R v Pettigrew[2001] QCA 468

SUPREME COURT OF QUEENSLAND

1. THOMAS JA: The appellant was convicted of the murder of James Furey committed at Tara on or about 29 July 2000.  This is his appeal against that conviction.

2. The grounds principally concern the alleged wrongful admission of evidence.

Summary of evidence

3. The deceased lived on a property in Kofoeds Road, Tara. His neighbour, Mr Archer, saw the deceased near his house on Friday afternoon 28 July 2000.  When Mr Archer went to bed at about 8.30-9.00 pm that night he heard the deceased’s generator shut down at about the same time.  Between midnight and 1.00 am he heard the generator start up again.  Later he heard a bang and then a car driving along Kofoeds Road in a westerly direction.  On the following Saturday night, he heard the deceased’s dogs barking and howling for most of the night.  This prompted him to go to the deceased’s property on the Sunday morning.  When he did so he found the body of the deceased lying partly in a caravan annex.

4. Post-mortem examination revealed shotgun wounds to the back and to the head of the deceased. Shotgun pellets were retrieved from both wounds.

5. Mr Archer’s evidence was confirmed by his companion Ms Edward, who on the Friday night heard a “muffled shot sound”, the noise of the generator and a car travelling along the road. Another neighbour, Mr Rumble, heard a car driving along Kofoeds Road in a westerly direction in the early hours of Saturday morning (1.30-2.00 am ). Similar evidence was given by his companion, Ms Rotteveil. Another neighbour, Mr Dormer at about 1.30-2.00 am on Saturday morning heard the sound of a generator from the direction of the deceased’s property and then heard a gunshot. Mr Stone who lived further away gave evidence that at about 2.00 am on Saturday morning he heard noises similar to a car backfiring or a shotgun being fired, coming from the direction of the deceased’s property.

6. A number of witnesses gave evidence of the movements of the appellant on the night of Friday, 28 July. There was evidence that the appellant, “Scottie” Bell and Goran Apic were drinking at the home of Mr and Mrs Smith and that the appellant and Bell left the house just before midnight and returned later with some beer. One Arthur Dodd, who had been at the Smith’s house earlier that evening went home, and after arriving home was visited by the appellant, Apic and another person. They asked to stay the night but Mr Dodd refused. Apic gave evidence that he had been drinking with the appellant on the Friday night at Mr and Mrs Smith’s house, that the beer had started to run out and that the appellant borrowed Apic’s car and left the house with “Scottie”. He thought the time could have been around midnight. The appellant and Bell then returned with some beer. He did not know for how long they had been absent but it “could have been one or two hours away”. He later noticed a dent in the front bumper bar of his car. He agreed that the appellant was “very drunk” that night.

7. Bell gave evidence confirming that he went with the appellant in Apic’s car to get more beer. He said that he was asleep most of the time but that they had hit a wallaby on the road and he recalled that at some stage he was at the appellant’s residence. He then fell asleep and woke up in the stationary car by himself at a place he did not know. He then heard a loud noise, possibly twice. He saw a light coming from a caravan, a dog running away and the appellant returning to the car. They drove off. The Crown was given leave to cross-examine Bell and adduced his earlier statements of having heard “two loud bangs which sounded like gunshots” and of hearing the appellant state, “I had a bit of business to fix up” when he returned to the car. In cross-examination Bell admitted that he was an alcoholic and that he had been drinking heavily between the night of 28 July and the giving of his statements to police. He conceded it was possible that they only went to the appellant’s residence and that it was there where he heard the loud noise. He also admitted to having a poor memory and claimed that the police officer taking the statement had been fairly forceful and had banged on a filing cabinet. In due course the learned trial judge told the jury that they should be extremely hesitant to act on Bell’s evidence of hearing noises which sounded like gunshots.

8. There was further evidence of admissions made by the appellant of responsibility for the crime. Mr Dodd gave evidence that in the week following the death the appellant came to his house and whilst they were drinking, said something like “I did it”. In cross-examination he said that at the time he put it down to “drunk talk” and acknowledged that he could not state the precise words used.

9. Martin Ronan gave evidence following a ruling permitting the Crown to cross-examine him. He admitted that he told police in the statement that while drinking at the Commercial Hotel with the appellant some time after the murder the appellant had whispered to him “I did it”.

10. Mervyn Abrahams gave evidence of a number of confessional statements made to him by the appellant. Abrahams had been in Tara for about four months by July 2000 and had come to know the appellant. On their first meeting the appellant had come to Abrahams’ house with another companion, “Wayne”, who asked Abrahams to help with a scheme to defraud social security. Abrahams declined. Some time around 2 August 2000 the appellant went to Abrahams’ house saying that he needed to talk to someone, that he trusted Abrahams and that he knew that Abrahams would not “dob him in”. He said “Merv, you know the man who got shot recently? I did it”. He added that he did it because the deceased was a paedophile who had molested his son. He said that there were two other men with him, that he shot the deceased in the back with a shotgun and one of the others shot him in the head with a 22 rifle.

11. The next day Abrahams contacted Tara police following which arrangements were made for Abrahams, if possible, to tape record any further conversations he had with the appellant. Later that day Abrahams overheard the appellant speaking to someone on the telephone, saying “Ah, they’ll never get me. They’ve got nothing on me. They’re got nothing. The bastard’s dead. They won’t get me. They’re got nothing”.

12. On 6 August 2000 Abrahams went to the Tara Caravan Park where he spoke with the appellant and Martin Ronan, the caretaker of the caravan park. This conversation was audio-taped and tendered in evidence along with a transcript. The conversation included many admissions of responsibility for the murder including the following statements.

13. Early in the conversation reference was made to “the case”, and to whether the appellant would get back his shotgun which the police had taken. The following are extracts from the interview:

1. “…ABRAHAMS:   How long ago, did he do what he did to your son?  Like how long ago did that happen?

F1:  New Years Eve.

PETTIGREW:   New Years Eve.

…

ABRAHAMS:   How’s he handling it mentally, is he alright?  You can’t see him having…is he alright?

F1:  (UI cop shot UI)

PETTIGREW:   He’s alright.

2. ABRAHAMS:   How well can you trust the other fella that was with ya?  Is he alright?

PETTIGREW:   Implicitly.

ABRAHAMS:   Coppers haven’t interviewed him?

PETTIGREW:   Yep, they’ve interviewed him.

3. PETTIGREW:   Sooner or later the pressure will drop.

ABRAHAMS:   It will, I think it already has in a way.

F1:  They must have give up, they must of just got sick of driving around and around the coppers.  Now they’re walking around and around UI.

ABRAHAMS:   Are they?

PETTIGREW:   UI on foot today, all up top end.

M3:  I’ll start laughing if we see em on pushbikes.  Riding pushbikes around Tara.  Start calling em fucken paedophiles for hanging around the school.

PETTIGREW:   Hanging around the school, fucken we’ll call em paedophiles.

M3:  (Paedophiles) yeah fucken oath.

ABRAHAMS:   What is it they got?  Coppers in the school to talk to your boy or something?

PETTIGREW:   No, no they’re not allowed to.

M3:  Not allowed, too young mate.

PETTIGREW:   There’s two, there’s two kids that are coppers there so I believe.

F1:  No, one’s a … one’s a detective …

PETTIGREW:   One’s a fucken copper and other one’s a fucken copper’s wife.  And if they go anywhere near him, I’ll fucken blow right up.

M3:  Cos they can’t interview him, he’s too young.

PETTIGREW:   They can’t touch him mate, he’s fucken nine years old.

M3:  Yeah.

PETTIGREW:   They can’t…

M3:  They can’t interview him.

ABRAHAMS:   Oh you’re lucky.  So there’s no way he’ll be putting you in.

PETTIGREW:   Nah.

4. PETTIGREW:   Don’t say nothing in front of her, she don’t know nothing.

ABRAHAMS:   Oh no worries, who Aileen.

PETTIGREW:   Don’t even know about fucken what happened to UI..  Don’t know nothing.

ABRAHAMS:   Oh I didn’t know.

PETTIGREW:   That’s why I was trying to kick ya in the shins.

M3:  She thought you were she UI can’t interview her.

…

ABRAHAMS:   The worst thing you can do is tell a woman in some things.

PETTIGREW: UI tell her nothing.

5. PETTIGREW:   He is a character fucken Goran but you know, like, ah he’s alright bloke I tell ya.

ABRAHAMS:  Yeah I’m sure he is.  I’m sure he’s a good UI.

M3:  You get him going sometimes…

PETTIGREW:   (UI) he does, fucken, they grabbed his car three times.

M3:  Three times they’ve gone through that yeah.

PETTIGREW:   Cos I drove it.

ABRAHAMS:   What the coppers… on Goran?

PETTIGREW:   I drove it…I drove his car.

ABRAHAMS:   What?  When you went and did it?

PETTIGREW:   I used his car see.

ABRAHAMS:   Oh shit.

PETTIGREW:   But they don’t know that, they don’t know nothing.  Goran don’t know it.

ABRAHAMS:   Goran wasn’t there?

PETTIGREW:   Nah.  He don’t know nothing.

ABRAHAMS:   (I couldn’t see) Goran…

PETTIGREW:   No, he don’t know nothin’.

ABRAHAMS:   Far out.

PETTIGREW:   I went to get some more piss from my place, you see.  I just take his car across to my place, got some more grog, went back to where I was.

ABRAHAMS:   Too easy.

M3:  Yeah, that’s it.  Too fucken easy.

PETTIGREW:   They…they took his car the first time, fucken hell, they grabbed his car UI.

ABRAHAMS:   Well you left no evidence behind.

PETTIGREW:   UI nothin’.

6. PETTIGREW:   Apparently UI doing they’re job they’re trying to find out who done it, fucken, they don’t even fucken want to know who done it really, cos he was a paedophile anyway.

ABRAHAMS:   What, have they got that on record or they just know.

PETTIGREW:   Well they told me he was a paedophile.

M3:  There you go, so he musta been known for it.

PETTIGREW:   Mmm.  Been known for it.

ABRAHAMS:   You probably did the world a favour.

PETTIGREW:   Big one I think.

7. ABRAHAMS:   Did you have a little chat to this fella before…he…dearly departed?

PETTIGREW:   Oh I had a fucken couple to him, don’t worry about that.

8. PETTIGREW:   …I still can’t understand why they took that fucken hat.  Cos I said to that copper all day, UI left me fucken hat at home and I said fucken I’m not allowed out…

M3:  UI gun powder.

PETTIGREW:   Hey?

M3:  Just gun UI see I ca…every time I fire a gun see, I’m right handed but I shoot left handed and it all hits me in the side of the face in the eye and if I’m wearing a hat, it goes on that.

ABRAHAMS:   Does it?

M3:  And that’s why they take it.

PETTIGREW:   I didn’t even have that hat on.  Had a beanie on.

ABRAHAMS:   Did you?

PETTIGREW:   I just told em I always wear a hat.

ABRAHAMS:   Cool.

PETTIGREW:   I never go anywhere without me hat.

ABRAHAMS:   Oh so they’re not gonna find anything, they got the wrong hat.

PETTIGREW:   I’ve got it all covered mate, don’t worry, everything was burnt.  Disappeared.

1. PETTIGREW:  …I want Cowboy too.

ABRAHAMS:  You what?

PETTIGREW:   I want Cowboy too.

ABRAHAMS:   Why?  What did Cowboy do?

PETTIGREW:   Done a lot to me…

ABRAHAMS:   Cool.

PETTIGREW:   Not only that, fucken plays with kids.

ABRAHAMS:   Ooh, it’s a bad subject.  So you’re gonna take him out.

PETTIGREW:   Naturally.  Might take another year.

ABRAHAMS:   Yeah UI.

PETTIGREW:   This is what I can’t understand, they can’t understand how come I wait so long.

ABRAHAMS:   Mate patience is a virtue.

PETTIGREW:   Took me twelve months to get this gun/cunt, but I got him.

ABRAHAMS:   Yep.  That’s the one, I’ve had to just wait sometimes…

PETTIGREW:   UI when it all fucken quietens down mate…

ABRAHAMS:   When you’re on a revenge mission you just bide your time hey?

PETTIGREW:   I’ll…I’ll get another weapon, and he’ll go.

10. ABRAHAMS:   Nobody, nobody’s gonna give ya up hey?  They other’s aren’t gonna give you up are they?

PETTIGREW:   Oh no, no-one’s gonna give me up UI.

ABRAHAMS:   Do I know the other fella that did it?

PETTIGREW:   Hey.

ABRAHAMS:   Do I know the other fella that was with ya?

PETTIGREW:   UI Merv, probably do, I…I’m not saying nothing, you know.  You probably know the other fella.  UI I’ll do the same if it ever happens again, I’ll fucken do the same over and over again.

ABRAHAMS:   What if this Cowboy fella is um…

PETTIGREW:   Yeah, well that Cowboy is…next on the fucken list but he’s just gotta wait…just gotta wait a while now, he’s next.

ABRAHAMS:   I’ve heard something about this Cowboy fella.

PETTIGREW:   Yeah, he’s fucken tampered with fucken three girls in this town, kids, not girls, kids.  I just hate paedophiles, hate em.

ABRAHAMS:   Me too.

PETTIGREW:   Only one…only one place for the cunts, fucken dead.

11. PETTIGREW:   …the dead…deceased person, they didn’t find him till fucken ah…

M3:  Sunday or something.  UI they reckon that in the paper it’s got that…

ABRAHAMS:   Sunday morning, somebody went around to see him.

M3:  UI 4 pm and 8 am Sunday morn…between 4pm Friday and 8am Sunday he was shot, and the next door neighbour found him.

ABRAHAMS:   When did you do it?  Friday.

(children screaming in the background)

ABRAHAMS:   What was he there for few days?

PETTIGREW:   UI, something like that.

12. PETTIGREW:   I will not cop anyone UI with kids.  I don’t care who they are.

ABRAHAMS:   In some ways, I wish you hadn’t of  told me, but you get that.  Now I’m worried about ya.

PETTIGREW:   Don’t worry.  I can cover.

ABRAHAMS:   UI mate.

PETTIGREW:   I can cover nearly anything that fucken goes on in this town.

M3:  You’re covered anyway mate.

ABRAHAMS:   I think so too.

13. ABRAHAMS:   Yeah, but if they, UI if they took a sample of those rifles, they can trace those rifles, you know, surely they must have taken the bullet out of the fella, they can trace it…

PETTIGREW:   They’ve taken UI.

ABRAHAMS:  …no I’d get rid of it mate, destroy the fucken things.

PETTIGREW:   UI, oh don’t worry about that mate.  The one that done the job they’ll never find.

ABRAHAMS:   I would chop em up into little pieces.

PETTIGREW:   The one that done the job, they will never find, it’s gone.  History.”

14. Abrahams also gave evidence of a further conversation (untaped) with the appellant on the following Wednesday at the Commercial Hotel. Upon seeing a man walk through the bottle shop Abrahams said, “There’s the man that sells his missus for 40 bucks.” After further conversation the appellant said, “That’s another one we got to do.” Their companion Dodd then asked, “How many are there?” To which the appellant replied, “That’s it. We’ll do him after Cowboy”.

15. Ballistics evidence indicated that the deceased was lying on the ground when he was shot in the head. The remnants of the shotgun cartridges found at the scene were consistent with 12 gauge Winchester ammunition filled with no.2 shotgun pellets. The same type of ammunition was found in a caravan on the appellant’s property. There was further evidence that the wadding taken by the pathologist from the wound to the deceased’s back was similar in marking and configuration to shotgun wadding from 12 gauge no.2 shot. The pathologist also removed no.2 shot pellets from the deceased’s chest. In the head wound he found no.4 shot which was similar in size and shape to pellets loaded in 12 gauge Winchester Bushman no.4 shot. Both types of ammunition were found in the caravan on the appellant’s property. In short, both types of shot used to shoot the deceased were found at the appellant’s property.

16. It was the defence case that the jury should regard the comments of the appellant during the above conversations as merely untruthful bravado.

17. The appellant did not give evidence.

Grounds of appeal 1 and 2

18. These grounds are in the following terms:

“1.That the evidence of Abrahams concerning an attempt by the appellant to involve him in social security fraud was wrongly admitted.

2.That the learned trial judge failed to properly direct the jury about what use could be made of the evidence concerning the attempted social security fraud.”

19. Objection was taken to the details being given of the first meeting between Abrahams and the appellant, during which the appellant’s companion “Wayne” had proposed an attempted fraud on Centrelink by asking Abrahams to help him get his son on unemployment benefits by using Abrahams’ address. There was evidence of further contact between Abrahams and the appellant over the ensuing four months, including Abrahams agreeing to let the appellant store a truck at his place.

20. The learned trial judge admitted the evidence as going to the nature of the relationship between the two men, and the willingness of the appellant to discuss matters with Abrahams which might otherwise thought to be unlikely to be discussed with a mere passing acquaintance. Defence counsel conceded that if the evidence were excluded he would indeed submit to the jury that there was nothing more than a passing acquaintance between them. He also conceded that the evidence lacked the usual vice of propensity evidence and that no-one would think that involvement in petty fraud of that kind would make his client a likely candidate to commit murder. His objection, which was maintained, was that the evidence could not assist the jury in arriving at a conclusion that a confession to murder was more likely to have been made, and that it was unduly prejudicial.

21. A similar submission was made by Mr Chowdhury for the appellant on the appeal, contending that it could not be regarded as “relationship evidence”, such as is commonly received in cases involving sexual offences or offences of violence. However I do not think that “relationship”, “intelligibility”, “background” or “narrative” evidence is confined to any particular category of offence or cause of action. Quite obviously Abrahams could be permitted to say whether he had ever met the appellant before, and at least in broad terms to describe their relationship. Evidence of dealings between human beings cannot be given in a vacuum. Some evidence would be ordinary and unexceptional background detail evidence to render other evidence intelligible. But a question of degree emerges in the reception of such evidence. It is bounded by relevance. The question here is whether the Crown might prove that there was a sufficient degree of intimacy in their past contact so as to make more explicable the very relevant evidence of his later confessions to Abrahams.

22. Live issues existed between the parties, not only as to the truth of the statements attributed to the appellant, but also to whether the unrecorded statements had in fact been made. This is of some importance. The question whether a confession had been made used commonly to be raised in relation to alleged oral confessions to police before introduction of the present system of recording such events. In such contests a fairly wide range of surrounding circumstances might be regarded as relevant to such a question and independent evidence of such matters might properly be received. This conceivably might include evidence of the nature of the relationship and dealings between the confessor and the confessee. Another example where the prior relationship of a witness and an accused might be relevant is on the issue of identification, where it is of critical importance to know the extent of prior dealings which are the basis of the alleged recognition. The evidence in question here falls very close to the margin between self-corroboration (inadmissible) and concomitant circumstantial evidence (admissible). On the premise that it goes to credit only, it would have been preferable to allow the issue of “unlikely story” to be raised by way of cross-examination rather than anticipate it in evidence in chief.^[1]   But even on this premise the intention of the defence to raise such an issue had been made clear before his Honour ruled on the matter, and I am not prepared to say that his Honour was bound to insist on that sequence.  The objection of course is not as to the sequence, but to the fact that the evidence was admitted at all.

23. It seems to me that the evidence in question satisfies Stephen’s definition of relevance.

“The word ‘relevant’ means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non-existence of the other.”^[2]

Although the evidence in question would seem to have been of tenuous probative value, this was not so low that it could not justify the time, convenience and cost of litigating its proof, or to require exclusion on the ground of policy or case management principles.^[3]  In the present circumstances, I think that the evidence was sufficiently relevant to get over the admissibility hurdle.  It might be regarded as subsidiary evidence of potential relevance to whether the statement was made and whether it was likely to be true.  The real point as I see it, is whether the learned trial judge should have excluded such evidence because of unfair prejudice.

24. Mr Chowdhury described the evidence as “evidence of an uncharged act”. The evidence is suggestive of complicity by the appellant in attempted fraud by a companion, and therefore is capable of showing him in an unfavourable light. That however is not necessarily sufficient to require the evidence to be excluded. The exercise of the judicial discretion to exclude admissible evidence has been discussed in many authorities, and the leading cases were analysed in R v Hasler ex parte Attorney-General.^[4]  It is sometimes overlooked that the justification for exclusion of such evidence is high prejudice and relatively slight probative value.^[5]  In my view the evidence in question was of relatively light weight, both in relation to its probative value and to its potentially prejudicial effect.  It lacked the commonly found vice of revealing a tendency or disposition to commit the crime in question. Whilst I think that it would have been open to his Honour to have excluded this particular evidence, I cannot say that his Honour erred in permitting the evidence to be led.  I detect no error under this ground. 

25. I do not think that the appellant’s position is advanced by the fact that his Honour made no comment upon this part of the evidence in his summing-up. There was no request for any particular direction in relation to it, and a warning against using it to show propensity to kill would at best be a statement of the glaringly obvious, and at worst a positive disservice to the defence. It is inconceivable that the jury would be erroneously influenced in the least degree by such evidence towards convicting the appellant of murder. If the ruling were to be regarded as erroneous, this would be a proper case for application of the proviso.

Ground of appeal 3

26. Ground 3 states:

“The leading of evidence of the appellant’s statements made after the killing of the deceased that he intended to kill other persons has resulted in a miscarriage of justice.”

27. The appellant’s admissions contained statements of intention to kill other persons as well as the man he admitted killing. These persons are described as “Cowboy” and a man who was said to have sold his wife for $40. In order to exclude such evidence a dedicated exercise in editing the tape and transcript would have been necessary. No such request was made on behalf of the defence. Indeed no objection was taken to the admission of the whole of the relevant tape and oral statements.

28. Mr Chowdhury submitted that even in the absence of such objection, the trial judge should have excluded such evidence and that his Honour’s failure to do so has caused the trial to miscarry.

29. The difficulty with the submission is that the appellant’s statements of intention to kill other persons were integrally connected with his confession of having killed Mr Furey.  For example, the first relevant passage to which objection is taken (extract (i) in para 13 above) contains the statement “I want Cowboy too”.  It is further connected to his confession of killing Mr Furey through the same stated reason – hatred of paedophiles.  The same may be said of further statements such as “l’ll fucken do the same over and over again”, and “Cowboy is next on the fucken list”.

30. I do not see any compelling reason why the learned trial judge should have insisted that such statements be edited out of these confessions. They were an intrinsic part of the confession. The appellant made his statements in a way that showed the killing of Mr Furey to have been a part of a wider pattern or mindset. It will be remembered that the defence’s ultimate submission on the recorded interview was to concede that it had been made, but to contend that what he had said was exaggeration or bravado. The additional statements present a bigger picture and make the central admission more credible. I do not consider that fair play here demands that the appellant be protected from his own boast that he is a paedophile-killer, and that Mr Furey’s death was to be followed by others. This was not a gratuitous addition that might reasonably be excluded as adding little to the essential confession and as causing unfair damage in the process.

31. Similar matters have come before the courts, including in R v Hasler ex parte Attorney-General, whereupon a trial for rape of one girl the admission was in terms that he raped three girls including the complainant.  In that case de Jersey J (as he then was) said:

“The evidence did not become inadmissible in relation to the first count because it included admissions of rapes other than that charged.  Adopting the example given in argument by my brother Connolly, if A, charged with the murder of X, confesses in terms that he murdered X and Y, the reference to Y would not render the confession in those terms inadmissible on his trial for the murder of X.”^[6]

32. I do not find it necessary to discuss the question further. The evidence to which objection is now taken was so interwoven with the confession that the Crown case would not be fairly presented without it. The presentation of the full tape and of the appellant’s statements to his companions did not involve any error. There was no basis on which such evidence ought to have been excluded in the exercise of a judicial discretion.

Ground 4

33. Ground 4 states:

“The learned trial judge erred in failing to discharge the jury after the Crown prosecutor’s address, during which an alternative basis for conviction was suggested to the jury.”

34. This was not pressed but it was not abandoned either. It is enough to say that a temporary aberration by the Crown prosecutor during address was openly and absolutely withdrawn, and that the learned trial judge clearly instructed the jury that they could not convict the appellant unless satisfied beyond reasonable doubt that he had fired the fatal shot.

Conclusion

35. The Crown case against the appellant was a very powerful one. I do not consider that any error occurred or that the trial miscarried. The appeal against conviction should be dismissed.

36. DOUGLAS J: I have read the reasons for judgment of Thomas JA and I agree that the appeal against conviction should be dismissed

37. MULLINS J: For the reasons given by Thomas JA, I agree that the appeal against conviction should be dismissed.