The Queen v Houghton and Roussetty
[2000] QCA 341
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- The Queen v Houghton and Roussetty[2000] QCA 341
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The Queen v Houghton and Roussetty[2000] QCA 341
The Queen v Houghton and Roussetty[2000] QCA 341
SUPREME COURT OF QUEENSLAND
CITATION: | R v Houghton and Roussetty [2000] QCA 341 |
PARTIES: | R v HOUGHTON, David Barry and ROUSSETTY, Michael (appellants) |
FILE NO/S: | CA No 294 of 1999 CA No 316 of 1999 SC No 144 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal against Conviction |
ORIGINATING COURT: | Supreme Court at Cairns |
DELIVERED ON: | 22 August 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 May 2000 |
JUDGES: | McMurdo P, Davies JA and Douglas J Judgment of the Court |
ORDER: | In each case appeal against conviction allowed, conviction set aside and a new trial ordered. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the evidence of a witness was not heard at the trial – where relevant and cogent evidence was not brought to the attention of the appellants' lawyers until after trial and where no reason to suspect its availability – whether a new trial should be ordered based on the fresh evidence Evidence Act 1977 (Qld), s 101 Jones v The Queen (1997) 191 CLR 439, applied M v The Queen (1994) 181 CLR 487, applied R v Condren; ex parte Attorney-General [1991] 1 QdR 574 applied R v Main; ex parte Attorney-General [1999] QCA 148, CA No 387 of 1998, 30 April 1999, applied Ratten v The Queen (1974) 131 CLR 510, applied |
COUNSEL: | A J Glynn SC for appellant Houghton A J Rafter for appellant Roussetty M J Byrne QC for respondent |
SOLICITORS: | Philip Bovey & Company (Cairns) for appellant Houghton Legal Aid Queensland for appellant Roussetty Director of Public Prosecutions (Queensland) for respondent |
- THE COURT: The appellants David Barry Houghton and Michael Roussetty were convicted of the murder of one Jason Tyler. Tyler's body was found in bushland on the Rex Range near Cairns on 11 November 1998. He had disappeared on the evening of 19 – 20 August 1995.
- The Crown case was that Tyler ("the deceased") went to the Bandidos motorcycle club house in Cairns late on the Saturday night or Sunday morning of 19 – 20 August 1995. It was alleged that he was beaten and shot to death there. At the trial this was not in dispute; nor was the fact that he was lured there by members of the Bandidos club at the behest of a Sydney member of the club, one Craig Clear, although no specified motive was identified for Clear's wishing to harm him. The Crown case against both appellants relied upon confessions of presence at, and involvement in, the killing, claimed to have been made to Peter Klarfeld, a former president (at the time of the trial) of the club.
- The case against the appellant Roussetty also relied upon the evidence of one Robert Sainsbury and Roussetty's former de facto wife Robin Kay.
- The Crown case was that Clear arrived in Cairns on Friday 18 August 1995. He was said to have been present at the club house that evening, and the following day was driven by Sainsbury to Klarfeld's house where Klarfeld and Clear had a lengthy conversation in the absence of Sainsbury. Klarfeld claimed to be absent from the club house from the Thursday until the Sunday, when he was called in after the death of the deceased. Sainsbury claimed that on the Saturday night he left the club house in the company of Roussetty and Mitchell (another co-accused) for the purpose of luring the deceased back to the club house. Sainsbury attended the Next Nightclub with these two and when leaving the nightclub heard the deceased make an arrangement with the appellant Roussetty to meet later. Sainsbury said that he returned to the clubhouse with Roussetty and Mitchell where he was told by Clear to go home which he did. He said he was telephoned the next morning and told to return to the clubhouse where he participated in a clean up.
- At the time Klarfeld was the president of the club and the evidence clearly revealed that this was a position of untrammelled authority. It is fair to say that ordinarily nothing happened in the club without the knowledge and permission of Klarfeld.
- The police carried out surveillance of suspects over a period of time. In particular in October 1995 police surveillance evidence revealed that Klarfeld drove both Roussetty and Houghton to the Rex Range area to the vicinity of where the body of the deceased was located. Video surveillance of the club house showed that on their return, items were removed from Klarfeld's vehicle and cleaned by Houghton. Klarfeld gave evidence that at the request of the appellant Roussetty, and at his own instigation, he drove the appellants to where the body was buried for the purpose of cleaning up the grave site.
- Both Sainsbury and Klarfeld gave evidence at the committal and trial hearings protected by undertakings from the Attorney-General not to use anything said in the course of their evidence against them in future proceedings.
- Ultimately, the case against the appellant Houghton must fail without the evidence of the confessions said to have been made by Houghton to Klarfeld whilst the latter was seeking information about the killing. The case against the appellant Roussetty was not as narrow but also relied upon evidence from Sainsbury that:
- when he returned to the clubhouse on Sunday morning Roussetty told him to mop up the club house "from top to bottom";
- whilst doing that he noticed a couple of droplets of blood which he cleaned up;
- at a subsequent meeting at Roussetty's place those present, including the appellants and Sainsbury, were told by Klarfeld to "forget about what was going on and if they got pulled up and anyone started asking questions, to shut their mouths and ring the solicitor"; and
- a couple of weeks later Roussetty had said to Sainsbury "What, are you worried about that cunt we knocked a couple of weeks ago".
- In addition so far as the appellant Roussetty is concerned Robyn Kay gave evidence of Roussetty saying on the Friday of this weekend that he had to go to the airport to pick up somebody from Sydney; of Roussetty, on the following day, borrowing her utility which was then in a pretty "dirty condition"; that Roussetty and the Sydney visitor did not return to dinner as expected; that she attempted to contact Roussetty at the club house but was unsuccessful; that when she next saw Roussetty he was angry that she had rung him; and that Roussetty was crying and when asked said that he could not tell her what had happened. She also gave evidence that she later looked at her utility and noticed that it had been cleaned out and said that to her knowledge the car had never previously been washed.
- Other significant evidence given by Kay concerned the fact that, after this weekend, Roussetty no longer had his boots or one pair of black jeans which when asked about he said they had been burnt. Importantly however, she said that Roussetty had arranged the sale of the utility to a car sales yard, and had later told her that he had said to the purchaser "... to get rid of it as they done some shitty stuff in it".
- It can be seen therefore that the evidence against the appellant Roussetty was somewhat stronger than that against Houghton. Ultimately however, the crux of the case against both of the appellants was the confessional evidence said to have been made by each of them to Klarfeld. It is convenient then to deal with Houghton’s appeal first.
- At the hearing of the appeal the appellant Houghton sought and was granted leave to add an additional ground of appeal as follows:
"A miscarriage of justice occurred by reason of the fact that evidence of one Tracey Hancock was not heard by the jury."
- Hancock swore an affidavit and gave evidence before this Court. The evidence given by her, would, if it had been placed before the jury (and accepted), have established that:
- Houghton was not at the club house at the time of the murder;
- the witness Klarfeld was present at the club house at the time of the murder;
- after helping to lure Tyler to the club house Sainsbury remained at the club house whilst the killing occurred;
- Sainsbury was told to go home from the club house by Klarfeld after the killing; and
- Sainsbury was threatened by Klarfeld that if he spoke of the killing “he would get the same”.
- Therefore it can be seen that the evidence is both relevant and cogent. In addition however this court needs to be satisfied also that it is capable of belief, see Ratten v The Queen (1974) 131 CLR 510 at 518-519.
- The nature and character of the evidence given by Hancock and her demeanour in the witness box in this court indicate to us that there is a “significant possibility” or a "likelihood" that the jury, acting reasonably, would have acquitted the appellant had it heard the evidence, see R v Condren; ex parte Attorney-General [1991] 1 QdR 574 at 576-577; R v Main; ex parte Attorney-General [1999] QCA 148; CA No 387 of 1998, 30 April 1999.
- Klarfeld, upon whose evidence so much of the Crown’s case relied, was an unsavoury witness. Notwithstanding this the jury apparently was able to accept him as a witness of truth. The unsavoury factors surrounding Klarfeld included the following:
- he was, on his own evidence, an accessory after the fact to murder and had attempted to pervert the course of justice;
- he had, as we said, the benefit of an undertaking from the Attorney-General not to use his evidence against him;
- he, also, before making incriminating claims against Houghton, was offered by the police officer Thompson, a “letter of comfort” for his sentencing in respect of unrelated drug charges then on foot against him;
- he acknowledged that he was the prime suspect for the killing therefore giving him a substantial interest in seeing others charged and convicted;
- there was strong inferential evidence that he was involved in the killing, in particular his involvement in conversation with Clear on the afternoon before the killing from which Sainsbury was excluded, and his position of authority.
- It was because of these considerations that the first ground of appeal argued was that the verdict of the jury was unsafe and unsatisfactory in that it was based solely on confessional statements said to have been made by Houghton to Klarfeld.
- At the trial the learned trial judge carefully and properly explained to the jury the dangers which are apparent when considering evidence from witnesses such as Klarfeld. Notwithstanding this, the jury was able to be satisfied beyond reasonable doubt as to the appellant’s guilt. The proper approach for a court of appeal when considering a ground of this nature is laid down in Jones v The Queen (1997) 191 CLR 439 at 450 – 452. That case confirmed the opinion of the majority of the High Court in M v The Queen (1994) 181 CLR 487, in particular at 494 where the majority said:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks probability for reasons which are not explained by the manner in which it is given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.”
- Applying that test we are unable to conclude that the verdict of the jury in this case was so unsatisfactory, or unsafe, that it should be set aside.
- The other ground of appeal argued by the appellant Houghton was as follows:
“3.The learned trial judge erred in that whilst warning the jury of the danger of acting on the evidence of Klarfeld if not supported by other independent evidence:
- failed to direct the jury that there was no such evidence;
- failed to direct the jury that even if there was supporting evidence, it remained dangerous to act on the evidence of Klarfeld in the circumstances of the case;
- failed to direct the jury as to the reasons why it was dangerous to act on the evidence of Klarfeld; and
- failed to direct the jury that the independent evidence to which his Honour referred must be independent evidence connecting the appellant with the offence of murder.”
- In essence the argument came down to a submission that there was a need to direct the jury, specifically in relation to a warning about the use to be made of Klarfeld’s evidence, that what needed to be "corroborated" “was both (a) the fact of Houghton having made a confession and (b) the fact of Houghton being involved in the offence.” It was conceded that (a) was touched in passing but it was submitted that (b) was not mentioned. A redirection was sought in respect of (b) but not with respect to (a). It was submitted that whilst the video and surveillance evidence of Roussetty, Klarfeld and Houghton visiting the grave, was capable of supporting Klarfeld’s evidence that the appellant Houghton was involved in clearing up the grave site, it was not capable of being used to “corroborate” either the fact of making his confession or the fact of his involvement in the subject offence. His Honour refused, on an application for redirections, to make the specific direction requested but did say:
“In relation to the accused Houghton, I made the point that the surveillance of the three men who went to tidy up the grave site namely Roussetty, Klarfeld and Houghton, that there might be some support found in that for some part of Klarfeld’s evidence. Well, I should emphasise that is his only support for that part of his evidence. In respect of Mr Houghton, who was there at that time, there is no suggestion on the evidence that he, Mr Houghton, knew prior to that day where the body was located."
- Furthermore, his Honour had earlier directed the jury of the need for “careful scrutiny of Mr Klarfeld’s evidence in particular”. They were also directed that they needed to be satisfied beyond a reasonable doubt both that the appellant Houghton made a confession and that, also, the confession was true so that Houghton was “involved in the events leading to Jason Tyler’s death”.
- In our view such directions were, with respect, correct and unexceptionable. His Honour in his summing up made it clear that Klarfeld’s evidence may well be flawed and must be carefully scrutinised.
- In our view the appeal should fail with respect to this ground of appeal also.
- Roussetty’s appeal on similar grounds has less merit because the evidence against him was, as we have said, rather more substantial. His appeal on those grounds should also fail.
- Returning to the evidence of Hancock, it becomes apparent that this evidence is important. It was not brought to the attention of the appellant Houghton or his lawyers until after the trial and they did not have any reason to suspect its availability. The evidence is truly fresh evidence and insofar as it is evidence of prior inconsistent statements of Sainsbury it is capable of being admitted as evidence of the truth of the facts stated therein, Evidence Act 1977 s 101.
- Two courses are open to this court. Those courses were discussed in the judgment of Barwick CJ in Ratten (supra) at 520 where his Honour said:
“To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court’s view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.”
- Hancock’s evidence does not convince us that the verdict of guilty could not be allowed to stand. However, it does fulfil the requirements of the second limb of the test in Ratten (supra). Therefore on this ground alone the appeal should be allowed, the conviction set aside and a new trial ordered.
- It follows since the evidence of Klarfeld and Sainsbury was crucial to this case against Roussetty that the same orders should be made in his appeal.