R v Deemal-Hall
[2004] QSC 168
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R v Deemal-Hall[2004] QSC 168
R v Deemal-Hall[2004] QSC 168
SUPREME COURT OF QUEENSLAND
CRIMINAL JURISDICTION
JONES J
Indictment No 21 of 2004
THE QUEEN
v.
GWENDOLINE CECILY DEEMAL-HALL
CAIRNS
DATE 14/04/2004
JUDGMENT
HIS HONOUR: This is the application by Gwendoline Deemal-Hall. By indictment dated 2nd February 2004 Gwendoline Deemal-Hall is jointly charged with Howard Darkan and Andrew McIvor with having, on 13 January 2003, murdered Kalman Toth.
The deceased man had been a de facto husband of the applicant, although that relationship ended some two years before January 2003. There had been, however, some continuing contact between the applicant and the deceased. There was also evidence of some ill-will between them.
The prosecution alleges that the applicant procured the co-accused, and one Shannon Bowen, to assault the deceased and as well alleging that she aided them in the assault. The assault in which the three men participated to varying degrees was prolonged and violent and undoubtedly caused the death. Mr Bowen has pleaded guilty to an assault occasioning bodily harm and will give evidence at the trial.
The evidence admissible against McIvor and Darkan includes their admissions to police officers and to others, direct evidence from Bowen as to their actions and conversations, and circumstantial evidence from a number of sources.
The respective cases against McIvor and Darkan are clearly defined. The case against the applicant, being a secondary participant, requires proof of her knowledge that the active participants intended at least to do grievous bodily harm or alternatively, if there is reliance upon a common purpose, to inflict grievous bodily harm, evidence of the scope of that plan and the degree of violence intended.
The applicant seeks a directional ruling pursuant to section 590AA(2)(b) of the Criminal Code which, linked with section 597B, gives the Court power “to direct that the trial of accused persons or any of them shall be had separately from the trial of the other or others of them”. That power may be exercised at any time before or during the trial.
The applicant concedes that section 568(12) provides a prima facie basis for the joinder of this charge because the allegations of criminal liability against all accused arises “substantially out of the same facts or out of closely related facts”. The prosecution contends that the evidence goes further than that. The applicant argues that the prosecution case is, however, starkly different from that raised against each of the co-accused.
Each of the co-accused has made admissions implicating himself but including allegations against the applicant which are not admissible against her. The argument goes that judicial directions which, inevitably given, will not be implemented by the jury because the matrix of facts is “too complex and counter-intuitive”.
The applicant, in written submission, identifies specific passages of the evidence which the prosecution is expected to rely upon to establish the case against each of the co-accused, and to establish that there was a common purpose contemplated by section 8 of the Criminal Code, or an undertaking engaged in by the three accused in reliance upon section 7(1) paragraphs (b), (c) and (d), combined with section 9 of the Criminal Code. In particular, the prosecution expects to rely upon the evidence of Mr Shannon Bowen.
Bowen's evidence, recorded in his statement to the police and in his evidence at the committal proceedings, asserts that in the presence of the applicant he was invited by Darkan, speaking on behalf of the applicant, to participate in the assault in terms that the applicant wanted someone “to get into” the deceased and “to fix him up”. The applicant offered to pay for this service.
Some time later in the same evening, in the white van driven by the applicant to a park where the attack ultimately took place, he alleges the applicant said: “I'll fix you up for this. Just give him a good hiding”. The applicant left the three men at the park in a secluded place and later returned with the deceased as a passenger in the white van. Those two left the van to join the three men. The deceased, after a short discussion, sought to leave. He went back to the van and sounded the horn for a long period. The applicant then sought assistance from Darkan to persuade the deceased to leave the van. Darkan obliged, but the deceased turned on the headlights, which shone directly upon Darkan and McIvor.
The applicant then entered the vehicle and drove it to the place where the group had been previously waiting. When the deceased alighted from the vehicle he feigned a heart attack and asked to be taken to the hospital. Instead, he was set upon by the three men and violently assaulted.
In particular, he was attacked with a heavy stick, which other evidence establishes was taken from McIvor's residence to the scene and returned with bloodstains on it. For this to have occurred it was transported in the applicant's vehicle and most likely in the front passenger area of it.
The applicant watched the attack without, on one version, making any move to intervene. However, Mr Bowen claims that he stopped the attack after which Andrew McIvor left the scene on foot. The applicant started the vehicle and left the scene in the company of Darkan and Bowen. Whilst in the vehicle the applicant paid Bowen $50 and said, “I know that this $50 is not enough, but I'll fix you up when I come back next week”.
The direct evidence from Bowen will raise questions of what was intended and whether the applicant's role came within the scope of sections 7 and 9. But these are jury questions and his evidence, if accepted, will be an important part in the prosecution case. But the evidence upon which the applicant focuses, for the purpose of this application, is that which is admissible against either of the co-accused but not against her, but which will be led in the case against those respective accused.
Mr Boe, on behalf of the applicant, has prepared two schedules, one for each accused, detailing the evidence of that kind. It is not necessary for me to deal with the evidence, some of which may be the subject of other applications about its admissibility on the basis of its prejudicial effect.
One particular passage from the record of interview of McIvor relates how the applicant drove him to his house to collect the stick, and for Mr McIvor to put on steel-capped boots, and then drove the three assailants to the park. The relevant passage from the interview reads:
“Did you see her (applicant) have a drink?— No. I didn't see her have a drink. So we were headed where the table with Shannon and Howard and then Gwen just said, ‘Wait here, I won't be long’. So she went and got that lad (the deceased).
How did you know she was going to get that lad?— She said she came with the lad in the bus. He didn't want to jump out of the bus. She drove right into the park.
On the creek side of the path?— Yeah. She jumped out and tried, like, to get him out.
Where was the bat?— It was behind the barbecue thing there.
How did it get there?— Oh, Howie put it there.”
From Darkan's record of interview the following passage appears:
“Did somebody make a plan? You said that you were going to bash him?— Bash him?
Yeah. She did make a plan?— Yeah, she did.
Okay. All right. What was the plan?— She wanted him-she wanted to get him in the dark.
She wanted to get him in the dark, how was that to happen?— She wanted us - she wanted us to bash him.
There must have been more said than that, do you reckon, than just ‘go and bash him’?— Mmm, she told us that. She said to us, ‘Youse two wait here. Youse wait here while I go
Right?— and escorted back down there.
Right. Wait where?— Down at the pub.
Okay. And what did she do?— She brought him back down. To brought him back down to us. He was in the vehicle and he didn't want to jump out, so she made him [indistinct] jump out.
Was the weapon there?— Yeah, it was there.
How did it get there?— No it was in the bus. She hid the weapon - she hid the weapon.”
The use of the vehicle driven by the applicant to deliver, firstly the assailants and then the deceased to the scene, the reluctance of the deceased to leave the vehicle, and the applicant's action in persuading him to do so, are matters on which Bowen gives direct evidence. He gives evidence also of the arrangement that he would be paid, and of the actual payment.
Mr Boe contends that there is no evidence admissible against the applicant that she had knowledge that her co-accused intended to inflict grievous bodily harm on the deceased or that she counselled or procured them to do so.
That submission is challenged by the prosecution which points to the independent evidence about the ownership of the stick, where it was located, its transportation to the scene in the vehicle driven by the applicant. The learned Crown Prosecutor contends that there is other significant evidence of the applicant's involvement upon which the jury can rely to determine the issues raised against the applicant.
Those matters, of course, go to the question of whether the elements of the offence can be made out against the applicant but the question ultimately for me on this application is whether the joinder of the charge against the applicant with those against her co-accused raises a real risk of significant and unjustified prejudice. The Queen v. Crawford, 1998, 2 QLR 447.
The prima facie approach of the Court on applications of this kind is that the person charged with jointly committing a crime should be tried together. The Queen v. Box and Martin, 2001, QCA 272, Webb v. the Queen, 1994, 181 CLR 41 particularly at page 89. The policy reasons and the public interest underpinning that approach are well settled. They are referred to in Webb, supre, and repeated in Queen v. Aboud and Stanley, 2003, QCA 499. See particularly per Mackenzie J at paragraph 39.
Having considered those cases to which I have been referred and the detailed submissions on the evidence made by both counsel the view that I have is that the nature of the evidence prejudicial to the applicant, but inadmissible against her, likely to emerge from the evidence admissible against her and each of her co-accused, is not such that is markedly unusual or different from what occurs in cases of this kind. The evidence of Bowen and circumstantial evidence from other witnesses means that the strength of the respective cases is not so disproportionate as to cause undue prejudice for the applicant.
Clear directions from the trial Judge as to the use that can be made of the out of Court statements of the co-accused would, in my view, be sufficient to ensure that the applicant will receive a fair trial. Obviously if the situation changes during the course of the trial it is open to the applicant to make a further application of this kind but on the material before me I take the view that the applicant is in a position where she can receive a fair trial. Accordingly, I dismiss the application for a separate trial.
The application also seeks a declaration for particulars and the names of the witnesses upon whose evidence the prosecution intends to rely. In a case of this kind it is important that the Prosecutor give particulars of allegations to be made against each accused. Mr MacKenzie advises that this is the responsibility of the Prosecutor assigned to the case. As the hearing dates have not yet been determined the Prosecutor has not yet been allocated to this case.
There is no suggestion that the prosecution will not provide particulars in response to the request but I should indicate that if there were any reluctance to provide particulars it is most probable that the Court would order that they be provided. However, the timelines within which particulars should be provided must await the fixing of the hearing dates. I expect that is a matter which we can turn to now.