at 305-306].”
165 We do not understand the High Court in Gipp to have established an inflexible rule that a trial judge must direct the jury, in every case where relationship evidence is led, that such evidence may not be used as tendency evidence. Only Gaudron J seemed to suggest that the relevant principle goes that far. The other members of the Court went no further than to hold that there will be a need for such a direction in any case in which there is a serious risk that the jury may treat relationship evidence as if it justified a process of propensity reasoning.
166 We do not consider that any such risk existed in the present case. As McHugh and Hayne JJ observed in Gipp at 133:
“In this case, the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges. No doubt, it would have been better if his Honour had gone further and expressly told the jury that, if they found that there was a previous or continuing history of incidents, they were not to use that finding to reason that the accused committed the offences charged. But his Honour’s failure to take that further step does not mean that he necessarily misdirected the jury or that the verdict is unsafe or unsatisfactory or that there has been a miscarriage of justice. Having regard to the conduct of the case and the rest of his Honour’s summing up, there is no reason to suppose that the jury might have used the general behaviour evidence as propensity evidence. Neither counsel nor the judge suggested that course.”
167 We consider that the evidence concerning the coffee incident could not be regarded as “similar fact” evidence in the traditional, and accepted, sense in which that expression is understood. The jury would, in our opinion, have understood the limited basis upon which that evidence had been led. It must be remembered that the jury were carefully directed by the trial judge as to the principles governing circumstantial evidence, and the process by which inferences could be drawn. Mr Pappas did not seek any redirection regarding these matters. It is important to note that he did not ask the trial judge to direct the jury that they were not to engage in propensity reasoning when considering the evidence concerning the coffee incident.
168 It was made perfectly clear to the jury that the evidence in question was led in order to support the Crown’s contention that Conway’s conduct in putting heroin into the deceased’s coffee was an act of preparation for the murder of the deceased. The jury were also told that the evidence went to motive.
169 We consider it to be almost fanciful to suggest that the jury may have reasoned that merely because Conway was prepared to put heroin into the deceased’s coffee on the morning of 25 April 1997, he was therefore by disposition likely to have hired Steer and Williams to inject heroin into her arm a week or so later. Although the evidence concerning the coffee incident was led with a view to persuading the jury that Conway had engaged in conduct preparatory to the murder, the process of reasoning by which they would come to that conclusion was not propensity reasoning.
170 We do not accept Mr Tilmouth’s submission that the jury should have been told that they could not use the evidence of the coffee incident as evidence against Conway unless they were satisfied beyond reasonable doubt that the drug which was put in the deceased’s coffee was heroin. In Shepherd v The Queen (1990) 170 CLR 573, the High Court rejected the contention that in a case resting upon circumstantial evidence the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. It was not necessary in order to reach a conclusion of guilt for the jury to be satisfied beyond reasonable doubt that the substance administered by Conway was heroin.
171 It follows that grounds 9, 10 and 11 must be rejected.
The Heldon tapes and other “relationship evidence”
172 The principles to which we referred earlier when dealing with the admissibility of the evidence concerning the coffee incident as “relationship evidence” are relevant too when dealing with the challenge to the admissibility of exhibit 64 (“the Heldon tapes”). Those principles also apply to the other relationship evidence to which objection was taken.
173 Dealing first with the Heldon tapes, it will be recalled that they had been located in the roof cavity of 35 Gollan Street during a search conducted by police on 28 July 1997. Thirty-nine tapes were seized, but not all were transcribed. Conversations considered to be relevant were copied onto three tapes. These were transcribed, and tendered. The tapes were recorded by McFie during a two month period between 11 February 1997 and 4 April 1997. The vast majority of the conversations on the tapes which were played to the jury were between McFie and the deceased. There were four tapes only of conversations to which Conway was a party.
174 Mr Pappas submitted at the trial that the tapes should be excluded because they were irrelevant. He also submitted that they should be excluded in the exercise of the trial judge’s discretion. His Honour rejected these submissions.
175 It is clear that the Crown was permitted to lead this material because it:
· demonstrated that Conway had lied repeatedly in his record of interview when he (a) denied ever having had a sexual relationship with McFie, (b) claimed that he had always been, and still was, devoted to the deceased, and (c) said that McFie was the deceased’s closest friend; and
· demonstrated that Conway and McFie had, in the months leading up to the murder, acted together in order to discredit the deceased and to harm her case in the bitter custody wrangle which developed between herself and her husband.
176 The Crown did not rely upon the Heldon tapes as rebutting the evidence of good character led on behalf of the accused, and the jury were told this. The Crown specifically disavowed any reliance on the tapes as corroboration of the evidence of Steer and Williams, and this too was made clear to the jury.
177 Before we deal with Mr Tilmouth’s submission that the tapes were wrongly admitted, it is important to note that they were, if anything, significantly more damaging to McFie than to Conway. They showed McFie to have professed concern and support for the deceased while, at the same time, seeking to undermine her. In the context of a trial which, by the time it had been completed, was being conducted on the basis of a “cut throat defence”, the jury would have been entitled to view McFie as a liar and a hypocrite. Any damage done to McFie by the tapes would have assisted Conway in the eyes of the jury in the presentation of his defence. It is difficult to see how the admission of the tapes could have caused any prejudice to Conway.
178 Putting aside the question of prejudice, however, the Heldon tapes were, in any event, highly relevant and admissible. The tapes were relevant because they provided the jury with a clear picture of the relationship between Conway and the deceased shortly before her murder. They were properly to be viewed as “background” to the evidence which was more directly related to the circumstances in which she was killed. The jury were correctly told by the trial judge that the tapes could be used as “background” to that evidence.
179 The tapes were also relevant on an entirely separate basis. They demonstrated that Conway had lied repeatedly to the police when questioned by them, and that these lies concerned material matters. Conway’s lies were capable of being viewed as demonstrating a “consciousness of guilt”. The jury were directed in accordance with the principles laid down by the High Court in Edwards v The Queen (1993) 178 CLR 193 as to the use which they might make of such lies.
180 Mr Tilmouth contended that the jury were aware, at all times, of the fact that Conway had lied to the police. That fact had never been in dispute. He submitted that it had therefore been “unnecessary” for the tapes to be played. At the same time, he submitted, the tapes contained material which had been highly prejudicial to his client.
181 It may be true that it was “unnecessary” in a strict sense for the tapes to have been played merely to prove that Conway had lied to the police in his record of interview. However, the Crown was not confined to leading evidence which was “necessary” in order to prove its case. The admissibility of the tapes was to be determined by considering their relevance to the issues in the trial, and not whether it was “necessary”, as part of the Crown case, that they be tendered in evidence.
182 The Crown was entitled, in our view, to have the jury hear all of the evidence against which Conway’s explanation for having lied to the police should be considered. The context in which those lies were told was important. Moreover, Conway’s evidence-in-chief during the course of the trial did not sit well, in several respects, with what the tapes revealed.
183 The trial judge at no stage suggested to the jury that they could use what was on the tapes as “propensity evidence”. His Honour confined their use to questions of motive, and the lies told by Conway. Mr Pappas took no exception to the trial judge’s charge regarding the tapes. The trial judge was not asked to direct the jury that the tapes were not to be used as “propensity evidence”. The prospect that the jury might use the tapes in that way was so remote that no such direction was required to be given – cf BRS v The Queen; Gipp v The Queen.
184 Mr Tilmouth submitted that a substantial body of other “relationship evidence” led by the Crown should not have been admitted. That other relationship evidence consisted of evidence of violence and abuse directed by Conway towards the deceased in the months preceding the murder. We are unable to accept that submission. This evidence was given by a number of witnesses, many of them neighbours, who testified that there had been a bitter and violent relationship between Conway and the deceased throughout that period. There was evidence that both Conway and the deceased had complained to the police about each other, and that each had sought and obtained intervention orders. That evidence was admissible, in our view, in accordance with the principles governing “relationship evidence” discussed earlier in this judgment.
185 Although Mr Tilmouth also submitted that this other “relationship evidence” should have been excluded in the exercise of the trial judge’s discretion, we are not persuaded that the exercise of that discretion in any way miscarried.
186 Finally, we are unable to accept Mr Tilmouth’s submission that the trial judge failed to direct the jury adequately as to the use to which this other “relationship evidence” might be put. The limits upon the use of that evidence were clearly and accurately spelt out.
187 Grounds 4, 5, 6 and 8 must therefore be rejected.
The accomplice warning
188 It was accepted by all parties at the trial that the jury must be warned about the dangers of acting upon the uncorroborated evidence of Steer and Williams. It was an undisputed fact that they were, on their own evidence, accomplices. They had, after all, pleaded guilty to Mrs Conway’s murder, and had each been sentenced to a lengthy term of imprisonment.
189 Although the question whether a witness is, in fact, an accomplice is normally left to the jury (Davies v Director of Public Prosecutions [1954] AC 378) this is not always the case. There are circumstances where the trial judge may simply direct the jury that a particular witness must be so regarded – Cross On Evidence at par [15100]. That was, in effect, what the trial judge told the jury in this case.
190 The trial judge also told the jury that the sentences imposed upon Steer and Williams had been discounted significantly because of their willingness to cooperate in the prosecution of both Conway and McFie. He summarised the effect of the legislation which obliged a sentencing judge in the Australian Capital Territory to take into account the degree to which an accomplice had cooperated, or undertaken to cooperate, with law enforcement agencies. He also reminded the jury of the promise of cooperation on the part of each of Steer and Williams contained in a written undertaking to provide assistance. He told the jury that the relevant legislation provided that where a sentence had been reduced because of the person’s promised cooperation, the Court was required, in relation to the sentence, to specify the reason for the reduction of sentence, and the sentence that would have been imposed but for that promised cooperation. Finally, he told the jury that where a person does not cooperate in accordance with his undertaking, an appeal can be brought by the Director of Public Prosecutions, and the whole question of his sentence revisited.
191 To this point the trial judge’s summing up in relation to the issue of accomplice evidence was, in our view, unexceptionable. However, his Honour continued:
“So, what has been put to you is that there was a bit of a threat hanging over the heads of these two murderers. If they did not give evidence in accordance with their undertaking, they were liable to be brought back and their sentence reviewed in the light of their breach of their undertaking. But obviously that is not going to happen now, you may think, because they have cooperated, but their evidence has to be looked at in the light of the undertaking and in the light of the discount that they got. Nevertheless, they did nod the head, colloquial for pleading guilty, they did nod their head and they did get very substantial sentences, you may think …”
192 The trial judge then proceeded to give the jury the following warning:
“Now, the experience of the law is that the evidence of accomplices is frequently unreliable. Sometime accomplices seek to justify their own conduct and in so doing they often seek to shift the blame wholly or partly onto others. They construct untruthful stories which tend to exculpate them as the guilty ones and implicate the innocent. Accordingly the rule of law which applies in this case, is that you should consider it dangerous to convict either accused upon the evidence of those accomplices or one of them, unless it is confirmed in some material way by other evidence.
Now, you may think that these accomplices have not constructed untruthful stories that tend to exculpate them as the guilty ones and implicate these two accused. So the danger does not seem to be existent but, nevertheless, the law is you should approach the evidence of accomplices with great scrutiny and care. And, if having done that, you nevertheless regard their evidence as being trustworthy and reliable, totally reliable, then you can convict these two accused on that evidence alone. You do not have to have corroboration. If you find, having scrutinised the evidence of Steer and Williams, sufficient to justify convictions, well, you have to be fully convinced beyond reasonable doubt that their evidence is totally reliable.”
193 His Honour concluded:
“But I stress, the proper approach is that you should consider it dangerous to convict on the evidence of accomplices unless their evidence is confirmed in some material way. As I said, they do not seem to have done anything to try and shift the blame to anybody else, they have pleaded guilty and they frankly said what they have said to you. Williams has said, ‘There is no excuse for what I did.’ So the big risk you may think that I am warning you about with accomplices just does not exist in relation to these two. They have taken the blame and they have subjected themselves to the full sanction of the criminal law and they are serving their sentences.”
194 Not surprisingly, Mr Pappas took exception to this part of the trial judge’s charge to the jury. He submitted that the jury should be reminded of the need to scrutinise the evidence of Steer, in particular, with care. That was because Steer had promised to cooperate in accordance with a statement which he gave to the police a month after he was arrested, and not in accordance with the account which he gave to the police at the time of his arrest. The distinction, Mr Pappas submitted, was important because Steer had not, when initially arrested, told the police of his conversation with Conway in which Conway had castigated both he and Williams for their failure to make the killing look like a suicide.
195 Mr Pappas submitted that the particular danger to which the jury’s attention should specifically be drawn was that Steer, having implicated Conway directly in the murder only when he finally told the police about the “suicide conversation”, was under a continuing threat of a Crown appeal against his sentence if he did not adhere to that later and more incriminating version at the trial.
196 Mr Pappas also took exception to the trial judge’s comments concerning the absence of any danger that the accomplices would seek to minimise their role in the crime because of the way in which they had accepted responsibility for what they had done. He submitted that these comments had the effect of “watering down” the warning given to the jury by the trial judge to the extent of negating entirely its effect.
197 Mr Tilmouth submitted to this Court that by telling the jury that the “big risk” that they were being warned about in relation to accomplices did not exist in relation to Steer and Williams, the trial judge had, in effect, invited the jury to view Steer and Williams as witnesses whose evidence need not be viewed with any special caution.
198 We consider that had the trial judge allowed his directions to the jury to stand, without further clarification, Mr Tilmouth’s submission would have been difficult to reject.
199 However, the next morning the trial judge redirected the jury as follows:
“Remember I was telling you that you should be – you should identify Steer and Williams as accomplices because they were involved in the commission of the crime, and I was telling you something about the law of how juries are to treat the evidence of accomplices, and I told you that the experience of the law is that the evidence of accomplices is frequently unreliable because sometimes they seek to justify their own conduct and often seek to shift the blame wholly or partly onto others, and I told you that in that process they may construct untruthful stories that tend to exculpate them as the guilty ones and implicate the innocent and, accordingly, the rule is that you should consider it dangerous to convict an accused person upon the evidence of an accomplice unless it is confirmed in some material way by other evidence, and unless having scrutinised that evidence with great care, you came to the conclusion that their evidence standing alone was trustworthy and reliable and you were fully convinced beyond reasonable doubt that you could act upon it without it being confirmed by other evidence of a material kind.
I suggested to you that you may not think that it was any danger of the type that I had described as being the rationale for that treatment of accomplices' evidence because they had - these two accomplices had pleaded guilty and taken the blame and are doing the time for what they have done. At the end of the day of course it is for you to decide whether they are sufficiently reliable without any other evidence to satisfy you that what they did was done as a result of some contract between them and the two accused.
And if at the end of my direction to you yesterday I said anything to you to give you the impression that you did not need to have regard to the caution because of that matter, because they had taken the blame and were serving the sentences, that is a matter for you. I mean, I did not mean to give you the impression that you were not to take all that into account. You will take account of the danger that attaches to accomplices' evidence. And I repeat that you can convict on their evidence alone, but you should only do so if you are fully convinced beyond reasonable doubt that their evidence is totally reliable.”
200 Shortly thereafter the trial judge repeated his warning concerning the evidence of Steer and Williams:
“I just stress the proper approach is you have got to consider their evidence very carefully and it is dangerous to convict unless their evidence is confirmed in some material way.”
201 Mr Tilmouth submitted that notwithstanding the trial judge’s redirection, and the fact that Mr Pappas took no exception to that redirection, and sought no further direction regarding the dangers of accomplice evidence, the overall effect of what his Honour had said to the jury regarding accomplice evidence was inadequate. He submitted that the trial judge had failed to bring home to the jury the very real danger that both Steer and Williams, having received the benefit of substantially reduced sentences by reason of their promised cooperation were, in effect, “locked in” to what they had told the police with the threat of an increased sentence hanging over their heads if they did not “swear up”.
202 In considering this submission, it is necessary first to note the somewhat remarkable fact that the entire trial was conducted without any reference whatever being made to the provisions of the Act which deal with accomplice evidence. It seems to have been assumed throughout the trial that the common law principles governing accomplice warnings and corroboration were those which were applicable. However, that was not the case.
203 It is necessary to set out in full the provisions of the Act which govern corroboration and warnings. They are:
“PART 4.4 – CORROBORATION
Corroboration requirements abolished
164. (1) It is not necessary that evidence on which a party relies be corroborated.
(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.
(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:
(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.
PART 4.5 – WARNINGS
Unreliable evidence
165. (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;
(b) identification evidence;
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e) evidence given in a criminal proceeding by a witness who is a prison informer;
(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;
(g) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.”
204 Although s 165(3) provides that a trial judge need not comply with s 165(2) if “there are good reasons for not doing so”, we are in no doubt that this was a case where warnings of the type specified in s 165(2) were required to be given. While Mr Pappas did not, in accordance with that subsection, “request” that any such warnings be given (presumably because he, along with everyone else, had overlooked the fact that there were provisions in the Act which governed the way in which the trial judge was required to deal with accomplice evidence) it was understood throughout the trial that the jury would be given the traditional directions concerning accomplice evidence. It is clear that Mr Pappas wanted those directions to be given. It is also clear that the Crown accepted that the trial judge was obliged to give those directions.
205 The result was that the trial judge directed the jury as to the dangers of accomplice evidence in what might be regarded as the traditional manner. The direction given did not accord with the requirements of the Act. On one view, it exceeded those requirements. There may, however, be a need in a particular case for a trial judge to give a stronger warning than that which is expressly required under s 165(2) of the Act – see Lane v The Queen (1996) 66 FCR 144 at 147. That is a matter to which we shall return.
206 Once the jury had been redirected by the trial judge as to the dangers of acting on the uncorroborated evidence of Steer and Williams, the jury were, in our view, warned adequately that the evidence of those witnesses “may be unreliable”. The warning that the trial judge gave met all of the requirements of s 165(2)(a) of the Act. That section does not, of course, require that the literal form of the words contained therein be used by the trial judge – s 165(4).
207 The jury were also, in our opinion, informed adequately, in a manner which accorded in substance with the requirements of s 165(2)(b) of the Act, of the matters that might cause the evidence of Steer and Williams to be unreliable. In addition to what his Honour told the jury in the passages set out above, he had, earlier in the trial, used the expression “Sword of Damocles” when referring to the threat of a Crown appeal against the sentences imposed upon Steer and Williams if they did not adhere to their statements implicating Conway and McFie. The concept of the “Sword of Damocles” was canvassed thoroughly in cross-examination of the accomplices. It was dealt with also in counsel’s addresses. The jury could hardly have failed to understand the danger that an accomplice might adhere to a story implicating others because of the threat of a Crown appeal against sentence. They would readily have appreciated that the fact that the accomplice had already been convicted, and sentenced, did not necessarily diminish this danger – cf R v Kendrick [1997] 2 VR 669 at 705.
208 We are also satisfied that the jury were warned, in a manner which accorded, in substance, with the requirements of s 165(2)(c) of the Act, of the need for caution in determining whether to accept the evidence of Steer and Williams, and the weight to be given to that evidence. If anything, the trial judge’s repeated use of the term “dangerous” when referring to their evidence rather than the less potent formula set out in s 165(2)(c), might be regarded as having been unduly favourable to the accused.
209 It follows that we consider the trial judge’s warnings to the jury concerning the evidence of Steer and Williams to have been, in all the circumstances, adequate.
The directions regarding corroboration
210 The trial judge warned the jury on a number of occasions that it was dangerous to act upon the evidence of Steer and Williams unless that evidence was “confirmed in some material way”. He then proceeded to direct the jury regarding the nature of corroboration. His Honour said:
“Corroboration is evidence from a source independent of the accomplices, Steer and Williams, which implicates the accused in the crime by tending to show not only was the crime committed but it was these accused who were a party to it. Later I will go through the evidence, and the Crown has referred to it this morning, but I will go through the evidence which seems to me you might regard as corroboration. Whether you do is a matter for you. You are the judges of the facts and you have to find this other material to be available to you, but that is what corroboration is. It is evidence which tends to give some verisimilitude, if you do not mind the word, to what Steer and Williams have said by tending to show not only was the crime committed, but these two accused were part of it.”
211 The trial judge’s direction was substantially in accord with the direction traditionally given in common law jurisdictions. That direction appears to be based upon the observations of Lord Reading CJ in R v Baskerville [1916] 2 KB 658 at 665, and 667. His Lordship there observed:
“What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it … We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”
212 Lord Reading CJ’s formulation has been cited with approval on countless occasions – see for example: Ridley v Whipp (1916) 22 CLR 381 at 392; R v Kerim [1988] 1 Qd R 426; R v Kalajzich(1989) 39 A Crim R 415 at 426-428; Doney v The Queen (1990) 171 CLR 207 at 211; BRS v The Queen at 283-4; R v Pisano [1997] 2 VR 342 at 347 and R v Kendrick.
213 Mr Pappas did not seek any redirection arising out of the trial judge’s description of the general nature of corroboration. That was not surprising. In his summing up his Honour correctly directed the jury that in order for evidence to constitute corroboration it must be independent of the person whose evidence was to be corroborated, and it must also implicate the accused in the commission of the offence charged.
214 The jury were also told that in order to constitute corroboration evidence need not implicate the accused directly in the commission of the crime, but might do so indirectly as circumstantial evidence. That accords with both Kalajzich and Doney.
215 Although the trial judge did not say so expressly, he made it perfectly clear that while an item of evidence considered in isolation might not constitute corroboration, that evidence might be viewed as such when taken in conjunction with other evidence. His Honour’s direction in that regard accords with the position at common law – see Kalajzich at 429-434.
216 The jury were also told by the trial judge that it was his duty, as a matter of law, to tell them what evidence was capable of constituting corroboration, and that it was their duty to determine whether or not they regarded it as such. That direction accords with long established practice – see Cross on Evidence par [15245]. Recent authority suggests that it should no longer be viewed as the preferred method of describing the different tasks to be performed by a trial judge and by the jury – see Kendrick at 707. However, nothing turns upon that point in the present case.
217 Any proper consideration of the trial judge’s directions to the jury regarding “corroboration” is complicated in the present case because s 165 of the Act imposes no duty upon a trial judge to use that term when warning the jury of the dangers associated with accomplice evidence. Nor does the Act require the trial judge to identify those items of evidence which are capable of constituting corroboration.
218 As noted earlier, section 165(4) of the Act provides that it is not necessary that any particular form of words be used in giving the warnings specified in s 165(2). As we indicated, there will, no doubt, be cases where it is appropriate for a trial judge to do more than merely give the warnings there specified. The trial judge may, depending upon the circumstances, be required to provide the jury with some assistance as to what items of evidence the Crown is properly entitled to rely upon as support for the accomplice’s evidence.
219 It may, for example, be necessary, in a given case, for the trial judge to direct the jury that they should not use the testimony of one accomplice “to corroborate” the testimony of another. The trial judge gave that specific direction in the present case. It is, of course, possible to think of other examples. The important point to note is that the trial judge should give such directions as are necessary to ensure that the jury understands the dangers associated with accomplice evidence, and the need to find supporting evidence which implicates the accused in the commission of the offence.
220 The provisions of the Act dealing with accomplice evidence are plainly intended to give trial judges greater flexibility in the directions which they give to juries than they possess at common law. In Cross on Evidence par [15260] the comment is made that although s 164 and s 165 of the Act have statutory and common law precursors, they constitute “an attempt at a first start”. That comment is borne out by reference to the Law Reform Commission’s Research Paper No 14, Aspects of Proof (1983) at pp 115-119, and to its Report No 26 Interim Evidence Vol 1 Ch 43 (1985).
221 In R v Lewis [1998] NSWSC 408, Beazley JA spoke of the greater flexibility brought about by the operation of the Evidence Act 1995 (NSW). Her Honour said:
“A direction as to the dangers of convicting on uncorroborated evidence may still be given and in a particular case may still be necessary. In so stating I do not intend to indicate that words such as “danger”, “dangerous” or “corroboration” must be used in any such direction. It is a matter for the trial judge to give a warning which is adequate in all the circumstances, and it may well be better to express the warning in terms of evidence that “supports” the witness, since this is likely to be more meaningful to a jury.”
222 Similar views concerning the operation of the Act have been expressed in R v Bui (unreported, New South Wales Court of Criminal Appeal, 5 December 1996); Lane v The Queen (1996) 66 FCR 144; R v Spedding (unreported, New South Wales Court of Criminal Appeal, 11 December 1997) and R v Abdallah [1999] NSWCCA 380.
223 The trial judge in the present case was not bound to identify for the jury those items of evidence capable of constituting corroboration. However, he considered himself to be under a duty to do so. Having undertaken that task, he was bound to perform it correctly - Bui.
224 Earlier in this judgment we summarised the various items of evidence which the trial judge identified as being capable of constituting corroboration. We itemised those eighteen separate items of evidence as pars (a) to (r). The trial judge did not use that, or any other, nomenclature when he dealt separately in his charge with each of these items of evidence.
225 Mr Tilmouth submitted that the trial judge had wrongly identified all save one, or perhaps two, of these items of evidence as being capable of constituting corroboration when he summarised the case against Conway. If that submission were correct, there would undoubtedly have been a miscarriage of justice. It is necessary therefore to consider carefully each of the items of evidence said by Mr Tilmouth to have been wrongly identified as being capable of constituting corroboration.
(a) The evidence from a police witness that the bicentenary numberplates were found in Conway’s garage after the murder.
The trial judge instructed the jury that this evidence, together with the conversations recounted by Steer and Williams with McFie about the number plates showed “some sort of relationship” between themselves and McFie. However, his Honour told the jury that this evidence “does not corroborate the murder”. In those circumstances, Mr Tilmouth’s submission that the jury had been wrongly directed that this item of evidence was capable of constituting corroboration cannot be accepted.
(b) The evidence from Redfern concerning his observations of McFie going off with Williams to a separate room in Williams’ flat and engaging in some form of surreptitious conversation.
The trial judge described this evidence as “evidence independent of the two accomplices of some conversation in a withdrawn position between the accused McFie and Williams”. In our view, this evidence was not capable of constituting corroboration. It did not implicate McFie, still less Conway, in the commission of the offence charged. It should not have been left to the jury on the basis that they might regard it as corroborative of Williams’ testimony.
(c) The evidence of Redfern and Ulanowicz that whilst they were at Williams’ flat McFie came and asked how heroin could be taken. Redfern said that he told McFie that it could be drunk, smoked or injected. McFie then purchased three caps for $150.00 saying she wanted it for friends.
This evidence was, in our view, capable of constituting corroboration. The jury would have been entitled to treat the conversation concerning heroin, and the purchase of the three caps, as being linked to the coffee incident. They would have been entitled to find, as we have already concluded, that the coffee incident was an act preparatory to the murder itself. The fact that Conway was not present when McFie asked how heroin could be taken, and purchased the three caps, does not mean that what she said and did on that occasion was not evidence against him. Her acts and declarations in furtherance of the common purpose agreed to between herself and her co-accused would be admissible against them both under the “co-conspirator rule”. We shall return to that rule shortly. If this evidence were admissible against Conway, there is no reason why it should not also have been capable of constituting corroboration of the accomplice evidence in the case against him.
(d) Redfern’s evidence of another occasion when McFie came to Williams’ flat saying she wanted to buy $300 worth of heroin, and her purchase of such heroin from him.
For the reasons given above in relation to item (c) this evidence too was capable of amounting to corroboration.
(e) Evidence from Ulanowicz that he was at Williams’ flat after the two sales of heroin when Williams returned after apparently visiting McFie’s flat and reported that he had been asked by Conway to “knock off” his wife. Ulanowicz described Williams as being “agitated and fidgeting around”.
The Crown conceded that the trial judge had erred in describing this evidence as being capable of constituting corroboration. That concession seems to us to have been correctly made. The evidence did not emanate from any source independent of Williams. The trial judge’s error in characterising this evidence as potentially corroborative was compounded by the fact that he invited the jury, albeit by way of comment, to consider it to be “very strong” corroboration.
(f) Evidence from Ulanowicz that he travelled with McFie and Williams to Eaglehawk “to score a half” of heroin and that they went in McFie’s car because the heroin was for her.
This evidence was clearly capable of constituting corroboration in the case against McFie. It was also capable of constituting corroboration in the case against Conway to the extent that evidence of McFie’s acts and declarations in furtherance of the common purpose was admissible against him.
(g) Evidence from Ms Stanger confirming that Steer had borrowed her car on the evening of the murder, and that she next saw it at 3.00 am the following day. Williams was in the back seat, “spaced out”. Later on her brother, Steer, had told her “we’ve done a job”.
The Crown conceded that the trial judge had erred in directing the jury that this evidence was capable of constituting corroboration. That concession seems to us to have been correctly made. The evidence in no way implicated either McFie or Conway in the commission of the murder. It did no more than confirm, in certain non-contentious respects, the account given by the two accomplices.
(h) Williams’ “new found wealth” on and after 3 May 1997. Williams gave evidence that he received $3,000 from McFie, of which he gave $1,000 to Steer and kept $2,000 for himself. According to the evidence of his sister he gave her $600 at that time. According to the evidence of his mother he gave her $200. He also purchased a motorbike for $900 on 5 May 1997, two days after the murder.
This evidence was, in our view, capable of constituting corroboration. The amounts paid over by Williams were generally in line with the $2000 which he claimed to have kept for himself out of the $3000 which he said he had been given by McFie on the night of the murder. More importantly, the amounts paid over correspond very closely to the amount which McFie claimed to have paid to Steer and Williams when she discussed with them what they were owed during the course of their early morning visit to 35 Gollan Street on 28 July 1997.
(i) Evidence from Redfern that on 3 May 1997 he had a disagreement with Williams. The following day, Williams came to their sister’s home in company with Steer who waited out in the car. Williams had an envelope containing “a heap of cash” in it. Redfern said that when he asked Williams about the cash he was told to mind his own business. Shortly thereafter they went to Civic in McFie’s car, and purchased heroin.
This evidence, though marginal was, in our view, capable of constituting corroboration, albeit only so when considered in conjunction with item (h).
(j) Evidence from Redfern that, after the murder, at the request of Williams, he went to McFie’s flat and told her that Williams wanted to see her. She attended Williams’ flat, and Williams asked for $250. McFie told him that she would get him the money later that day.
Although the Crown conceded on the appeal that this evidence was not capable of constituting corroboration, we are of the view that the trial judge correctly directed the jury that they might regard it as corroborative. It was of course circumstantial evidence. Taken in isolation it did not advance the Crown case to any significant degree. However, when considered in conjunction with what McFie was heard to say on the morning of 28 July 1997, Williams’ request for $250 was capable of assuming considerable significance.
(k) Evidence from Steer’s sister, Ms Stanger, that she had been pulled over by the police who then searched her car, obviously looking for drugs. She had reported that incident to Steer. That evidence, together with the note prepared by McFie on 21 June 1997 recording particulars of the incident and evidence that she had agreed to ask Conway to investigate the circumstances (together with the piece of paper where she wrote it all down – exhibit 16) was said by the trial judge to be capable of amounting to corroboration because it cast light upon the relationship between Steer and McFie.
Although this evidence might be regarded as being somewhat marginal, we are not persuaded that the trial judge erred in directing the jury that it could be corroborative
(l) Evidence from a telephone tap of a conversation between Conway and McFie concerning Ms Stanger’s encounter with the police. The trial judge described this evidence as being “on the margin” but available to be used as corroboration.
We agree with the trial judge that this evidence too was marginal. The jury were so directed. We doubt that they would have given it any significant weight. We are not persuaded that the trial judge erred in characterising it in the manner in which he did.
(m) Evidence concerning the presence of Williams and Conway at the scene of the motor accident near the flats on 18 June 1997, together with the video taken at the scene and the telephone interception of the conversation between Conway and McFie (exhibit 40) where it was submitted by the Crown that Conway had carefully avoided mentioning Williams’ name.
In our opinion this evidence was capable of constituting corroboration. Conway’s explanation for his conduct in having spoken evasively concerning Williams’ name, when cross-examined on this subject at the trial, (namely that he had been “testing” McFie to see whether she recalled an earlier conversation between McFie and himself) might well have been regarded by the jury as utterly implausible.
(n) Evidence of McFie having withdrawn the sum of $200 from her account at the Credit Union on 18 June 1997, and telephone intercepts concerning arrangements to meet Steer and Williams at the Shell service station at Dickson that evening. Steer and Williams claimed that McFie handed over the sum of $200 at the service station. McFie confirmed that the meeting had taken place but said that she had given Steer only $20.
In our view the trial judge directed the jury correctly that if they were satisfied that McFie had paid Steer $200 on the evening in question (rather than $20, as she claimed) this might be viewed as “strongly corroborative” of the Crown case. The amount of $200 corresponds precisely with one of the amounts mentioned by McFie when calculating the money previously paid to Steer and Williams during the course of the early morning meeting which took place on 28 July 1997.
(o) The 28 July 1997 visit.
It will be recalled that Steer and Williams had been arrested for the murder of Mrs Conway. Steer had a listening device secreted on his person which enabled the conversation which took place at 4.00 am on 28 July 1997 at 35 Gollan Street to be recorded.
The trial judge directed the jury:
“You will consider what was said and what was recorded and it will be a matter for you as to whether you regard what was said and the money being handed over as some sort of corroboration of the story that Steer and Williams had given you.”
We have read the transcript of the recorded conversation in its entirety. We have also listened carefully to the whole of the tape of that conversation. In our view the trial judge was entirely correct in directing the jury that this evidence was capable of constituting corroboration. Indeed, it was open to the jury to regard it as highly probative of the guilt of both Conway and McFie.
It is plain from the tape that Conway was present during most of the conversation. He was certainly present when Steer referred to having murdered the deceased and requested the payment of some thousands of dollars from Conway.
Conway’s explanation for this conversation was that he had learned for the first time that morning that Steer and Williams had murdered his wife. He had decided that he would fob them off by pretending to agree to their request for money. He claimed that he had intended to report what they had said during the course of the meeting to the police sometime later that day.
That explanation defies credulity. It is hardly surprising that Conway was unable to answer a number of questions put to him in cross-examination regarding this episode.
The trial judge’s directions to the jury regarding the potential of this evidence to constitute corroboration was, if anything, extraordinarily charitable to both Conway and McFie. The evidence was, quite simply, devastating.
(p) The evidence of the finding of balaclavas and gloves by the police.
The trial judge instructed the jury that these items were “capable of amounting to corroboration” in relation to the commission of the offence, but that they did not prove anything in relation to the complicity of Conway and McFie. His Honour’s use of the term “corroboration” was perhaps less than ideal. It is clear, however, that it occasioned no prejudice to the accused.
(q) The trial judge reminded the jury of the evidence given by Williams that Conway had said that death should be by overdose of heroin. He instructed the jury that the fact that death had occurred in that manner in accordance with what Williams had described as Conway’s express wishes might tend to corroborate Williams’ story.
The Crown conceded that the trial judge had erred in directing the jury that this evidence was capable of constituting corroboration. That concession seems to us to have been correctly made. The evidence may have come from a source independent of Williams, but it was not capable of supporting Williams’ evidence about what Conway had said. However, taken in conjunction with the rest of the evidence, and in particular the evidence concerning the coffee incident, the medical evidence as to the cause of death was capable of providing support for the Crown’s contention that Conway was implicated in the murder of the deceased. In any event, we consider that his Honour’s direction would have had minimal impact on the jury’s consideration.
(r) Evidence of lies told by Conway.
It was accepted at the trial that Conway had lied repeatedly throughout his record of interview. Indeed it was accepted that he had also lied in an earlier written statement which he had made to the police. The trial judge directed the jury that there were circumstances in which lies deliberately told by an accused could constitute corroboration. His Honour’s direction concerning lies was in accordance with the principles stated by the High Court in Edwards v The Queen. It was plainly open to the jury to treat Conway’s lies as not merely evidence of “consciousness of guilt”, but also as constituting corroboration.
226 Of the eighteen items of evidence to which the trial judge referred when directing the jury as to corroboration, two (items (a) and (p)) were the subject of directions which made it clear that they should not, in fact, be treated as corroboration. Four ((b), (e), (g) and (q)) were, in our view, wrongly identified as being capable of constituting corroboration. Twelve ((c), (d), (f), (h), (i), (j), (k), (l), (m), (n), (o) and (r)) were correctly identified as being capable of constituting corroboration.
227 When a trial judge has wrongly identified one or more items of evidence as being capable of constituting corroboration, an appellate court will often hold that there has been a miscarriage of justice. It may be impossible in such circumstances to say whether the jury would have acted upon the evidence which was the subject of a corroboration warning had it not been for the particular item of evidence wrongly left to them as potentially corroborative.
228 For example, in R v Pisano the trial judge had identified six separate items of evidence as being capable of constituting corroboration. However, five of those six items of evidence were held by the Court of Appeal to have been wrongly so identified. A new trial was ordered.
229 However, an error, or series of errors, concerning the identification of items of evidence said to be capable of constituting corroboration will not necessarily give rise to a miscarriage of justice. If there is in fact a substantial body of evidence implicating the accused, and also ample evidence capable of constituting corroboration, an appellate court may consider that the particular error, or errors, did not lead to a miscarriage of justice – R v Teitler [1959] VR 321 at 329-31 per Lowe and O’Bryan JJ.
230 In R v Kalajzich, the New South Wales Court of Appeal, in a joint judgment, said at 447:
“As to the second ground, we are unable to conclude that the evidence of Mrs Carmichael was capable of corroborating Vandenberg. It was in our view ‘intractably neutral in its effect’. This is the only matter left to the jury as being capable of constituting corroboration which, in our opinion, should not have been so left. It concerned, however, an episode which might properly be regarded as nebulous; the reference to it in the summing up is very short and could not have loomed large in the consideration of the jury; there were a number of other matters which were plainly capable of amounting to corroboration; … we are of the opinion that its inclusion in the summing up did not give rise to any miscarriage of justice.” (emphasis added)
231 The joint judgment continued at 452:
“We have determined that in one relatively minor respect his Honour erred in leaving to the jury as capable of constituting corroboration, a piece of evidence which did not have that character. Despite this, and in the event that any of the other matters which we have held could constitute corroboration although only “straws in the wind” might be regarded as ‘intractably neutral’, we are firmly of the view that no miscarriage of justice has occurred. That case against Kalajzich was indeed a strong one, notwithstanding that it depended upon the evidence of accomplices. No reason of any cogency has been advanced, whether at the trial or on the appeal, as to why the accomplices should fabricate their evidence or, indeed why Vandenberg should kill the deceased, unless it was her husband who desired her death and was responsible for the steps taken to bring it about. We have earlier referred to the case which the Crown sought to make. We should emphasise that it is the combined weight of all the circumstances relied upon, in a case where corroboration depends upon circumstantial evidence, which is to be considered, rather than just the various circumstances looked at in isolation. We are quite satisfied that to leave , in the course of a very long summing up, a particular matter as capable of constituting corroboration where that matter was really of little significance and did not feature in any prominent way at the trial, or indeed, in the summing up does not, in the light of the overall considerable strength of the Crown case, warrant the granting of a new trial. There was, as we have already said, ample evidence to corroborate the evidence of both Elkins and Vandenberg. In Lindsay Bray CJ observed that there are cases where the proviso has been applied, notwithstanding an erroneous direction that a certain item of evidence was capable of amounting to corroboration, when there are undoubtedly other items which were so capable: see Knight [1966] 1 WLR 230 at 233; 50 Cr App R 122 at 125; see also the joint judgment of Zelling and Wells JJ in Lindsay at 122. We are therefore of the opinion that the grounds of appeal concerning corroboration relied upon by Kalajzich fail.” (emphasis added)
232 In the present case the errors made by the trial judge related to four out of eighteen items of evidence. None of those four items of evidence was, in our opinion, of more than minimal importance, and two of them may fairly be described, in the language of the Court of Appeal in Kalajzich as “nebulous”. They did not feature in any prominent way at the trial. They were given little emphasis in the summing up. They could not have loomed large in the consideration of the jury.
233 It is significant that Mr Pappas took no exception to the trial judge’s directions to the jury concerning these four items of evidence. Mr Pappas would no doubt have appreciated that, in the context of this trial, these four items of evidence were unlikely to be viewed by the jury as being of any real significance. He would also have appreciated that it might be to his client’s detriment to have the jury reminded, had there been a re-direction regarding these four items of evidence, of the enormous body of evidence which was capable of constituting corroboration.
234 It must also be remembered that both before and after the trial judge embarked upon the task of identifying for the jury the items of evidence which were capable of constituting corroboration, he directed the jury in unexceptionable terms as to the general nature of corroboration. The trial judge stressed, in particular, the need for corroboration to be independent, and for it to implicate the accused in the commission of the offence, and not merely to support the evidence of the accomplice. We consider that the jury would have understood from these directions the distinction between evidence which was merely confirmatory, and evidence which constituted corroboration
235 In our view the trial judge correctly identified ample evidence capable of constituting corroboration. We consider that it is inconceivable that the jury would have convicted Conway on the basis of one or more of the four items of evidence wrongly identified by the trial judge as being capable of constituting corroboration if they were not already satisfied by the totality of the evidence of Conway’s guilt. An appellate court which is engaged in the task of considering whether an erroneous direction on the part of a trial judge has given rise to a miscarriage of justice is obliged to give full effect to the well known observations of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514. However, the appellate court is not required, as part of that task, to engage in reasoning which is wholly speculative, and borders upon being fanciful.
236 In our view, this is a case in which the particular errors made by the trial judge were “of such a nature that [they] could not reasonably be supposed to have influenced the result” of the trial – see Stokes v The Queen (1960) 105 CLR 279 at 284-5. It is well established that the errors made by the trial judge are to be dealt with as though the appeal to this Court from the Supreme Court of the Australian Capital Territory were governed by the operation of the proviso which applies in all States in which criminal appeals are dealt with pursuant to the common statutory form – see Duff v R (1979) 28 ALR 663 at 673-4.
237 In accordance with the principles laid down by the High Court in Wilde v The Queen (1988) 164 CLR 365 and in Glennon v The Queen (1994) 179 CLR 1, the trial judge’s errors in identifying various items of evidence as being capable of constituting corroboration did not deprive the accused of “a chance which was fairly open to him of being acquitted”. We are satisfied that those errors did not lead to a miscarriage of justice.
238 The final matter to be considered regarding the trial judge’s directions to the jury concerning corroboration is Mr Tilmouth’s submission that the trial judge erred in failing to direct the jury that they were required to consider each item of evidence said to be capable of constituting corroboration separately in the case of each accused. Mr Tilmouth submitted that in any case involving more than one accused a direction of this type was required to be given as a matter of law.
239 There is some support to be found in the authorities for this submission. In R v Checconi (1988) 34 A Crim R 160 Roden J said at 168:
“No objection was taken to that as a general statement of the position regarding corroboration of an accomplice’s evidence. However, once again the particular requirements of a multi-accused trial appear to have been overlooked. No reference is made to the need to consider the corroboration question separately in the case of each accused, and there was a resultant possibility that the jury would think that evidence independent of the accomplice, supporting what he said, and tending to prove that one of the accused was involved in the conspiracy, could operate as corroboration for all purposes.” (emphasis added)
240 In R v Kalajzich the joint judgment said at 454-5:
“It is helpful to trace the question of corroboration through the course of the summing up. Regrettably, his Honour did not distinguish, when summing up on the question of corroboration, between the case against Kalajzich and that against Orrock. Thus, the various matters involving corroboration of the witnesses Elkins and Vandenberg to which reference has been made earlier were dealt with by his Honour in an overall context. At the first available opportunity, Mr Van Aalst of counsel for Orrock sought a redirection in relation to corroboration. The redirection sought was handed to his Honour in writing. It was in the following terms:
‘Corroboration’
That the jury be directed –
1. That the evidence concerning the tapes of conversations between Warren Elkins and the accused Kalajzich (exhibits G4, H4, J4, K4, L4, M4 and N4), are not evidence in the case against Orrock.
2. The same applies in respect of the briefcase allegedly handed over outside Mr Kalajzich’s daughter’s house on the night of the murder, and
3. The payment of $10,000 to the McDonalds.
4. That the tape of the conversation between Vandenberg and Elkins (exhibit F4) is not evidence in the case against Kerry Orrock.’
The learned Crown Prosecutor conceded the validity of the redirection sought by Mr Van Aalst and his Honour thereafter gave the following redirection to the jury (at p 269):
‘It is now necessary for me to turn to the case of the Crown against the accused Orrock. Again I remind you that this case is to be considered separately and apart from that of the accused Kalajzich. In particular I direct you that four separate aspects of the evidence, which I will define to you, cannot be used by you in considering the Crown’s case against the accused Orrock. Therefore, I direct you that the evidence concerning the tapes of conversations between Elkins and Kalajzich, exhibit GGGG and exhibit NNNN, are not evidence in the case against Orrock. I also direct you that the same applies in respect of the briefcase allegedly handed over outside Mr Kalajzich’s daughter’s house on the night of the murder is not evidence against the accused Orrock. There I refer to exhibits RRR, SSS and exhibit 9. That evidence cannot be used in the Crown case against Orrock.
I also direct you that the $10,000 paid after the murder and after the committal proceedings to the McDonalds cannot be used as evidence in the case of the Crown against Orrock. Further, the tape of the conversation between Vandenberg and Elkins, exhibit 4, is not evidence in the Crown case against Kerry Orrock.’
We conclude that none of the material referred to in par 1 of Orrock’s grounds of appeal was capable of being treated by the jury as corroboration of the evidence against him of either Vandenberg or Elkins. However, as no redirection was sought with regard to these matters at the trial, the leave of the court is required under r 4 of the Criminal Appeal Rules (NSW). We do not consider that this is a case in which such leave should be granted. Here experienced counsel for Orrock made a deliberate decision to object only to some of the matters left as constituting corroboration, and he stood by and allowed the remainder to go to the jury. The summing up was long and complex, as was the trial, and the principles enunciated in the various cases which have long been applied in this court lead us to the conclusion that leave should not be given.” (emphasis added)
241 It is important to note that Mr Pappas did not seek any such direction from the trial judge. It was Mr Thomas, counsel for McFie, and not Mr Pappas, who raised the question whether such a direction should be given. That was surprising, given that it is difficult to see how such a direction could have been of any utility to McFie. On any view, virtually every item of evidence identified by the trial judge as being capable of constituting corroboration involved McFie’s own conduct. Obviously each of these items of evidence was admissible in the case against McFie, and clearly each of them, save for those which were intractably neutral, was capable of corroborating the accomplice evidence in her case. Predictably, therefore, Mr Thomas, having once raised the matter with the trial judge, did not pursue it.
242 A number of the items of evidence which were identified by the trial judge as being capable of constituting corroboration consisted of acts and declarations on the part of McFie which took place in the absence of Conway. These acts and declarations were admissible against Conway provided that they fell within the ambit of the “co-conspirator rule”, ie provided there was “reasonable evidence”, independent of McFie’s acts and declarations, of Conway’s involvement in the plan to have the deceased murdered. We shall return to that rule shortly.
243 There seems no reason in principle why such evidence, if admissible against Conway, could not also be capable of constituting corroboration of the accomplice evidence in his case.
The co-conspirator rule
244 Grounds 12 and 13 are concerned with the application of what is often termed, though somewhat misleadingly, the “co-conspirator rule”.
245 As formulated by the High Court in Ahern v The Queen (1988) 165 CLR 87 at 94-5 the rule states:
“… that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi v The Queen (1961) 104 CLR at p 7. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation …. The principle lying behind the rule is one of agency …”
246 The Court explained at p 100 that the evidence of participation to which reference had earlier been made had to be “reasonable evidence”. That evidence did not have to meet the civil standard of proof, much less the criminal standard, but there had to be more than mere conjecture or surmise. The trial judge, and not the jury, was responsible for determining whether the independent evidence was sufficient to establish the accused’s participation in the joint enterprise. The order of proof was flexible. The acts and declarations of a
co-conspirator could be admitted provisionally against an accused, pending independent proof, at a later stage, of his participation.
247 Subsequent authority establishes that when instructing the jury as to the operation of this rule, the trial judge must make it clear that they must first consider the evidence directly admissible against a particular accused in order to find “reasonable evidence” of his participation in the crime charged before using the acts or declarations of any co-conspirator against him – R v Pektas [1989] VR 239 at 270-1 per Vincent J; R v Masters (1992) 26 NSWLR 450.
248 The co-conspirator rule is one of some antiquity. It is not confined to cases of conspiracy, but extends also to substantive offences involving preconcert or complicity – see Tripodi v The Queen (1961) 104 CLR 1, Ahern at 99. Technically, the rule operates as an exception to the hearsay rule. In practice, however, it will seldom operate as such since the words spoken are admissible as physical and verbal acts, independently of their probative value as hearsay – R v Jackson (1987) 11 NSWLR 318 at 324 per Roden J.
249 The case against each of Conway and McFie was put on the basis that they had counselled or procured the murder of the deceased. That rendered them both liable as accessories before the fact pursuant to s 345 of the Crimes Act 1900 (ACT). Though described as a case of “counselling or procuring”, the Crown contended, in effect, that there had been an agreement, or preconcert, between Conway and McFie on the one hand, and Steer and Williams on the other, to have the deceased murdered. Clearly the Crown could have put its case against Conway and McFie on ordinary principles of concert, had it wished to do so – Osland v The Queen (1998) 159 ALR 170.
250 The trial judge was, of course, obliged to direct the jury that they were required to consider the case against each of Conway and McFie separately. His Honour gave the standard direction in this regard. The jury were directed that they could convict or acquit either accused, or both. It was made abundantly clear to them that they were to consider the evidence admissible against Conway separately from the evidence admissible against McFie. However, much, of the evidence led by Crown was, in fact, admissible against both accused.
251 The acts and declarations of McFie during the course of her dealings with Steer and Williams were not to be used as evidence against Conway unless there was reasonable evidence independent of what McFie had said or done which implicated Conway in the common enterprise, and unless her acts and declarations were in furtherance of the common object.
252 The trial judge directed the jury as follows:
“When two or more persons are bound together in pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose, is admissible in evidence against the others. The combination implies an authority unique to act or speak on behalf of others. Evidence in the form of that is done, or words uttered outside the accused presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the actual words, that the accused was also a participant.
And in furtherance of simply means to help forward, to promote, to aid, or to assist. And bringing that down to this case that means that there being evidence of a common purpose, a combination for the purpose of bringing about the murder, everything that Steer and Williams said and did in furtherance of that common purpose is evidence against both these accused. And there has not been any argument put to you by anybody that when something was done, if you found that it was done, it was not evidence against these two accused.
I will come to Conway's defence later on that anything that McFie did with the two assassins was not done with his knowledge, but if you are satisfied that there was a combination, then anything that McFie said to Steer and Williams is evidence against Conway because it is something done in furtherance of the common purpose. But the question for you is, was there a common purpose? Both accused say that they were not a party to any such common purpose.”
253 Mr Tilmouth submitted that the trial judge had failed to make it clear to the jury that the only acts and declarations of McFie which could be used as evidence against Conway were those which preceded the murder of the deceased. He submitted that whatever McFie had said or done thereafter could not be “in furtherance of” the common purpose, but was “mere narrative”. For example the payment on 18 June 1997 of $200 by McFie to Steer and Williams could not, he submitted, be evidence against Conway.
254 We are unable to accept this submission. All of the essential elements of the
“co-conspirator rule” were, in our view, adequately spelt out in the summing up. The “common purpose” to which the trial judge referred was plainly established by “reasonable evidence”, independent of any acts and declarations on the part of McFie which occurred in Conway’s absence. There was a substantial body of evidence admissible against Conway which established, to the requisite degree, his participation in the common enterprise. His involvement in the conversation which took place on the morning of 28 July 1997 would alone have been sufficient for that purpose.
255 Mr Tilmouth’s submission that any statements made by McFie after the murder on 3 May 1997 could not be “in furtherance of the common purpose”, seems to us to be misconceived. It is true that in order for the acts and declarations of a co-conspirator to be admissible against a co-accused under the “co-conspirator rule” those acts and declarations must have been “in furtherance of” the conspiracy or common purpose. It is also true that the requirement of “furtherance” involves the notion that the conspiracy or common purpose is extant. A mere narrative statement of some past event (even an overt act uttered by a
co-conspirator during the course of the conspiracy) cannot be regarded as being relevantly “in furtherance of” the conspiracy – see P Gillies, The Law of Criminal Conspiracy (2nd ed) 1990 at pp 192-195.
256 There are occasions where acts apparently done after the conclusion of a conspiracy or a joint enterprise will nonetheless be acts done in furtherance of the common design. One example is an agreement between the parties to give false information to the police in order to thwart their investigation.
257 In R v Vrany (1979) 46 CCC (2d) 14 at 26 it was said that:
“… those who conspire to commit crime do not do so with any nice or careful delineation of the offence intended and a single conspiracy may encompass a number of closely linked crimes which may be essential to the success of the conspiracy and form part of the common design. This fact may then lead to the admission into evidence of acts and declarations of the one conspirator against another which occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design …”
258 In R v Baron (1976) 31 CCC (2d) 525 at 544 the relevant principle was formulated as follows:
“acts immediately connected with the crime specified as the object of the conspiracy and necessary for its successful completion are within the common design and in furtherance of the conspiracy.”
259 The common purpose or design alleged against Conway and McFie in the present case was not merely to have the deceased killed, but also to pay off her hired killers, thereby ensuring that the accused would not be implicated in the commission of the offence.
260 We do not regard McFie’s conduct in paying Steer and Williams $200 at the service station, as “mere narrative”. It was rather an act on her part “in furtherance” of the common purpose. As such, it was open to the jury to treat what she did as evidence in the case against Conway. The same may be said of other conduct on her part which occurred after the murder of the deceased.
261 Mr Pappas did not seek a redirection in relation to his Honour’s charge regarding “the co-conspirator rule”. We do not consider that his Honour’s directions were in any way inadequate. We reject grounds 12 and 13.
The trial judge’s interventions in the cross-examination of McFie
262 Grounds 1, 2 and 3 arise out of two incidents which occurred during the course of Mr Pappas’ cross-examination of McFie. On the first occasion, the trial judge interrupted counsel, and said:
His Honour: “I just want to explain something to you, Ms McFie. You understand that when counsel cross-examine they are acting for the party whom they represent?”
McFie: “Yes, I understand that.”
His Honour: “So you are being cross-examined by Conway through Mr Pappas on instructions presumably given by Conway to Mr Pappas as his counsel, do you understand that?”
McFie: “Yes”.
His Honour: “You remember Mr Conway gave evidence that if you came to an arrangement with Steer and Williams to have Mrs Conway killed you did not do it on his instructions, you were doing it independently of him. Do you remember him giving that evidence?”
McFie: “I remember something – a question along those lines, yes.”
His Honour: “Well, you understand what Mr Pappas has just put to you acting for Conway and you understand that it is not Mr Pappas talking, it is Mr Conway talking. Do you understand that? I just want you to understand how advocacy works. You see, Mr Pappas has not got a personal interest in this case. Mr Pappas, like your counsel Mr Thomas, like the Crown prosecutor, they all appear here as professional advocates representing the particular interest for whom they appear, understand that?”
McFie: “I understand that, yes.”
His Honour: “So understand Mr Pappas is cross-examining you on behalf of Conway. Do you realise that?”
McFie: “Yes, okay.”
His Honour: “I just want to explain that to you?”
McFie: “Thank you.”
His Honour: “Because you do not want to get the idea that counsel have got any personal interest in this case or what the evidence is or anything of that nature. They are acting professionally in the discharge of their brief which they have accepted on behalf of a party, understand?”
McFie: “I understand that, thank you.”
His Honour: “I am glad you do.”
263 Mr Tilmouth submitted that it was not immediately apparent why the trial judge had, on this occasion, interrupted Mr Pappas’ cross-examination. He submitted there was nothing in the questions asked by Mr Pappas, nor in the answers given by McFie immediately before his Honour intervened, which suggested that McFie was unable to understand those questions, or to answer them save in a way that would implicate her in the arrangements with Steer and Williams. Nor were Mr Pappas’ questions unfair, misleading or deceptive. Rather, Mr Tilmouth submitted, what his Honour had done was to highlight, if it were not already patently obvious, that Conway, through his counsel, was pointing the finger of guilt fairly and squarely at McFie. He submitted that his Honour’s intervention at this point had been both unnecessary and inappropriate.
264 That was not, however, the end of the matter. Shortly thereafter the trial judge again intervened during Mr Pappas’ cross-examination of McFie. On this occasion McFie was being asked about a telephone conversation which she had had with Steer. She had told Steer that it would take about ten weeks to get together the money that he was owed. The following exchange then took place:
His Honour: “I do not know whether you understand what is going on, Ms McFie, I really do not?
McFie: “I beg your pardon.”
His Honour: “I do not know whether you understand what is going on, I really do not?”
McFie: “In what way?”
His Honour: “Mr Pappas, counsellor for John Conway, is cross-examining you with a view to establishing in the mind of the jury that you are responsible for this murder alone and not him, not Conway?”
McFie: “I've just gathered that.”
His Honour: “Well, I thought you were a bit slow coming to it?”
McFie: “I'm sorry, your Honour.”
His Honour: “Well, do not apologise. I want you to understand what is going on and that is what is going on. Do you understand now?”
McFie: “I understand what you're saying.”
His Honour: “Which means that if this cross-examination prevails, Mr Conway would be acquitted of the murder and you would be convicted of it. That is what he is aiming at? Do you understand? That is - - -”
McFie: “I don't understand that.”
His Honour: “Well, that is the way it is being put to you.”
265 Mr Tilmouth submitted that, whatever view one took of the first occasion on which his Honour had interrupted Mr Pappas’ cross-examination, the second interruption and the exchange which followed did not arise from any possible perception of inability on the part of McFie to understand the questions which were being put to her. He submitted that there was a realistic possibility that the jury would have speculated that the only reason for the trial judge’s intervention was a concern on his Honour’s part that Conway might be wrongly acquitted, while McFie alone might be convicted. Any such belief on the part of the jury would, of course, be highly prejudicial to Conway.
266 After the trial judge had interrupted his cross-examination for a second time, Mr Pappas submitted, in the absence of the jury, that his Honour had placed himself in an “invidious position”. The following morning Mr Pappas applied to have his Honour disqualify himself on the ground of apprehended bias, and to have the jury discharged. Mr Golding, in response submitted that there was no basis for the application made by Mr Pappas. However, he submitted that, out of an abundance of caution, his Honour might think it appropriate to say something to the jury disavowing the notion that his intervention reflected any personal view as to the guilt or innocence of Conway.
267 The trial judge declined either to disqualify himself or to discharge the jury. He also declined to give the jury any direction regarding his comments the previous day. He observed:
“I think this application on behalf of the witness Conway springs from a very vivid imagination and there is no ground for me disqualifying myself. I refuse to do so. Let us get on with the trial.”
268 Mr Tilmouth submitted that it had been improper for the trial judge to have intervened in the manner in which he did. He submitted that his Honour’s only concern, as a matter of law, ought to have been to ensure that McFie was questioned fairly in the sense that the questions were properly and accurately based upon the evidence, and framed in a comprehensible way.
269 Mr Tilmouth submitted further that by twice interrupting Mr Pappas’ cross-examination the trial judge had conveyed to the jury the distinct impression that he had taken sides in the case – see R v Esposito (1998) 45 NSWLR 442. He also submitted that what his Honour had done was the equivalent of saying to McFie in front of the jury “you had better give better answers or your co-accused Conway will get off”. He drew attention to R v Lars (1994) 73 A Crim R 91 in which the New South Wales Court of Criminal Appeal had dealt comprehensively with the consequences of undue judicial interference. He referred also to R v Mawson [1967] VR 205, where the Victorian Full Court had said of the risks associated with excessive judicial intervention, at 207:
“Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation … [t]he miscarriage may result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person.”
270 Mr Tilmouth referred finally to the well known observations of Lord Denning in Jones v National Coal Board [1957] 2 QB 55 at 63-64 concerning the undesirability of judges descending into the arena.
271 If, as Mr Tilmouth submitted, the jury might reasonably have been left with the impression that the trial judge believed that McFie was not doing enough to incriminate Conway, and that Conway deserved to be found guilty, or that the acquittal of Conway and the conviction of McFie would be in some way unsatisfactory, then there would certainly, in our view, have been a miscarriage of justice.
272 We have considered carefully Mr Tilmouth’s submissions in relation to this matter. The trial judge in this case was a most experienced judge in criminal matters. It seems to us from our reading of the transcript that it was open to his Honour to have concluded that McFie was not doing justice to her own case because she had not fully appreciated that the trial, which had been conducted throughout on the basis that neither Conway nor herself had been in any way involved in the murder of the deceased, was now being conducted upon the basis of a “cut throat” defence.
273 We are unable to discern in the trial judge’s observations any remarks which might reasonably be thought to have conveyed to the jury any view on his part that it would be unsatisfactory if Conway were to be acquitted, and McFie convicted. His Honour was obliged, in a difficult situation, to ensure that McFie understood that the strategy behind Conway’s defence had altered, and that Conway was now seeking to implicate her in the commission of the offence.
274 There was no basis, in our view, for Mr Pappas’ application that the trial judge disqualify himself on the ground of apprehended bias: Re JRL: ex parte CJL (1986) 161 CLR 342 at 352. Nor was there any basis for the application that the jury be discharged. It would, no doubt, have been open to the trial judge to have given a further direction along the lines suggested by the Crown. However, this might have served to highlight the concerns which had led his Honour on two occasions to intervene in Mr Pappas’ cross-examination. It might have planted in the minds of the jury a belief about his Honour’s views which they would not otherwise have entertained. Whether or not a direction of the type foreshadowed by Mr Golding ought to have been given was very much a matter for the trial judge in the exercise of his discretion. No direction of that type was sought by Mr Pappas once the trial judge had indicated that he would not discharge the jury. His Honour was in a far better position than is this Court to determine whether anything more needed to be said.
275 It follows that Grounds 1, 2 and 3 are rejected.
276 It also follows that Conway’s appeal against conviction must be dismissed.
McFie’s appeal against conviction
277 The grounds of appeal relied upon to support McFie’s appeal against conviction are:
· that the trial judge wrongly rejected the evidence of Lauren Taylor tendered on behalf of McFie;
· that the trial judge failed to give a proper direction to the jury on evidence of McFie’s prior character;
· that the trial judge should have discharged the jury when a question arose as to McFie’s fitness to stand trial;
· that the trial judge should have discharged the jury following allegations concerning a relationship between McFie and a person seen in the company of a juror;
· that the trial judge failed to give a proper direction to the jury on McFie’s inability to recall certain events during evidence; and
· that the trial judge failed to direct the jury adequately as to the defence case as it had been presented on behalf of McFie.
278 We deal with these in turn.
The rejection of evidence of Lauren Taylor
279 This ground of appeal is concerned with a written statement prepared by a woman called Lauren Taylor dated 12 August 1997 and handed to police on a date unknown. It did not become known to McFie or those advising her until 21 June 1998 at a stage of the trial when Steer and Williams had given their evidence and had been returned to their former custody.
280 Ms Taylor was a welfare officer at the Belconnen Remand Centre. Putting the contents of the statement as favourably to McFie as may be, Steer told Ms Taylor on 29 July 1997 that he and Williams entered the home of the victim using a back door key given to them by Conway and that, when confronted by the victim inside the house, Steer said, “John gave us a key”. Further, according to the statement, Steer told Ms Taylor that he believed that he was “set up” by Conway and that McFie “had little involvement”.
281 On 29 June 1998 application was made by counsel for McFie for leave to call Ms Taylor to give evidence along the lines of her statement. Leave was opposed by counsel for Conway. Counsel for the Crown declined to make any submissions on the point. The trial judge rejected the application. This ground of appeal challenges his Honour’s ruling.
282 His Honour’s ruling was correct. What Steer had told Ms Taylor was hearsay evidence that Conway had handed the key to “us” without distinguishing between Steer and Williams. Assuming that the statement was admissible under s 66(2) of the Act as an exception to the hearsay rule, it would have had prejudicial effect against Conway, since Williams had given evidence that the key came from McFie. As hearsay, Steer’s alleged assertion was of little probative value. If Steer had been recalled (which would have been necessary to make the statement admissible under s 66(2)), what was recorded in Ms Taylor’s statement might have been used to cross-examine Steer as on a prior inconsistent statement by him, and, if Steer had not admitted having made the prior statement to Ms Taylor, the written statement of Ms Taylor might have been admitted under s 43 as evidence of a prior inconsistent statement by Steer. Although under s 60 the prior inconsistent statement by Steer might have gone to the truth of its contents and not only to the credit of Steer as a witness, its probative weight would still have been minimal. If Williams also had been recalled, the statement of Ms Taylor might conceivably have been used indirectly as a basis on which to cross-examine Williams (but see s 44(2)), but it is difficult to see how it could have had any effect. There was no way in which the cross-examination of Williams could have made Steer’s conversation with Ms Taylor, as recorded in her written statement, admissible (see s 44(4)).
283 Further, although the statement of Ms Taylor might have been used to test Steer’s credit by putting to him his asserted opinion that McFie had little involvement, there was no way it could have been used as evidence of the truth of the assertion or that he was in fact “set up” by Conway.
284 To have allowed Ms Taylor to have given evidence along the lines of her statement, or to have allowed Steer or Williams to be recalled to be cross-examined on the matters raised in the statement, would have been to raise issues which would have been almost totally confusing to the jury with no significance in the case against McFie and with likely prejudice to Conway.
The directions as to character
285 It was submitted on behalf of McFie that the trial judge gave a direction on character that was unfair to McFie. McFie gave evidence that she had no convictions and two witnesses gave evidence that they knew her as a kind, caring and generous mother. They offered opinions that she was “not the kind of person that would commit murder”. Opinion evidence as to the good character of an accused person is admissible under s 110(1) of the Act. The Act does not appear to have changed the previous law and practice in the Territory on evidence as to the good character of an accused person.
286 The prosecution did not call evidence to rebut this evidence of prior good character. Counsel for the Crown indicated to the trial judge that he intended to address the jury on the issue of good character and sought a ruling on whether he was entitled to do so. Counsel indicated that he proposed to put to the jury that they should not find McFie and Conway to be of prior good character because of their conduct of deception in relation to the deceased, conduct which they did not deny. His Honour indicated that leave was not necessary and that he would give the normal character direction and expand upon that. Counsel for the accused did not submit to the trial judge, nor in the appeal, that the proposed direction was wrong. Counsel for the Crown eventually addressed the jury in the way in which he had anticipated.
287 The direction given was as follows:
“The next matter I have to deal with is that of character. Both accused have put forth their own good character. That is a relevant consideration in relation to the charge against both of them. It is relevant in two respects.
Character is relevant to an accused’s credibility as a person, a person putting forward a version of what has happened, secondly, it is relevant to the question whether he or she is a person who is likely to have committed the offence charged. You must take character into account. How much you take it into account is a matter for you. Cases vary. People of good character do not commit offences. People of good character sometimes commit an offence for the first time, so the weight which you attach to the good character which has been advanced is a matter for you.
The Crown says, ‘But really, if you look, they have not got good character. Neither of them has got any criminal convictions but for the way they behaved here they don’t start with a proposition that they are persons of good character’. But they have put themselves forward as persons of good character. It was open to the Crown to lead evidence to demonstrate that they were not persons of good character. The Crown did not lead any such evidence, as such. The Crown relies upon the comment that I have just made. You certainly have to take it into account.”
288 No criticism was, or could be made, in relation to the first two paragraphs of this passage. However, it was submitted that the reiteration by his Honour of the prosecution argument as encapsulated in the third paragraph unfairly reduced the effect of the preceding part as it related to the relevance of McFie’s prior good character.
289 The fact that counsel for McFie did not see fit at the trial to seek a withdrawal of the part of the direction to which objection is now taken, or to seek a further direction which would counter-balance the suggested unfairness, is suggestive of the likelihood that, taken in context, there was no unfairness at all. At the appeal, counsel was unable to formulate a direction to replace, or add to the one given at the trial.
290 Evidence of good character has been said to be “indivisible”, in that a person who wants to rely on it has to run the risk that the evidence may be rebutted or made the subject of comment that it does not show that the person is of wholly good character: R v Stalder (1981) 2 NSWLR 9 at 19, R v Hamilton(1993) 68 A Crim R 298. Thus it would be wrong to have left the case to the jury without a direction that, although it was not contested that McFie had no prior convictions, it was a matter for them to decide how far the evidence went to establish good character and how far that evidence tended to show the improbability of guilt and tended to support the credit of McFie as a person whose word could be believed.
Fitness to stand trial
291 On 26 June 1998, the last day of the sixth week of the trial, when McFie was being cross-examined, counsel for McFie raised with the trial judge the issue of his client’s fitness to stand trial and requested that his Honour take the appropriate steps to have that issue determined.
292 “Fitness to stand trial” is not a term used in the law currently and then in force in the Territory. The term used is “fitness to plead”. The situation in the Territory relating to fitness to plead and allied matters is governed by Division 2 of Part XIA of the Crimes Act 1900 (ACT) (the Crimes Act). The relevant provisions at the time of trial were:
“428E. Referral to Tribunal
(1) Where, on the trial of a person charged with an indictable offence –
(a) the issue of fitness to plead to the charge is raised by a party to the proceedings or by the Court; and
(b) the Court is satisfied that there is a question as to the person’s fitness to plead to the charge;
the Court shall order the person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge.
(2) Where the Court makes an order under subsection (1), it shall adjourn the proceedings to which the order relates and shall make such orders as it considers appropriate, including the granting of bail to the person who is the subject of the order.”
293 The Tribunal referred to in s 428E is the Mental Health Tribunal established under the Mental Health (Treatment and Care) Act 1994 (ACT) (the Mental Health Act).
294 Fitness to plead is not defined in the Crimes Act. The legislature has made provision elsewhere as to the consequences of an order under s 428E of the Crimes Act. Under s 68(2) of the Mental Health Act, the Tribunal shall determine, on the balance of probabilities, whether or not the person subject to the order is fit to plead to the charge. Under s 68(3) the Tribunal is required to make that determination by reference to specified criteria:
“68. Determination of fitness to plead
……
(3) The Tribunal shall not make a determination that a person is fit to plead to a charge unless satisfied that the person is capable of –
(a) understanding what it is that he or she has been charged with;
(b) pleading to the charge and exercising his or her right of challenge;
(c) understanding that the proceeding before the Supreme Court will be an inquiry as to whether or not the person did what he or she is charged with;
(d) following, in general terms, the course of the proceeding before the Court;
(e) understanding the substantial effect of any evidence given against him or her;
(f) making a defence to, or answering, the charge;
(g) deciding what defence he or she will rely on;
(h) giving instructions to his or her legal practitioner (if any); and
(j) making his or her version of the facts known to his or her legal practitioner (if any).”
295 The word “and” in s 3(h) indicates that the provisions are to be read conjunctively. A determination of fitness to plead is not available to the Tribunal unless it is satisfied of every one of the elements set out in pars (a) to (j). The section provides an evidentiary barrier that is higher than that set at common law on the issue of fitness to plead.
296 As Mason CJ and Toohey and Gaudron JJ observed in Kesavarajah v The Queen (1994) 181 CLR 230 at 234, use of the terms “fitness to plead” and “fitness to be tried” as if they are interchangeable is not accurate, but also is not uncommon. But there was no issue in McFie’s trial that fitness to plead can arise after a plea has been taken and, in the case of a plea of not guilty, after the jury has been sworn and the trial commenced.
297 In Kesavarajah, the High Court construed the words “upon the trial” in s 393(1) of the Crimes Act 1958 (Vic) to encompass any time during the trial. The trial judge, not without some misgiving, placed a similar construction on the term “fitness to plead” in s 428E. We think that his Honour was correct to do so. It would be surprising if the legislature had intended to abolish the Court’s power and duty at common law to inquire into an accused’s fitness to be tried if at any time during the trial such a question arose. Certain provisions in the Crimes Act, such as s 428F(b), s 428G(2) and s 428H(2), suggest that the legislature assumed, or intended, that an order that a person submit to the Tribunal for the purpose of determination of fitness to plead may be made at any time after the jury, that is to say, the jury sworn to try the issue of alleged guilt, has been empanelled.
298 In support of the submission that a question was raised as to McFie’s fitness to plead under s 428E(1)(a) of the Crimes Act, evidence was called on her behalf, in the absence of the jury, from Dr Bruce Stevens, a forensic psychologist, and Ms Kate Amanda Barrelle, a clinical psychologist. Ms Barrelle had interviewed McFie on 3 June and on the morning of 26 June 1998. Ms Barrelle considered that McFie was showing signs of stress which were consistent with dissociation, that is, a condition in which a person separates emotionally and cognitively from the immediate environment. A person in such a state may not hear a question or may not relate it to “the bigger picture of what else is going on”. Ms Barrelle also considered that McFie’s condition was consistent with dissociative amnesia which follows and is related to a traumatic event. Dr Stevens saw McFie on various dates in December 1997, February, March and June 1998, the last being on 16 June 1998. He applied tests for dissociation but found that McFie was “well under cut-off” in that regard. In Dr Stevens’ view, McFie was “quite shattered really. I mean … she is distressed and confused”. Her condition, however, did not affect her capacity to understand what was going on around her. He considered that her memory problems predated the trial and did not arise from any dissociated state.
299 The evidence of neither witness otherwise addressed any of the criteria relevant to an issue of fitness to plead as prescribed by s 68(3) of the Mental Health Act. His Honour, on the other hand, specifically considered each of those criteria and found that there was nothing before him to indicate that McFie was unfit in any respect. It is true that at one or two places in his reasons, his Honour expressed himself in terms which suggested that he was making a negative finding rather than considering whether there was any basis for a positive finding, but at the end of his reasons his Honour stated clearly:
“If I were to apply those criteria to this question of fitness to plead, I would find that there is no basis for finding any of those criteria to exist. There is simply no evidence. The high water mark of the evidence which has been adduced from psychologists called on this question is that she is quite shattered, she is suffering a high level of distress, some confusion but there is no effect on her comprehending what is happening around her. I just cannot see any basis for the application. I am not satisfied, in the least, that there is a question as to the accused…McFie’s fitness to plead to the charge of murder giving that expression its widest interpretation. I refuse the application.”
300 We agree with his Honour’s reasoning and his conclusions. In Sinclair v The King (1946) 73 CLR 316 at 334, Dixon J pointed out that it is not well recognised how high a degree of intelligence is required by the common law test for fitness to plead if it were literally applied. Dixon J added that there must nevertheless be “a real and substantial question to be considered”. The question does not arise simply by counsel asserting that there is one to be considered, or by the trial judge embarking on an inquiry into whether or not it arises. The significance of the trial judge’s decision that the question has arisen should not be overlooked. Once the question has been shown to arise, no matter how late in the trial, the trial judge has no discretion. The trial must be stopped or suspended so that the proper tribunal can be constituted to decide whether or not the accused is fit to be tried.
301 As was pointed out further in Kesavarajah at 249, the stress of a trial may sometimes so affect an accused person that an adjournment, or more than one adjournment, during the course of the trial is required. In fact, the trial judge adjourned the trial late in the afternoon on 25 June 1998 to enable McFie to be medically examined. Some submissions proceeded upon resumption of the hearing the following morning when his Honour ruled provisionally that the issue of fitness to plead did not arise. No application for a further adjournment was made. Cross-examination of McFie resumed until a short adjournment later in the morning. Upon resumption of the hearing after the short adjournment, counsel renewed the application in respect of McFie’s fitness to stand trial. After hearing further submissions, his Honour gave his ruling with ex tempore reasons in mid-afternoon. McFie went back into the witness box for further cross-examination without any further application for a further adjournment. We are unable to see that there was unfairness to the accused in these circumstances.
302 Once again the advantage that the trial judge had in seeing and hearing the witnesses must be emphasised. His Honour’s own observations as to McFie’s demeanour during the trial, during her evidence-in-chief and particularly whilst under cross-examination, gave him considerable advantage in this regard. Dixon J in Sinclair referred to “the opportunity given to the jury trying the issue of judging the condition of the man before them”. A similar opportunity is given to the judge charged with deciding whether the question arises.
303 We are unpersuaded that a real or substantial question of McFie’s fitness to plead arose at any time during the trial or that fairness demanded that the trial be further adjourned in order for her to be able to deal with any difficulties she was having during the trial.
Contamination of the jury
304 On 3 July 1998 counsel for McFie informed the trial judge in the absence of the jury that it had come to his attention that a member of the jury had been seen leaving the court with someone who had previously had what counsel described as a “boyfriend/girlfriend relationship” with McFie. Counsel applied for a discharge of the jury on that ground.
305 His Honour dealt with the application by calling in the jury, informing them of the allegation and inquiring whether any of them had anything to tell him in response. There being no response, his Honour dismissed the application and proceeded with the trial.
306 In our view, that was an appropriate course to take in the circumstances of the case. There was nothing before his Honour except allegations of a vague nature from the bar table. Counsel did not seek to support the allegations by the calling of evidence. No person was identified as having witnessed what was alleged to have happened. The person alleged to have been seen in the company of the juror was not identified. There was no identification of the source of the knowledge of the prior relationship between McFie and the other person. There was no suggestion of any awareness on the part of the juror of any such relationship. At the commencement of the trial his Honour had given the usual warning about the confidentiality of the jury process and there was no justification for doubting that the jury respected that confidentiality.
307 There is no comparison between this case and Webb v The Queen (1994) 181 CLR 41, upon which counsel for McFie sought to rely. In that case, which involved a charge of murder, communication between a juror and a member of the family of the deceased took place in the courtroom in full view of the rest of the jury, counsel for the parties, and the public, and strongly suggested sympathy on the part of the juror for the relatives of the deceased. There was nothing of that nature in the present case. His Honour was correct in declining to discharge the jury on what had been put to him on this matter.
The direction as to loss of memory
308 In her evidence, particularly when being cross-examined, McFie stated that she was unable to remember various events and occasions. She stated further that she was unable to offer an explanation for various matters the subject of evidence, because of a lack of memory. It was submitted that the trial judge should have given two directions relating to McFie’s inability to recall events. One was that it did not “lessen the onus” that lay on the prosecution and that it placed her at a considerable disadvantage in meeting the prosecution case. The other was that the jury had to assess her loss of memory in the light of the whole of the evidence, including her behaviour. They had to consider whether the loss was simulated or genuine, and if genuine, they had to take it into account in reaching their verdict.
309 In support of the submission counsel relied upon R v Hall (1988) 36 A Crim R 368 and Russell v His Majesty’s Advocate (1946) SC(J) 37. Hall was a case in which the accused relied on a loss of memory in order to raise the issue of automatism. It has nothing to do with the situation in the present case. Russell is not authority for the first direction which it is now submitted ought to have been given. We see no reason why such a direction was required. Whilst the second direction sought was considered appropriate in Russell, that is another example of a case in which amnesia was raised in relation to the accused’s state of mind at the time of committing the otherwise criminal act. No such issue was raised in the trial of McFie. The judgment in Russell expressly repudiates the proposition that the law “is concerned only to investigate and punish crimes of the perpetration of which the criminal has a perfect recollection”.
310 There was no evidence presented to the jury to support any loss of memory apart from McFie’s own statements in the witness box that she could not remember. There was no evidence of independently observed behaviour on her part which went to support a genuine loss of memory. Loss of memory was not raised as an issue before the jury.
311 The directions now sought were not sought at trial, again suggesting that in the atmosphere of the trial, fairness did not demand such directions to be given. Indeed, in our view, to have given the directions now sought would have been to raise a false and misleading issue.
Failure to put defence case
312 It was submitted that there was an unfair imbalance between the way in which the trial judge explained the case presented on behalf of McFie compared to the way in which the trial judge explained the case presented on behalf of the prosecution and the case presented on behalf of Conway. With respect to the latter, it was pointed out that this took thirty pages of transcript, whereas the explanation of the case for McFie took only two pages.
313 Again, this was not a point raised at the trial. It is to be noted that the complaint now taken is one of imbalance only, not that the trial judge failed to put some essential or important part of the defence case: see R v Veverka [1978] 1 NSWLR 478.
314 In Cleland v The Queen (1982) 151 CLR 1 at 10, Gibbs CJ said:
“The second ground of the application was that the summing up by the learned trial judge was unbalanced and unfair in that the judge dealt at length with the evidence adduced by the Crown, but in relation to the evidence given by and for the applicant contented himself with a few general remarks which did not go into the details of the evidence or of the defence case. It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case. In the present case the summing up is open to criticism, although the defence case to which the judge directed the jury’s attention in a general way had only recently been presented to them, was not complicated and was likely to have been fresh in the jury’s minds. Moreover, after the jury had retired they had returned with a request that the evidence of Detective Sergeant Couch and portion of the evidence of Christine Colquhoun (one of the defence witnesses) be read to them and this request was complied with. It may be added that no objection was taken to his Honour’s summing up on this ground. I am unable to conclude that the deficiency of the summing up in this respect led to a miscarriage of justice.”
315 The complaint now is not about an imbalance between the adequacy of explanation of the prosecution case and the explanation of the case for McFie, but rather the imbalance in length between what the trial judge told the jury about the case for Conway on the one hand and what he told them about the case for McFie on the other. However, much of what had been put as Conway’s defence case was common to the case of that accused and to that of McFie and did not bear repetition. McFie’s case, in any event, was very simple: she knew nothing about how the deceased had met her death. As to the incriminating evidence of association with Conway and with Steer in particular, she offered innocent explanations which, it is true, were not the subject of express reference in the trial judge’s summing-up. But it is possible that for practical reasons her counsel did not want the jury to be reminded of those associations, especially so late in the trial. McFie did not give evidence that tended to incriminate or cast blame on Conway, and, as far as we are aware, her counsel did not address the jury to that end.
316 We see no failure on the part of the trial judge or any unfairness to McFie on this ground.
Conclusions
317 For the foregoing reasons we consider the appeals by Conway and McFie against their convictions for murder should be dismissed.
| I certify that the preceding three hundred and seventeen (317) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 11 April 2000
| Counsel for the Appellant in AG 64 of 1998: | Mr S Tilmouth QC with Mr J Pappas |
| | |
| Solicitor for the Appellant in AG 64 of 1998: | Pappas j - attorney |
| | |
| Counsel for the Respondent in AG 64 of 1998: | Mr T Golding |
| | |
| Solicitor for the Respondent in AG 64 of 1998: | ACT Director of Public Prosecutions |
| | |
| Counsel for the Appellant in AG 55 of 1998: | Mr R G Thomas |
| | |
| Solicitor for the Appellant in AG 55 of 1998: | Mr Darryl Perkins |
| | |
| Counsel for the Respondent in AG 55 of 1998: | Mr T Golding |
| | |
| Solicitor for the Respondent in AG 55 of 1998: | ACT Director of Public Prosecutions |
| | |
| Dates of Hearing | 6, 7 & 8 September 1999 |
| | |
| Place of Hearing: | Canberra |
| | |
| Date of Judgment: | 11 April 2000 |
