R v Swan and Smith[2012] QSCPR 7

SUPREME COURT OF QUEENSLAND

1. [1]
   The defendants, Mr Swan and Ms Smith, are charged with the murder of Amanda Quirk on or about 1 April 2010. Mr Swan has applied for a separate trial from Ms Smith. There is jointly admissible evidence against each of them from a witness called Michelle Salkeld, otherwise known as Mondientz. There was also a pretext telephone call between the two defendants which is jointly admissible. Each of the defendants is running a “cut-throat” defence, accusing each other of the act that led immediately to the death of the deceased.
2. [2]
   Ms Salkeld’s evidence is of events that occurred before the death where she says both of the defendants attacked the deceased during a car trip which included an event where she says that the defendant Swan, after the car had pulled over the side of the road, dragged the deceased into some bushes using a rope around her neck and attacked her there. Mondientz’s evidence ceases before the deceased was taken to a house where she was killed.  It recommences after the death when she says she went to the house and assisted Swan and Smith to remove the body. Mondientz has pleaded guilty and been dealt with in respect of the charges she faced dealing with assault occasioning bodily harm in company and being an accessory after the fact to murder.
3. [3]
   The house where the deceased died was one where she lived with both defendants. They were all drug users as was Mondientz. Mondientz was angry with the deceased because she believed the deceased had revealed to others that she was working as a prostitute and that led to the assault on the deceased in the car before her death.
4. [4]
   What occurred in the house is the subject of each defendant’s interview with police which is not admissible against the other defendant.
5. [5]
   Both defendants say that the deceased met a violent death and on each version there is no issue that the death may have been accidental. It is simply that each defendant claims that the other was the sole perpetrator of the violence which caused the deceased to die.
6. [6]
   Swan later admitted to police that he disposed of the deceased’s body in New South Wales where she was discovered in a decomposed state some time later. When Swan was initially approached by police he lied to them and told them that the deceased had gone out to a nightclub and he had not seen her since. Smith spoke to police on 7 April 2010 and revealed what she said happened. They took statements from her. She also took part in a pretext telephone call to Swan that day which can be characterised as Swan putting forward a plan of what to say to police, mirroring a version he had put out earlier that the deceased had gone to a nightclub and had not been seen since, and in which he told Smith things that she did not appear to have known previously: namely that the body was still in one piece, that it was unlikely to be found, that it was no longer in Queensland and that it was buried. In fact, it was only covered with bracken and branches, but otherwise those facts were true.
7. [7]
   When Swan was interviewed by police he gave a relatively elaborate account of his contact with the deceased and his movements over the previous week, said that he had no idea of how blood could have been found in the boot of Ms Smith’s car but, after he was played the pretext telephone call between himself and Smith, admitted that he was aware of the deceased’s death and then gave a detailed account of what he said had happened and how he had disposed of the deceased’s body.
8. [8]
   His version was that he was present when the deceased had been assaulted by Mondientz and Smith but denied any violence himself except to the minor extent of having slapped the deceased at some point. He agreed that he tied her up with duct tape back at the house and later retied her when she had managed to free herself but said that he had not been violent to her, saying instead that Smith had declared her intention to assault the deceased with a heavy object while she was tied up in a bedroom, that Smith had then gone into the kitchen, entered the bedroom and come out and said the deceased was dead.
9. [9]
   He said he attempted mouth-to-mouth resuscitation unsuccessfully and then called Mondientz to assist with disposing of the body. He also admitted that he stole money from the dead woman’s bank account that night in order to purchase methylamphetamine.
10. [10]
    Because of the decomposition of the deceased’s body the exact cause of death and the degree of violence causing death is unable to be determined.
11. [11]
    The prosecution case will be that, on Mondientz’s evidence, the pretext telephone call and Swan’s actions before and after the death as described in his record of interview, it can satisfy the jury that he took an active role in the violence that led to the death with an intention to do at least grievous bodily harm to the deceased. Alternatively, the Crown will submit that, on Swan’s own account of his actions and those of Smith, he was a party to the killing of the deceased in circumstances which would render him guilty of murder.
12. [12]
    Smith’s statement to police in respect of the death implicates Swan, saying that, at the house, Swan tied the deceased up, taped her mouth, kicked her in the side of her head, threatened Smith herself, dragged the deceased into a bedroom where there were sounds consistent with him punching or kicking her, asked her for her PIN for her bank account, burnt her hands with a cigarette lighter, threatened to slit Smith’s throat, then dragged the deceased back towards the bedroom from which she had briefly escaped, where he started kicking her in the stomach, in the head and then jumped on her head with all his weight. The deceased then began to convulse and stopped breathing on Smith’s evidence, both in statements she gave to police and in an interview they recorded with her.
13. [13]
    Mr Godbolt for the applicant, recognised that the authorities make it clear that there are strong reasons of principle and policy why people who are charged with committing an offence jointly ought to be tried together and that those reasons are strengthened rather than weakened where each of two accused deploy the “cut-throat” defence.  Nevertheless he argued that this was a particular case where a separate trial should be ordered.  He submitted his client would be prejudiced by the potential effect of hearing the evidence, inadmissible against him, of the statements and record of interview given by Ms Smith.  The jury’s consideration of his case would be affected by hearing that evidence even if they were directed not to take it into account.
14. [14]
    In that context he addressed two issues in particular, arguing first that the material in Smith’s interview was overwhelmingly prejudicial to his client such that no direction by the trial judge could be reasonably adhered to by the jury and, secondly, that it would be necessary for the jury to consider the credibility and reliability of Mondientz. He argued that her credibility would be subject to serious attack because of evidence that she suffered from schizophrenia, was a drug addict and had been a prostitute. In that context he argued that Smith’s interview supports what Ms Mondientz says such that it would be impossible for the jury to disregard aspects of her evidence supported by the interview with Smith.
15. [15]
    In respect of his first point, he submitted that Ms Smith’s interviews included a number of critical references by her to Swan, including allegations that he had been in prison, was involved with drug dealers, had possession of a gun, had been cruel to the deceased’s cat, had engaged in drug use, although he volunteered that all of the parties appeared to have been drug users, and had committed assaults on the deceased in a way which was detailed, graphic and terrible. He also pointed out that Ms Smith claimed in the interview to have been in fear of her life and scared and had referred to Mr Swan asking the deceased for her bank account PIN. Smith also referred to an episode where Swan was said to have burned the deceased’s hands, something which can neither be verified nor contradicted on the forensic evidence because of the state of decomposition of the body when it was found.  He also referred to threats by Swan to Smith together with evidence by her of her fear of Swan.
16. [16]
    He also argued that the tenor of the interview with the police officer suggested that the police officer was supportive of Smith.
17. [17]
    Mr Power, in respect of the description of events by Ms Smith in her interview, inadmissible against Mr Swan, argued that the directions to be given by the trial judge would be sufficient to counter that prejudice, pointing to the policy reasons behind the general rule that jointly charged offenders should be dealt with at the same trial, namely the wish to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other; see Webb & Hay v The Queen (1994) 181 CLR 41, 88-89.
18. [18]
    Reference may also be made to Ali v The Queen (2005) 79 ALJR 662, 670 where Callinan and Heydon JJ said (at [58]):

“Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial. There were no special or other features of the case requiring that they be tried separately. That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately… A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged.”

19. [19]
    Mr Power pointed out that there were no mental gymnastics involved in separating out the different versions given in Smith’s interview compared to Swan’s interview.
20. [20]
    In respect of the argument about the evidence of Mondientz being supported by the inadmissible statement of Smith he relied upon the principle that in a “cut-throat” murder case it is almost essential that the accused be tried together but pointed out that the case against Swan was strong in its own right as his own interview made him a party present when the two women assaulted the deceased, he tied up the deceased in circumstances where Smith, on his version, said to him that she intended to assault the deceased. He argued that prejudice would only exist if the jury disregarded the directions and pointed to decisions such as R v Belford & Bound (2011) 208 A Crim R 256 and R v Roberts & Pearce [2012] QCA 82 as examples where there could be said to have been more prejudicial statements in the co-accused’s interviews than exist here.
21. [21]
    In Belford & Bound, 287 at [106] Fraser JA referred to the existence of admissible evidence through s 93B of the Evidence Act 1977 that the deceased owed the accused a drug debt which was also the subject of inadmissible evidence of Belford’s interview on the same topic. His Honour said that the inadmissible evidence did not seem to have added much to the admissible evidence but that “even if the evidence was potentially and significantly prejudicial there seems no reason to doubt that the trial judge’s directions were sufficient to guard against the prejudice” (287 at [106]).
22. [22]
    The trial judge in that case gave detailed directions about the admissibility of particular items of the evidence, including directions that the jury could not use against a defendant evidence of bad character, the commission of criminal offences, including drug offences or assault or that a defendant had been involved in other undesirable conduct as evidence of the disposition or propensity to commit the offence of murder or the alternative offence of manslaughter; see 288 at [108]. His Honour said that there was no reason to depart from the usual assumption that the jury would follow the trial judge’s direction or that a defendant had been involved in other undesirable conduct as evidence of a disposition or propensity to commit the offence of murder or the alternative offence of manslaughter; at [108]. As to the usual assumption that the jury would follow the trial judge’s directions: see Gilbert v The Queen (2000) 201 CLR 414, 420 at [13], and 425 at [31].
23. [23]
    Mr Godbolt relied on the decision of the New South Wales Court of Criminal Appeal in R v Pham [2004] NSWCCA 190 where the Court decided that separate trials should have been ordered.
24. [24]
    In that case, there were significant doubts about the credibility of two of the Crown witnesses who, because of their limited English, may have been difficult for the jurors to assess. The co-accused’s interview evidence was also summarised by Adams J at [32] as follows:

“…Phong was not implicating a stranger or mere associate but his own brother. This situation was very different to the cut-throat defence by a co-offender. First, and most significantly, the statements that incriminated the appellant also incriminated Phong and the Crown placed considerable reliance on them to procure Phong’s conviction. It was therefore inevitable that, in order to accept these parts of the interview, the jury had to conclude that they were reliable. It was necessary, therefore, that they should disregard that conclusion – which was very much in dispute – when they came to consider the appellant’s case. In the cut-throat defence situation, the allegations against the co-accused need only to raise a reasonable doubt to justify acquittal and it is unnecessary – indeed, juries are so directed – to determine that the allegations are truthful. There is a very significant difference between an attempt to entirely disregard prejudicial material that might possibly be true on the one hand and, on the other hand, the attempt to entirely disregard material that has been carefully evaluated after extensive debate and relied on as true as against a co-offender. Secondly, it is obvious that a co-offender has a very strong motive to place responsibility on the other offender and thus a cut-throat defence will inevitably attract significant scepticism. In the present case, however, Phong had no motive for implicating his brother. Indeed, to the contrary. And the fact that he did so gave a considerable persuasive thrust to the Crown’s submission to the jury that they would conclude that Phong’s incriminating statements were truthful and reliable. In this context, the fact that the appellant was implicated in the offence by his brother gained additional significance. Furthermore, Phong’s statement provided significant corroboration of Lam’s claim that his presence at the scene was innocent.”

25. [25]
    It seems to me that that factual situation is rather different from here where there is a classical cut-throat defence with each accused blaming the other and each having a motive to do so. In that case, the co-accused, Phong, had no motive to implicate his brother and the fact that he did so gave, his Honour said, a considerable persuasive thrust to the Crown’s submission to the jury that they would conclude that his incriminating statements were truthful and reliable. Where, here, the direction from the trial judge should be that those incriminating statements by Smith as against Swan are not admissible against Swan, the conclusion should be, in my view, that the normal rules should apply and that the defendants should be tried together.
26. [26]
    The apparent support given to Mondientz’s evidence by the assertions by Ms Smith in her interview does not seem to me to be a compelling reason to change that result. She will be available for cross-examination and, as Mr Power for the prosecution pointed out, her version is not in complete agreement with the version given by either defendant in any event.
27. [27]
    This seems to me to be a case where I should not exercise the discretion given to me by s 597B of the Criminal Code to order separate trials.  Accordingly the application is dismissed.