R v Roughan[2009] QCA 21

SUPREME COURT OF QUEENSLAND 

1. KEANE JA:  On 1 April 2005 the decapitated body of Morgan Jay Shepherd, a 17 year old itinerant person ("the deceased"), was found in a shallow grave near Dayboro.  The head of the deceased was located nearby.  The deceased was last seen alive on the evening of Tuesday 29 March 2005 in company with the appellants, James Roughan and Christopher Jones, at the Sandgate home of Roughan.

2. The appellant was charged with the murder of the deceased. The Crown case of murder against the appellant was that the appellant had, either killed the deceased by a lethal blow struck with his own hand or, aided Jones in the killing of the deceased with the intent of causing death or grievous bodily harm to the deceased.^[1]

3. The appellant pleaded guilty to being an accessory after the fact to the unlawful killing of the deceased and to a charge of interfering with the corpse of the deceased. The Crown did not accept these pleas of guilty in discharge of the count of murder. On 28 July 2008 the appellant was found guilty by a jury of the murder of the deceased.

4. The appellant challenges his conviction on a number of grounds. I shall discuss these arguments after first summarising the evidence presented at trial.

The evidence at trial

5. The evidence of Dr Milne, the pathologist called by the Crown, was that the deceased died of head and neck injuries. The head of the deceased showed signs of axe or tomahawk wounds to the eye sockets, behind the left ear, and the right upper neck. These wounds could have contributed to the death of the deceased. The jaw was fractured and showed signs of cutting wounds caused by a saw or a knife. One tooth was fractured and another was missing. The head had been severed in the upper neck area at the level of the jaw bone. A tool such as a saw could have been used to sever the head. Because of the extent of decomposition which occurred before the post mortem examination, the pathologist was unable to say whether decapitation occurred before or after death. The pathologist could not exclude the possibility that death was caused by a single stab wound to the neck.

6. There were 51 wounds to the left leg and 68 to the right leg. These wounds were superficial and not life threatening. There were 10 stab wounds to the buttocks, three to the upper back and one to the abdomen.

7. According to the pathologist, all of the leg wounds were, mercifully, post mortem. The wounds on the body could have been produced with a single knife, although the use of a second knife could not be excluded.

8. The missing tooth was found in the appellant's back yard. A tomahawk, a knife and two saws were located by police during a search of the appellant's residence. A saw was found at the site where the deceased was buried. The DNA of the deceased was found upon the tomahawk, the knife and the saws.

9. There was evidence that on the evening of 29 March 2005 the appellant, Jones and their friends, Isaac Murdoch and Christopher O'Brien, attended Redcliffe Hospital where Jones received medical attention for a stab wound to the hand.

10. Murdoch gave evidence that he lived in the same block of flats as Jones. Murdoch said that Jones and the appellant came to his flat and asked him to drive them to and from the Redcliffe Hospital. O'Brien accompanied them. On the way to the hospital in the car Jones said in the appellant's presence that the appellant had accidentally stabbed Jones while they were mucking around.

11. At the hospital Mr Ley, a security guard, saw that the appellant had blood on his shirt. The appellant said that they had been playing with knives and he had cut his mate's hand with a knife.

12. Murdoch gave evidence that on the morning of Wednesday 30 March 2005 the appellant and Jones told him that they wanted to borrow his car to move some furniture. Murdoch said that he would only agree to let them use his car if he drove. He saw Jones and the appellant put a roll of carpet into the boot of his car; he did not see the body as it was being loaded into the boot. Jones directed him to drive into bushland at Dayboro. Jones and the appellant carried the roll of carpet into the bush: Murdoch was told to stay in the car. The appellant carried a plastic bag which Murdoch noticed contained the victim's head. When Jones and the appellant returned to the car Jones told Murdoch that he was now an accessory to murder. Jones also told Murdoch who the deceased was. Murdoch then drove them home.

13. Murdoch said that on the evening of 31 March, he, Neuherz and the appellant were present at a meeting in the garage at Jones' unit where there was a conversation about re-burying the body of the deceased, but not how the murder had occurred. Murdoch said that O'Brien was not present for this conversation but joined the group after the conversation had ended. Later on the evening of 31 March, Murdoch drove Jones, O'Brien and Neuherz to rebury the body of the deceased. They used tools stolen by Jones on the way.

14. O'Brien gave evidence that on the evening of Thursday 31 March in the garage at Jones' unit, the appellant, O'Brien, Murdoch and Jones were present. O'Brien's evidence was that Neuherz was not present for the conversation to which I will now refer although he agreed with a leading question suggesting that Neuherz was present at a later stage in the evening. O'Brien said that Jones said that he had got into an argument with the deceased and "stomped him a bit, then stabbed him … for a bit, then gave [the appellant] a knife and [the appellant] stabbed him for a bit." O'Brien testified that Jones said that the appellant had removed the deceased's head with a saw, and Jones had pulled it off. O'Brien said that Jones said these things in the appellant's presence, and that, at this point in the conversation, the appellant was listening and nodding.

15. O'Brien testified that Jones said that the appellant put his hand up the neck of the severed head of the deceased as if it were a puppet and that the appellant had put the deceased's head on a stake in the back yard. O'Brien said that the appellant denied these assertions.

16. O'Brien gave evidence that when they were reburying the body at Dayboro, Jones told him that the appellant had "rolled" the head of the deceased down the hill when they had previously dumped the corpse.

17. In cross-examination, O'Brien reiterated that Neuherz was not present during the conversation of the evening of 31 March. He also said that the appellant said nothing during this conversation save to make the denials referred to in the preceding paragraph, and that the only time he saw the appellant nodding was when Jones said that the appellant had cut off the head of the deceased. O'Brien also accepted that at the committal hearing he had given evidence about those present at this conversation and did not name the appellant as having been present.

18. For his role in the removal of the body of the deceased, O'Brien was charged. He was sentenced pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld).  At the committal of Jones and Roughan, O'Brien changed his evidence from the statement he had provided to the police, but he was alerted to the prospect of being resentenced during cross-examination, at which point he reaffirmed the truth of his s 13A statement.  O'Brien said he was on drugs two days before the day of his original statement to police.

19. Neuherz said in his evidence-in-chief that he could recall a meeting at Jones' unit where he was present with the appellant, Jones, Murdoch and O'Brien. He said that Jones said to the appellant: "Why did we do that?", to which there was no response. Jones said to the appellant: "You're the one who cut his head off with a saw." Roughan did not deny it. Neuherz recalled Jones saying that the appellant had stabbed at the body and missed and hit Jones' hand. Neuherz also said that Jones said that the appellant had rolled the deceased's head at him.

20. In cross-examination, Neuherz said that he could not recall precisely what the appellant had said. Neuherz agreed that at an earlier trial, when he was asked about whether he was sure that the appellant was present, he had said: "I'm not sure, but I'd say so because he – we was all there." He conceded that when he was asked at the committal proceedings whether the appellant was present, he had replied: "I don't know." He conceded that it may be that the appellant was not present for the conversation.

21. Neuherz said that, when he gave his original statement, he was on drugs, was drinking and lacked sleep. He was sentenced as an accessory after the fact in respect of the murder of the deceased pursuant to s 13A of the Penalties and Sentences Act on the basis of his undertaking to provide evidence in the prosecution of Jones and Roughan. 

22. The appellant gave an account of the killing to a neighbour, Ms Hore. She gave evidence that in the early evening of 31 March 2005 the appellant told her that Jones and the deceased had come to his place to drink. After they had been drinking for some time, the appellant went inside his house and emerged to see Jones punching the deceased. The appellant saw that the deceased had difficulty breathing at this stage. The appellant said that he then saw Jones come from the house with a knife and proceed to stab the deceased many times. Ms Hore said that she asked the appellant why he did not go into the street to get some help, and the appellant said that Jones threatened to kill him. The appellant said that Jones went to the shed from which he fetched a saw and proceeded to dismember the deceased. The appellant suggested that the deceased was dead as a result of being stabbed through the neck, and that Jones continued his attempts to dismember the body with an axe. The appellant said that Jones threatened to kill him. They wrapped the body in a carpet, and the next day a friend drove them to Dayboro where they dumped the body. The appellant told Ms Hore that he wanted to go to the police but was afraid of Jones. Ms Hore said that the appellant was sober when he spoke to her.

23. Mr Dion Butterworth, who lived next door to the appellant, gave evidence that, in the early hours of Wednesday 30 March, he heard someone next door say: "James, if we are going to do this, we have got to do it now."

24. After the appellant and Jones had been charged, and were being transported to prison together, their conversation was secretly recorded. The following passages are important:

25. The appellant did not give evidence at his trial.

The grounds of appeal

26. The grounds of appeal on which the appellant relies are as follows:

"(1)The evidence of incriminating statements made by Jones and/or the Appellant in the conversation with Murdoch, O'Brien and Neuherz:

(i)was an indispensable part of the Crown case; so

(ii)the jury ought to have been, but were not, directed that they could not convict the Appellant without being satisfied beyond reasonable doubt that the Appellant was present during the conversations and that the things relied upon by the Crown were in fact said in his presence.

(2)The verdict of the jury was:

(i)unsafe and unsatisfactory;

(ii)unreasonable;

(iii)against the weight of the evidence.

Particulars

It was not open to the jury to find that the Appellant was present at relevant times with Murdoch, O'Brien and Neuherz.  It was not open to the jury to conclude that the Appellant had inflicted blows upon the deceased before his death.

It was not open to the jury to conclude that the Appellant had aided Jones to murder the deceased."

27. Before I turn to discuss the arguments advanced in support of these arguments, it is necessary to note that, as Senior Counsel for the appellant noted on the hearing of the appeal, the principal focus of the Crown was upon the case that the appellant was criminally responsible for the murder of the deceased because he had aided Jones in committing the murder. In this regard, it is well-established that mere presence at the commission of an offence is not of itself sufficient to constitute aiding within the meaning of s 7(1)(c) of the Criminal Code 1899 (Qld).  However, as Macrossan CJ said, with the approval of McPherson J, in R v Beck,^[2] "[v]oluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding." 

Ground of appeal (1):

The need for a direction as to the evidence of Jones and Neuherz

28. The learned trial judge did give the jury some direction as to the use they might make of the evidence of O'Brien, Neuherz and Murdoch. His Honour said:

"Now, if you are persuaded to accept O'Brien's evidence or Neuherz's evidence or Murdoch's evidence, then there's the further question of what you could make of it. In particular O'Brien and Neuherz, but not Murdoch, have given accounts, different accounts, of things there were said in the garage on that Thursday night. But unless you are satisfied that in any respect this was said in the presence of the defendant, you cannot use it against the defendant. If you are satisfied that it was said and in the presence of the defendant, there's a further question for you, which is whether the defendant said something which you would think accepted or signified his agreement to what Jones was saying had happened.

…

[I]f you are satisfied by the evidence of Neuherz or O'Brien or both, that things were said in the garage by Jones of what happened on the Tuesday night, and things were said by Jones about the defendant's participation in that, there's then a question for you as to what effect you'd give to it and whether you're satisfied, if you accept the evidence, that a reaction, or lack of reaction, by the defendant was, in effect, the defendant agreeing with what was being said by Jones.

…

Mr Lynch, told you in his argument that if you are uncertain that the defendant was there at the time that Jones was recalling the events of the Tuesday night, if you are in doubt about that, you can't use it against the defendant.

As a matter of law that is right. If you are not satisfied that the defendant was there when any account was given by Jones of the sequence of events, then you can not use that against the defendant."

29. The appellant's first contention is that this direction did not instruct the jury that they could not act upon the evidence of Jones and Neuherz to convict the appellant unless they were satisfied beyond reasonable doubt that the appellant was present during the conversations in the garage at Jones' place on 31 March and that statements inculpatory of the appellant were made in his presence. In this regard, the appellant relied upon the decision in Shepherd v The Queen^[3] where the High Court affirmed the proposition that if a conclusion of fact is an indispensable intermediate step in the process of reasoning towards an inference of guilt, that intermediate conclusion must be established beyond reasonable doubt.

30. Mr Copley SC, who appeared for the respondent on the appeal, argued that when the learned trial judge's direction is understood in context, his Honour's references to the need for "satisfaction" as to the material aspects of the evidence of Neuherz and O'Brien could only have been understood by the jury as referring to "satisfaction beyond reasonable doubt". It is not necessary, in my respectful opinion, to resolve this argument because the alternative argument advanced by Mr Copley persuades me that the appellant's first ground of appeal must be rejected.

31. Mr Davis SC argued for the appellant that a conclusion that the evidence of Neuherz and O'Brien of the conversation of 31 March 2005 established that the appellant accepted that he had an active role in the killing of the deceased was an indispensable step in reasoning to a finding that he was guilty of the murder of the deceased. On this footing, Mr Davis proceeds to argue that the jury could not have been satisfied beyond reasonable doubt that the appellant was present when the conversation of which Neuherz and O'Brien gave evidence occurred. In support of this aspect of his argument, Mr Davis points to the evidence of Murdoch (that O'Brien was not present and that, in any event, the conversation of which he gave evidence did not occur) and the evidence of O'Brien (that Neuherz was not present). He also points to other circumstances which would cast doubt on the reliability of O'Brien and Neuherz as witnesses, namely that they had an incentive to maximise the culpability of the appellant and that they were affected by the consumption of drugs at the time of their statements to the police.^[4]  It may be accepted that these points were matters which might arguably have led the jury to conclude the parts of the evidence of O'Brien and Neuherz which were inculpatory of the appellant as unreliable.  But I am persuaded by Mr Copley that the conclusion that the appellant assented to suggestions that he was involved in killing the deceased on 31 March 2005 was not an "indispensable intermediate step" in the process of reasoning towards the inference that the appellant was guilty of murder. 

32. The argument advanced for the appellant depends in part on the appellant's assertions to Ms Hore that he was no more than a passive observer of Jones' killing of the deceased and that he took no steps to stop Jones or to summon aid because of fear of Jones. This aspect of the evidence is said to give rise to a hypothesis consistent with innocence which could not reasonably be rejected by the jury. In my respectful opinion, this part of Mr Davis' argument cannot be accepted.

33. The jury were entitled to reject the self-serving aspects of the appellant's statements to Ms Hore. The conversation between Jones and the appellant in the prison van set out above afforded good evidence of the nature of their relationship with each other and their attitude to the killing of the deceased. It revealed that the appellant was not afraid of Jones, and, indeed, was contemptuous of him. It is also striking that in that conversation the appellant did not assert Jones acted independently of the appellant in the killing of the deceased, or that the appellant had played no part in the assaults on the deceased which led to the death.

34. If the appellant's self-serving assertion to Ms Hore is disregarded, the evidence reveals the following:

1. the deceased met a violent death at the appellant's house while in company with both Jones and the appellant.  There could be no doubt that the deceased was brutally murdered by one or other or both of the appellant and Jones.  There could be no doubt that whoever inflicted the lethal wounds upon the deceased intended to kill him.  The knife injury to Jones' hand strongly suggests that at some stage, at least, the appellant wielded a knife to stab the deceased, while Jones was holding the deceased and that the deceased was still alive.  On the view most favourable to the appellant, however, he may not have struck the deceased a fatal blow, but then the question becomes whether he was "merely present" at the slaughter of the deceased or whether his presence during the murder was voluntary and deliberate so as to amount to wilful encouragement;

2. the appellant and Jones co-operated in the disposal of the body - the evidence about the disposal contains no suggestion that the appellant's co-operation was attended by any expression of fear of Jones.  The evidence of the active involvement of the appellant in the concealment of the dismembered body of the deceased^[5] gave the jury a rational basis for inferring that the appellant had also actively participated in the acts which led to the death of the deceased;

3. there is no evidence that in any statement by the appellant to Murdoch after the killing of the deceased the appellant suggested that he regretted the murder of the deceased:  it is impossible to imagine, as a matter of ordinary human experience, that if the appellant had indeed been only a passive bystander at the killing of the deceased, he would [not] have said so to friends such as Murdoch.  What is striking in the evidence of Murdoch in relation to the discussions of the death of the deceased between him, Jones and the appellant is that there was no hint by the appellant that he was not involved in the killing or [that] the death of the deceased came as a disagreeable surprise to him.  There was no suggestion that he made any protest about, or attempt to prevent, the savage assault which was plainly occurring on the deceased.  Nor was there any suggestion in Murdoch's evidence that Jones had made any threat against the appellant to secure his co-operation in the assault on the deceased; and

4. there was no suggestion by the appellant in the conversation in the prison van that the appellant objected to the murder of the deceased.

35. The jury could reasonably reject the hypothesis that Roughan's involvement had been limited to his mere presence at the scene. There was a strong case that the appellant was, to say no more, voluntarily and deliberately present at the killing of the deceased by Jones so as to encourage Jones in the murder.^[6]  Even if the jury could not find that Roughan struck a lethal blow with his own hand, there was a strong basis on which they were entitled to conclude beyond reasonable doubt that the appellant aided Jones in the killing of the deceased rather than being merely a passive bystander.

36. In summary as to the first ground of appeal, the appellant's contention that the conclusion that the appellant acknowledged his participation in the killing of the deceased in the conversation of the evening of 31 March 2005 was indispensable to a sound inference of guilt cannot be sustained. For that reason, a direction by the trial judge of the kind discussed in Shepherd v The Queen was not necessary to ensure a fair trial and a sound verdict.

Ground of appeal (2):

37. Mr Davis accepted that if the evidence of O'Brien and Neuherz was not essential to a reasonable conclusion that the appellant was guilty of murder, the appeal could not succeed on the second ground advanced on behalf of the appellant. It is, however, desirable that I state my reasons for concluding that the second ground of appeal is not established.

The sufficiency of the evidence of murder and the reliability of O'Brien and Neuherz

38. The reliability of the evidence of O'Brien and Neuherz was challenged on the basis that they were accomplices in the disposal of the body of the deceased who had been given reduced sentences based on their promises of co-operation with the authorities in the prosecution of the appellant, and on the basis of differences in their evidence and the evidence of Murdoch. It was, however, open to the jury to regard the evidence of the appellant's assent to the suggestions that he had an active role in the killing of the deceased as reliable. Once again, the evidence of the prison van conversation between Roughan and Jones is relevant.

39. The evaluation of the reliability of the oral testimony of witnesses is the central function of the jury. The jury could have come to the view that the aspects of their evidence inculpatory of the appellant were reliable even though other aspects of their evidence were not. There was no suggestion that O'Brien or Neuherz had played a role in the killing of the deceased. Thus they had no strong motive to exaggerate the case against the appellant in order to put themselves in a better light. And the jury may have regarded other aspects of the evidence in the case as supporting the reliability of the inculpatory evidence of O'Brien and Neuherz. The jury were entitled, for example, to regard Ms Hore's evidence of the appellant's statement as to how the deceased had been killed as providing some support for the reliability of O'Brien's evidence that Roughan accepted Jones' statement that they had "killed someone by stabbing him".

40. The reliability of the evidence of O'Brien and Neuherz in relation to the nature and extent of the appellant's participation in the conversation of the evening of 31 March 2005, is also bolstered to some extent by the tape recording of the conversation between the appellant and Jones in the prison van. The appellant's statements in the course of that conversation show that the appellant is an individual who professes to exult in his indifference to the views of others about him. The picture of the appellant which he presents of himself tends to allay a concern which might otherwise arise that the accounts by O'Brien and Neuherz of the appellant's participation in the conversation of 31 March should be regarded as unreliable because, in the ordinary course of human experience, people do not normally acquiesce, with calm indifference, in suggestions of the kind of depravity which Jones is said to have attributed to the appellant.

41. For these reasons I am of opinion that the jury were entitled to use the evidence of O'Brien and Neuherz of the conversation of 31 March 2005 against the appellant.

Conclusion and orders

42. There is no substance in either ground of appeal.

43. The appeal should be dismissed.

44. MUIR JA:  I agree with the reasons of Keane JA and with the order he proposes.

45. FRASER JA:  I have had the advantage of reading the reasons of Keane JA.  I agree that the appeal should be dismissed for those reasons.