R v Carmichael[2020] QSCPR 23

SUPREME COURT OF QUEENSLAND

1. [1]
   The accused applies for the exclusion of certain evidence which the Crown seeks to lead against him on his trial listed for hearing beginning on 12 October 2020 on a charge of murder.  There is only one count on the indictment.  It is in these terms:

“that on a date unknown between the seventh day of May, 1997 and the seventh day of November, 1997 at Maryborough or elsewhere in the State of Queensland, TONY BOYD CARMICHAEL murdered GREGORY JOHN ARMSTRONG.” (emphasis in original)

2. [2]
   Particulars have been delivered as follows:

“The accused is liable for the murder of GREGORY JOHN ARMSTRONG because he caused the death of GREGORY JOHN ARMSTRONG by deliberately shooting him in the head. (Section 7(1)(a) of the Criminal Code)”

3. [3]
   On 18 September 2020, I made a no jury order^[1] so the accused will be tried by a judge of this court, sitting alone.
4. [4]
   Before identifying the evidence sought to be excluded, it is necessary to broadly explain the history of the case.

Background

5. [5]
   In 1997, both the accused and Gregory Armstrong were residents of Maryborough.  Mr Armstrong went missing around the time of his birthday on 7 May 1997. 
6. [6]
   A police investigation was commenced.  A number of witnesses were interviewed.
7. [7]
   In late August 1997, the applicant left Maryborough and travelled to Mackay.  It seems that the accused had personal reasons for leaving Maryborough and, in any event, the Crown does not suggest that the accused leaving Maryborough is evidence of flight and therefore post offence conduct from a consciousness of guilt.^[2]
8. [8]
   On 2 September 1997, the accused shot and killed a man^[3] and was arrested and remanded in custody.  He was ultimately convicted of manslaughter and wounding and sentenced to 11 years imprisonment.^[4]
9. [9]
   In the meantime, the police investigation into Mr Armstrong’s disappearance was continuing.  The picture that was emerging was that the accused was a drug dealer in Maryborough who was prone to violent acts in the running of his trafficking business.  Mr Armstrong also dealt in drugs and was perhaps a customer of the accused, but in any event, the accused and Mr Armstrong were associated with each other.  Rumours were rife in Maryborough that the accused had shot and killed Mr Armstrong over a drug debt.^[5] 
10. [10]
    By the year 2000, police had been unable to locate Mr Armstrong or gather admissible evidence to prove what had happened to him.  The case was referred to the Queensland Crime Commission (QCC).^[6]  The QCC’s coercive powers of interrogation were deployed and many witnesses (including the accused) were examined on oath.  Evidence of the accused’s statements made under compulsion are not admissible against the accused in the upcoming trial and I have been informed that the Crown prosecutor has been kept quarantined from that material.^[7]  Mr Armstrong’s disappearance remained a mystery.
11. [11]
    Police delivered a brief to the Coroner but the Coroner was not able to meaningfully progress any investigation.
12. [12]
    Susan Gabrielle Messer was a witness who had spoken to police and made statements in 1998^[8] and late 2000.  She also gave evidence to the QCC.  On 10 December 2012, she volunteered information to police and was interviewed. 
13. [13]
    In both her two early police statements, she said that she had conversations with people who had told her that the accused had shot and killed Mr Armstrong.  In her statement in November 2000, Ms Messer said that she had never spoken to the accused about what happened to Mr Armstrong.^[9]  However, in her interview on 10 December 2012 with police, Ms Messer said the accused came to her house, was traumatised, wet and muddy and told her that he shot Mr Armstrong twice in the head at a place near Maryborough called the Jew Hole.
14. [14]
    No action seemed to be taken by police consequent upon the information given by Ms Messer in 2012.  However, the investigation was recommenced in 2018 as part of a policy to attempt to solve identified cold cases.  Police interviewed again witnesses who had given statements during the first investigation.  Some additional witnesses were identified who provided statements.
15. [15]
    On 26 April 2018, Ms Messer made another statement.  There, she said:

“11. Something that I have never told police in a statement is that Boyd CARMICHAEL told personally me^[10] that he had shot Greg ARMSTRONG in the head. I remember that we were at my place in Albert Street, Maryborough the day of the murder. This conversation happened a few hours after he arrived at my house. He said ‘I shot Greg twice at point blank range and I didn’t mean it to happen’. He said that Greg was ‘egging him on’.”

16. [16]
    The particulars which have been delivered by the Crown are based on the alleged confession to Ms Messer.  The Crown case is that the confession to Ms Messer was made by the accused and is true.  If the Crown proves it to be true, then the Crown will at least prove an unlawful killing of Mr Armstrong by the accused.
17. [17]
    Another witness, Robyn Frances McCullock,^[11] made a statement in the latest police investigation to the effect that the accused confessed Mr Armstrong’s murder to her.  For a number of reasons, the Crown does not intend to call Ms McCullock.  The accused makes no complaint about that decision.
18. [18]
    Various other witnesses say that the accused made admissions to them which the Crown accept are not complete confessions to the offence.  The evidence of these witnesses is the subject of the current application.
19. [19]
    The Crown accepts that it cannot prove its case unless the trial judge is satisfied beyond reasonable doubt that the accused truthfully confessed to Ms Messer.  In broad terms, the Crown seeks to lead a circumstantial case, together with the evidence of the admissions, to prove the fact that the accused confessed to Ms Messer, and to prove the truth of the confession.

The evidence to which objection is taken

Paul Richard Bourke

20. [20]
    In 1997, Mr Bourke worked in the Tuan Forestry as a timber cutter.  He worked for a firm called KP Timbers.
21. [21]
    For a period of somewhere between two to four months, the accused worked with Mr Bourke.  Whereas Mr Bourke does not identify the month of the year over which the accused worked with him, he recalls that the accused stopped working for him without notice and that Mr Bourke heard that he had gone to Mackay.  It is common ground that the accused left for Mackay in late August 1997, so the accused probably worked for Mr Bourke in August and July and, perhaps, also May and June 1997.
22. [22]
    Mr Bourke would give evidence that he recalls a conversation with the accused that occurred about two weeks before the accused left his employment.  An inference may be open that the accused worked with Mr Bourke up to his departure for Mackay.  If that inference is drawn, this conversation occurred in the middle of August 1997.
23. [23]
    Mr Bourke says this in his statement about the conversation:

“12. I am bit of a religious man and have a strong faith with God. We were at work and were having smoko at the time in the bush. Boyd and I were both discussing the topic of religion. I have moments when I feel compelled to talk about religion. On this occasion I started to broach the subject of religion again.

13. On this particular occasion Boyd had asked me a series of questions about forgiveness relating to selling drugs and generally being involved in drugs and other things. I knew Boyd was a drug user and using amphetamines and marijuana from the way he presented at work on many occasions. I responded about the drugs bringing God back in the context of things and just listening to him and not commenting too much.

14. Shortly after discussing the topic of drugs with Boyd, Boyd then asked me, ‘Would God forgive you if you kill somebody.’

15. It set me back a bit and I had to think back to the scriptures and I responded to Boyd saying words to the effect that it was forgivable. I don’t recall what Boyd’s reply was to this.

16 When Boyd was asking me about God and forgiveness with regard to drugs and killing somebody I didn’t recall anything distinct in his body language or demeanour. It was like a general conversation that flowed during smoko and I thought at that point Boyd was warming to the Christian way of life. This topic of conversation was the first and only time Boyd brought this up with me. This conversation occurred toward the end of our working partnership. I’d say within a fortnight I heard that he went to Mackay. During my times I knew Boyd he was always decent with me.”  (emphasis added)

24. [24]
    Mr Bourke did not give a statement to the police during their initial investigation, or to the Coroner.  He was not summonsed to give evidence to the QCC.
25. [25]
    Mr Bourke was called at the accused’s committal hearing.^[12]  He was cross-examined about various matters which are not relevant for present purposes.  The flavour of the conversation, the subject of his police statement, is shown by the following exchanges:

“And he also asked you the question, would God forgive you if you killed somebody?---Yeah, as I wrote in my statement, the word was kill, not killed, which, to me at the time, didn’t in any way relate to something of the past. It was more something that was in conversation. Yeah. So yeah, I do remember that. And later on after I heard that old mate had got himself into some trouble a little while after that, then I related it completely to that incident.”^[13]

And later:

“Now, what I was asking was this, when people that you're having a conversation with find out that you have this religious faith, it’s not unusual for people to ask questions to find out more about it; is that so?---Correct.

Okay. And on the subject of forgiveness, that’s not an uncommon question, is it? You know, does God forgive all sins; do you agree with that?---Yeah. I would say that it wouldn’t be uncommon. It’s -yes, it’s not something that’s talked about very often, during the course of those conversations.

Could I put it a different way, this wouldn’t be the first time that someone has asked you a question like, ‘Does God even forgive murder’?---No, it wouldn’t be, because I have many debates with people and people disputing the whole faith aspect.”^[14]

26. [26]
    Objection is taken to paragraphs 14, 15 and 16 of Mr Bourke’s statement on the basis that the conversation cannot be connected to the offence charged.

Alfred Peter Canavan

27. [27]
    Alfred Canavan, who is Laurie Canavan’s^[15] father, has given four statements to Queensland police.  Two of those, dated 24 November 1997 and 27 November 1997, were given during the initial investigation by police into Mr Armstrong’s disappearance.  Alfred Canavan did not implicate the accused in either of those two statements.  Alfred Canavan was also interviewed by Victorian police in the first investigation.^[16]
28. [28]
    Once the investigation was recommenced, Alfred Canavan gave two further statements, one dated 12 September 2018 and one 27 November 2018.  In those statements, he implicated the accused.  His reason for apparently withholding evidence from the police is explained at paragraph 5 of his statement of 12 September 2018 in these terms:

“5 I gave a statement about this matter in 1997 and everything I said in that statement is true. At the time that I gave the statement I was scared of Boyd but I am not scared of him anymore. Because I was scared of Boyd, there are a few things that I did not mention in my first statement.”

29. [29]
    Later in that statement, he said this:

“22 I can remember one day not long after Greg went missing, Boyd came to my house and was having a real melt down. He was howling like a little baby. I mean he was breaking down and very upset and I was asking him what was wrong. He said ‘I can’t tell ya’, ‘I done something bad’.

23 This conversation happened either on the back patio or the kitchen. They were right next to each other. I thought at the time that he was talking about killing Greg, but I wasn’t going to push him because of the state he was in and he was capable of anything.

24 I remember that a bit longer after Greg went missing, I’d say months, I found out from Laurie that Boyd had left two guns at my house. This house was in Bazzar Street, maybe 48. I was very mad about this because I didn’t want the guns in my house. I would describe them as one being a rifle and the other one was also a rifle, but I would say that it looked like it had been cut in half.

25 I was angry that he had left these at my house and I got in touch with his wife Michelle and told her to come straight over and get rid of them. I remember that she came over either on the same day or the day after and took them away. I never saw the guns again after that.

26 I was angry that Greg was killed, and I knew Boyd had done it. With everything that I saw and heard at the time, I one hundred percent think Boyd killed Greg.

27 I remember that at one stage I decided to confront him at his house and asked Boyd directly about it. I said ‘did you fucken kill Greg’? ‘what did you do to Greg’? Boyd did not say no, he said ‘who’s been telling you that’? Boyd looked startled when I said that to him and he looked over at Michelle. I remember she said something like ‘you need to do something about this’.”

30. [30]
    In his final statement, made on 27 November 2018, Alfred Canavan said:

“2 On the 12^th of September 2018, I provided a statement to Detective Sergeant Michael ACKERY of the Queensland Police Service.

3 Everything I said in this statement is true and I do not want to change anything.

4 That evening after I gave the statement I went home and had a good think about things and really thought about the time I talked about in my statement where Boyd CARMICHAEL came to my house very upset shortly after Greg ARMSTRONG went missing.

5 I remembered that he said something like ‘I’ve hurt your mate’. ‘When he fell back his eyes rolled back in his head’.”

31. [31]
    Alfred Canavan therefore has the accused making admissions on two occasions; once at the Canavan house, and once (by silence, on the Crown case) at the accused’s house.
32. [32]
    Alfred Canavan’s assertion in his later police statement that he did not implicate the accused earlier because he was frightened of him, is very different to what he told the QCC.  There, he said:

“PM^[17]Did you have any fear yourself that Boyd might turn on you, your UI^[18] –

W^[19]No, I knew he wouldn’t because I’ve never done anything wrong to him, you know I helped him, I’d give him clothes to wear, you know what I mean? UI his pants.

PM So your relationship with Boyd was such that you could without being frightened to do so -

W Yeah I could control him.”^[20]

And later:

“CA^[21]Alright well that might be one thing, but what if you were terrified of the recriminations that if you became a dog, dogged on Boyd CARMICHAEL?

W I’m 46 years of age now. I used to think that when I was 18 or 19, you know I’m a bit old now for that. We’re talking about someone’s life.

CA So it wouldn’t worry you. You wouldn’t be worried about your own personal safety or circumstances if you gave evidence –

W No I’m not one to -

CA implicating Boyd ARMSTRONG, Boyd CARMICHAEL. –

W I’m not worried about them, I couldn’t care less about him. If I knew anything about Greg like that I would say it. I would, straight away I’d say it. I’m not worried about Boyd or any of them.

PM Well who’s the any of them?

W Oh you know anyone, it’s like UI

PM No, no, no. Just a moment -

W If there was anybody else, or anything, if I knew anything about Greg I would say it. You know I wouldn’t care about them.”^[22] (emphasis added)

33. [33]
    In his evidence to the QCC, Alfred Canavan spoke of “Terry who is a painter”.^[23]  He said that shortly after Mr Armstrong’s disappearance Terry had been spreading rumours that the accused had murdered him.^[24]  There were other rumours.^[25]  There was no mention by Alfred Canavan of the admissions he now says were made by the accused to him.
34. [34]
    In his QCC interview, Alfred Canavan says that he put the rumours to the accused to gauge his reaction.  This was said:

“CA Let’s focus on Boydy again as a potential suspect, what was it about Boyd that led you to think well maybe he was responsible for Greg’s murder.

W What Terry said, right?

CA Yeah.

W And just what Terry said.

CA But nothing more, nothing less than simply the fact that Terry –

W And plus he’s you know like right he’s got a bit of violence in him. You know what I mean? So like that’s not me saying ‘he’s gone and done it’ because –

CA Alright.

W Like I don’t know who, anything like that about Greg but I’m saying yeah that’s why I put him as a suspect because of his short fuse. And all the rest, it’s just.

CA So you weren’t prepared to entirely discount the possibility that the rumour being spread by Terry –

W No, there’s no one. –

CA Sorry, just listen, that the rumour being spread by Terry was in fact the truth –

W Yeah. Oh but I didn’t know.

CA But you were quite prepared to, to turn around to Boyd and tell him about that rumour.

W Yeah UI

CA And was the reason that you did that, was to sort of test out Boyd?

W Yeah to look UI –

CA To see how he responded?

W Yeah that’s exactly.

CA You were doing – you were a bit of a one man crime commission in that sense weren’t you? You were seeking to explore.

W Yeah because I liked Greg. I wanted to just find out what happened to him.

CA So you had this scenario that you heard that Terry was the source of? And you wanted just to try it out on Boyd, just to see whether he responded positively or suspiciously to it. Is that fair?

W Yeah that’s fair.

CA Ok. And how did he pass the test?

W He just said ‘what?’ and she started screaming and yelling, his girl Michelle.

CA So did he –

W She kept on saying that and that but and then no I had me doubts, no I had me doubts of Boyd because he didn’t show the expression that a person would have if someone had been saying that if you had done something like.

CA Alright.

W It’s you know that’s my fair dinkum calculation and I mean that’s just a calculation. If he was getting blamed for something and he’d done it, he would have given me a reaction when, he just went ‘what?’ Like that UI ‘what?’ and then she started screaming and yelling ‘more trouble ra ra ra’.

CA Sorry?

PM Just one moment. Why did you confront him in this way in the presence of Michelle?

W I just said it to him.

PM Well you know, you must have been –

W UI –

PM You were in effect saying to this fellow ‘there’s rumours around that you’re a killer’.

W Yeah.

PM Weren’t you?

W Yeah.

PM Well why did you do that in front of his Mrs with whom you didn’t get on with particularly well –

W Oh she’s going to hear it anyway. I mean everyone was saying it.

PM Well why not take him on about it man to man?

W In what way? I did, I just told him straight to his face.

PM But you did that in front of his Mrs.

CA You didn’t think to pull him to one side and out of the presence of his wife and kids or? –

W I remembered thinking that one in respect of what was said.

CA I’m not sure what your evidence, the effect of your, last bit of evidence is. Are you saying that he, you don’t think he reacted in the way that a person who was guilty would react or the other way around.

W Because knowing him inside, if it was the case that it was true, he probably would have went around there, right there and then that minute. You know what I mean? He just went ‘what?’

CA So are you saying that –

W UI wasn’t worried about that.

CA Are you saying that his reaction gave you the impression that in fact he was innocent?

W Yes. That’s what I thought.

CA Ok. But that’s not saying he is innocent.

W No I understand that.

PM But of course you put him in a position whether if he is guilty, if he’s going to say anything, he’s going to say it in front of his wife. Don’t worry about that, that’s UI –

W UI But he would have snapped off his head straight away. He’s got a very short fuse.

CA If in fact Boyd was in someway involved in the killing, do you think you’re the sort of person that he would tell that too?

W I don’t think he’d tell anybody. UI He’d been brought up really rough when he was a kid.”^[26] (emphasis added)

35. [35]
    Unless there was more than one occasion when Alfred Canavan put to the accused in front of Michelle that he, the accused, killed Mr Armstrong, the occasion being spoken of in the QCC interview is the same occasion as being spoken of in Alfred Canavan’s latest police statements.  In the QCC hearings, Alfred Canavan speaks of the accused’s significant reaction to the suggestion which Alfred Canavan took as a denial.
36. [36]
    The accused seeks the exclusion of paragraphs 22 to 27 of the statement made on 12 September 2018 and the exclusion of the entire statement on 27 November 2018.

Laurie Peter Canavan

37. [37]
    As already observed, Laurie Canavan is Alfred Canavan’s son. 
38. [38]
    Laurie Canavan initially provided a statement to Victorian police in January 1998.  The reason Victorian police were involved was because Laurie Canavan left Maryborough for Melbourne in late November 1997.  He did not normally live in Maryborough, but did so for about 12 months from November 1996.
39. [39]
    In his 1998 statement, Laurie Canavan does not implicate the accused.  In fact, he says:

“I am aware that Terry (Veldhuizen)^[27] has told the police that my dad, Tony CARMICHAEL, and myself have killed Greg.^[28] This is not correct and he has also said that we buried him in the Forrest.”^[29]

40. [40]
    Laurie Canavan went on in his statement to say that he last saw Mr Armstrong when he (Mr Armstrong) was preparing to leave for Newcastle to reunite with his former girlfriend.
41. [41]
    Laurie Canavan’s second statement was made on 12 September 2018 after the police investigation had recommenced.  In that statement, he said that the accused and Alfred Canavan were growing marijuana together in the Tuan Forest.  Laurie Canavan said:

“9. I recall Boyd being very territorial of his crops. I recall Boyd being a bit of a stand over man in the pub. He would get full of bravado with his chest out and saying things like, ‘'He owes me, if he doesn’t pay I’ll knock him.’ By that I understood him to mean he’d kill whoever didn’t pay up.

10. Boyd was dealing in a lot of speed and always carrying several weapons with him. I saw him in possession of two firearms [a .22 rifle and sawn off 30/30 single shot rifle], I heard of him maybe acquiring another a 303 rifle. I saw him in possession of knives plenty of times. I also saw him with a bat with nails hanging out of it.

11. I never ever saw Boyd cower to anyone but there was one occasion that stood out in my mind. Boyd came over to our place late at night. We were living at 47 Bazaar Street, Maryborough at the time. I was sitting in the lounge room watching tv. Boyd arrived and I saw him dressed in a white singlet, lighter blue shorts (like King Gee Work Shorts) and thongs. This attire he was wearing seemed very out of the ordinary. I would normally associate Boyd wearing dirty old looking clothes with holes in them like torn jeans and old tops. On this occasion he just looked too clean cut.

12. The way he looked just stood out to me. He then started talking which made me even more surprised.

13. Boyd was walking down the hallway with his head down and his hand on his forehead and said, ‘Critter, what have I done?’ [Boyd would refer to dad as ‘Critter.’]

14. The general context of what he said and his body language made me think he had done something wrong but I didn’t know what it was. Dad then met up with him and they started talking in the kitchen. I could hear muffled conversation between them but I do not know what they were saying. I do not recall ever asking Dad later what this conversation was about.

15. I can’t say how long the conversation went for. I don’t recall what they did or their movements straight after that. I recall I was having a bit of Smoko [marijuana] that night.”

42. [42]
    Laurie Canavan, in his 2018 statement, places the accused at the Canavan house, speaking to Alfred Canavan.  This corroborates Alfred Canavan to that extent only.
43. [43]
    Laurie Canavan’s assertion that the accused told Alfred Canavan “Critter,^[30] what have I done” is not directly supported by Alfred Canavan.
44. [44]
    In his QCC interview, Laurie Canavan spoke of a meeting between the accused and Alfred Canavan at the Canavan residence.  This exchange occurred:

“CA Boyd goes up to Mackay in early September in 1997, and loses it up there it seems, shoots somebody. In that couple of months, did you have much to do with Boyd?

W^[31]He’d be coming over every day, yeah. But not to the point when I’m going out with him, you know what I mean, you know, going out to pubs, you know, he’d come over, have a peaceful smoke, UI on TV. He’d be there talking to me dad.

CA He’s more hanging out with your father than with you, obviously.

W Yes. I didn’t know UI.

CA Hmm, alright. Did you see any change in his behaviour, or anything remarkable about his behaviour in those couple of months.

W No, he’s always acted funny, doing funny things and saying funny things.

CA So there was nothing different-

W Losing it, oh yeah, a few days before he went to Mackay, he was real scared, come to me Dad’s house. He said - I don’t know what he said to me Dad. He something, UI. If I can remember, he said, yeah, that night before he went to Mackay, he went up the night before, he done something or something, me Dad said, ‘cos he come over that night and we were all in the house, and he was really badly affected with amphetamines, like totally off his face, had some guy in a van there. A white van. And it’s not Ken with the white van, not Ken.

CA Ken DREWS?

W From Tiaro, not that Ken, another Ken, not Ken from Tiaro. He looks like Ken from Tiaro, he looks skinny, not Alan. He’s from Mackay I think or something, He comes down to get Boydy and drove him up there in a white van, and um-

CA Did you know what they were going up there for?

W Boydy was acting funny acting all funny and this and that and then that bloke got him and they go, oh we’re driving up to Mackay.

CA Did they tell you why?

W Nope. Got to go up to Mackay UI. He was acting real funny around me Dad but. Acting like - like he really lost it, like something really bad had really happened really, really bad. Soon as he walked through the door, I had one look at him, he had a real bad look on his face, something. No, no Boyd, that was two or three days before he went up to Mackay. Heard that guy had killed a person, I don’t know, was he killed or whatever?

CA Yeah, he was killed.

W Killed, UI jumpy all the time.

CA Hang on. What was the reference you made to your father in all of that?

W Ah, my father was talking to him, trying to settle him down, what’s wrong, what’s wrong, you know, what’s going on. I don’t know, I went into the bedroom, they were talking, so.”^[32] (emphasis added)

45. [45]
    This conversation is unlikely to be the same occasion spoken of by Alfred Canavan.  Alfred Canavan has the conversation occurring “not long after Greg went missing”.^[33]  That was in May 1997.  Laurie Canavan has the conversation occurring a few days before the accused went to Mackay, which was late August 1997.
46. [46]
    Laurie Canavan’s impression that the accused was speaking to Alfred Canavan about something that had happened has now evolved in his police statement to a recall of direct conversation, of the nature of an admission.
47. [47]
    During his QCC interrogation, Laurie Canavan said that he was not frightened of the accused and would implicate him if he knew anything which might do so.  He thought the accused was not a threat because he was serving a lengthy term of imprisonment.^[34]
48. [48]
    Laurie Canavan gave evidence at the committal hearing but there is no need to consider that evidence.  It does not advance the consideration of the present application.
49. [49]
    Objection is taken to Laurie Canavan’s evidence of overhearing the “Critter” comment.  Further, if Alfred Canavan’s evidence falls, then the accused submits that Laurie Canavan’s evidence becomes irrelevant.

Lyle James Foster

50. [50]
    Mr Foster was not interviewed by police during the initial investigation, or if he was, he did not provide a statement which has been put before me.  He was not interviewed by the QCC.  His first statement was made on 9 December 2018 after the police investigation was recommenced.  On 14 January 2019, he made a second statement.
51. [51]
    In the first statement, Mr Foster said that he recalled an evening in 1997 when his partner, Yvette McKillop,^[35] came to him and said something like “Boyd^[36] just came over and wanted to borrow a jumper.  He was wet and I gave him a jumper”.  Mr Foster did not see the accused on that night and is not sure when the incident occurred except it was “well before Boyd went to Mackay and we were still living at the Zante Street address”.  As previously observed, the accused went to Mackay in late August 1997. 
52. [52]
    Of some significance, Mr Foster, in his first statement, says this:

“14. I have heard of the name Greg ARMSTONG and am aware he went missing in May 1997. I heard this through media at the time. I didn’t know Greg ARMSTRONG personally. I may have walked past him on one occasion when I was at Susy MESSER’s house. On that one occasion I saw him leaving MESSER’s house as I was entering. I didn’t talk to him. I didn’t know who he was at that time, and it wasn’t until I saw his photos when he disappeared that I put two and two together and worked out who he was. I would see MESSER over drug related matters and I can only assume Greg ARMSTRONG was doing the same. I think that was several months before I heard in the media that ARMSTRONG went missing. I have heard rumours about the disappearance of Greg ARMSTRONG. [I heard on the grapevine he got killed over a drug rip off in the Tuan Forest. I have not heard of any names of persons who was responsible for ARMSTRONG’s death.]”

53. [53]
    In his second statement, Mr Foster told of a conversation he had with the accused after the night the accused had apparently appeared at his house wet.  Mr Foster says:

“3. In my first statement I mentioned about Yvette telling me that Boyd turned up wet and wanted some clothing. I maintain that I didn’t see Boyd that night when he turned up to our place wet.

4. I do remember though, maybe a day or two later when I saw Boyd, he was very shaky and on edge.

5. This was the first time I saw him after Yvette gave him some clothes. He turned up to my place unannounced in the afternoon. I don’t recall where Yvette was, she may have been home that day but Boyd and I were alone when we started talking.

6. I noticed there was something really wrong with Boyd’s demeanour. In previous times, Boyd had come over and complained about his relationship issues with Michelle. This day, Boyd’s mood was a lot different, he was less angry but seemed more worried and on edge.

7. I asked Boyd, ‘What’s wrong, what’s going on?’

8. Boyd said to me, ‘I have done something really bad.’

9. I said, ‘You can tell me mate, if you want.

10. Boyd just shut straight down and said, ‘Nah, nah it’s all good.’ He outstretched his arms to his sides as he said this to me with his palms facing down.

11. Boyd didn’t hang around for long during this visit. I don’t recall Boyd and I talking about anything else. Boyd left shortly after saying this.”  (emphasis added)

54. [54]
    Mr Foster was cross-examined at the committal hearing about the alleged conversation^[37] but it is unnecessary to refer to that evidence.
55. [55]
    Objection is taken to paragraphs four to 11 of Mr Foster’s second statement on the basis that any admission is vague, ambiguous and has no probative value.  The accused also takes objection to Ms McKillop’s evidence on the basis that the incident of the accused appearing at his house wet is irrelevant.  If that evidence falls, the accused says that Mr Foster’s evidence must also be excluded on the same basis.

Yvette McKillop

56. [56]
    Ms McKillop did not give a statement to police during their initial investigation.  She provided a statement on 15 October 2018 and another on 9 December 2019.
57. [57]
    In her first statement, Ms McKillop said:

“14. It was the beginning of May 1997, it was before the local show which normally the 27th or 28th May. He rocked up one night about 9:30pm or 10pm it had been raining and he said to me he had been all saturated, he was wet and was dripping wet from the rain. It was like he had walked home from town in the rain. He asked for some clothes. It did seem unusual as I thought he was probably blueing with Michelle and wasn’t allowed home. I took a pair of black jeans and a wind cheater which had a red or white motif thing on the front. I gave him some of Lyles clothes and I held onto the clothes, expecting him to come back and get them. I washed the clothes and the jacket over the next few days and he never came back and got them.”

And later:

“20. I thought the first time I was spoken to by Police about Greg’s disappearance was when I gave evidence at the Queensland Crime Commission about any knowledge I may have. While providing this statement Police asked me about my recollection of how the Boyd’s jacket came to be in my position compared to my evidence at that time, I have no independent recollection in relation to this jacket or conversations Boyd had with me at the time he left the jacket at my house as I had previously stated at the hearing.” (emphasis added)

58. [58]
    In her second statement, she said:

“4. I refer to the night when Boyd came over to my place at 36 Zante Street, Maryborough when he was wet.

5. I was trying to think about that night as to whether it was raining, because I know it was around show time and I’m pretty sure it was raining at the show that year, but I can’t pinpoint as to whether it was raining that night.

6. Boyd told me that he was wet because he had just swum the river. I knew this river to be the Mary River as it’s the only river in Maryborough

7. Boyd had told me that he couldn’t get a lift after being at a party or a friend’s place at Bidwell and was trying to get back into town or something, so he had to get home and did the shortest way home, so he came straight through instead of the roadway.

8. When I handed Boyd the clothes it seemed to me as though he didn’t want to hang around. It was just like I was the easiest bypass from wherever he’d come to wherever he was going to see if he could access dry clothes

9. Another thing that seemed odd to me was that Boyd didn’t have any mud on him. I just thought it was very strange, so I gave him a pair of tracksuit pants and a sloppy joe to put on, and shifted him out the door..

10. I didn’t really want to ask him about what was going on in case it started into something.

11. I made a point to my other half, Lyle, the next day ‘can you tell Boyd next time don’t come rocking in here at eleven o’clock at night looking for clothes, because it’s not really what I want to be doing at eleven o’clock at night.&rsquo

12. I spoke with Boyd again another night after that time. I don’t think I actually approached him about it, he was looking for Lyle at our place. I said he wasn’t home but he shouldn’t be too long and Boyd was sort of weird.

13. Boyd made comment to the effect of ‘he’d done something stupid or something silly’ and at the time I may have been going to get a cigarette. I know I just walked away from where he was talking, and as I turned back I said to him sort of, ‘Well what do you mean?’ And in that couple of seconds he sort of obviously decided that he wasn’t going to tell me what he’d done that was silly or stupid and said, ‘Oh don’t worry about it, just forget it, it’s nothing that bad sort of thing.’” (emphasis added)

59. [59]
    As is obvious from her police statement, Ms McKillop gave evidence to the QCC.  She also spoke to police before the QCC hearings.  That conversation is evidenced in a police running log^[38] where this is recorded:

“31/03/98 As a result of information provided by informant, attended 31 Queen Street, Maryborough and spoke to a Donna YVETTE McKILLOP, DOB: 20/06/68. MCKILLOP was questioned about a jacket which Boyd CARMICHAEL was to have left there after the murder. She said he had left a black jacket there some time back, could have been between the show and Christmas?. She said he arrived at her house and asked for a change of clothes, which she provided.

CARMICHAEL’s clothes were wet at that time and she thought that it had been raining. She washed his pants but did not wash the jacket. She just hung it up to dry and then placed in a draw, where it has been this day. Jacket handed cover, black vinyl jacket with a front zipper and a motif over the left chest with words JAGUAR COVENTRY. McKILLOP to attend Maryborough Station on Wednesday the 1st for a statement to be obtained.”^[39] (emphasis added)

And later:

“27/04/98 Attended Donna MCKILLOP’s residence at 31 Queen Street to again have her supply statement about BOYD’s jacket. She stated that she did not wish to supply a statement and she has spoken to her solicitor, (she would not say her solicitor’s name, only that he is at the Bay) and he said she does not have to supply a statement. Several attempts to reason with her failed to change her mind. She said she will again speak to her solicitor and maybe get him to ring police.”

60. [60]
    Ms McKillop at the QCC hearings:

“CA Given that you’d developed this sort of association, dealings with Boyd CARMICHAEL. Had he ever said anything to you that lead you to believe that he had some involvement in ARMSTRONG’s disappearance.

W4^[40] No, not really, but after a while, because he had come to my house one night wet. And asked, my other half wasn’t home, Lyle wasn’t home, and asked could he borrow a pair of his tracksuit pants and a jumper, because Michelle wouldn’t let him back into the house to get changed. It may have been ten or eleven o’clock at night, so I just chucked him a pair of tracksuit pants and a jumper, sort of said on your way. So that he wasn’t at the house at a late hour at night. Then once I started to see a few things on Australia’s Most Wanted and that and in the paper, I maybe thought to myself, this is a bit funny, why would you swim a river at night.

CA Where did the river come into the story?

W4 Oh well that’s what he said his reason being that he was wet. He’d gone to a party or something to the effect of at a friends house at Bidwill, couldn’t get a lift back in, so instead of walking the road, being the long way, he cut straight through and swam the river…”^[41]

And later:

“CA It was about what time do you say?

W4 I’d say about ten or elevenish at night, round about’s there.

CA Do you remember where your husband was, your boyfriend, husband was at this time?^[42]

W4 He may have been at his house at the time because he wasn’t actually living with me all the time then, he would visit and babysit for me when I was at work and that, so he might have been at his house.

CA It wasn’t an unusual thing for you to be without him at that time of night?

W4 No.

CA You weren’t obviously expecting CARMICHAEL.

W4 No…”^[43]

And later:

“CA Alright, so he’s dripping wet, it’s obviously not a wet night.

W4 Well actually I can’t even, I’ve been trying to think about that since then as to whether it was raining that night, because I know it was around show time, and I’m pretty sure it was raining at the show that year, but I can’t pinpoint as to whether it was raining that night.

CA But you can say this much, that he didn’t say oh I’m wet because of the wet night, he said I’m wet because I’ve just swum the river.

W4 No, he said he was wet because he’d swum the river. Yeah.

CA Which is a fairly unusual thing for someone to do.

W4 Yeah and another thing that pipped to me was that he didn’t have any mud on him. If he’d tried to climb out of the Mary River, going by the river down here, and I don’t think that would come off that easily. I just thought it was very strange, so I just gave him a pair of tracksuit pants and a sloppy joe to put on, and shift him out the door...”^[44]

And later:

“CA What was he wearing when he knocked on your door?

W4 Black jeans and he might have had a T-shirt on, and like a what do you call them, a windcheater maybe, spray jacket. Yeah, spray jacket I’d call it.

CA What colour was that?

W4 Black.

CA So black jeans, black jacket.

W4 Yeah.

CA T-Shirt, what colour T-shirt?

W4 Oh he normally wore black or blue or things like that, so I imagine it would be things like that, so I imagine it would have been something like that...”^[45]

And later:

“CA And why did he say he crossed the river?

W4 Because he couldn’t get a lift back into town or something, so he just did, had to get home, and did the shortest way home, so he came straight through instead of going the roadway…”^[46]

And later:

“CA So it never even occurred to you that perhaps Michelle was at this party, and he left her there.

W4 Yeah, that could have been the situation, I just didn’t think, like I said, it was late at night, I was ready for bed sort of thing so I just gave him the clothes, and shipped him out so I could go to bed.

CA What was his demeanor like, by that I mean how was he acting when he was telling you all of this and asking for a change of clothes?

W4 Oh, well it definitely wasn’t his aggressive streak that he had UI. You couldn’t miss that, he would just be like a raging bull. Um a bit peeved off maybe, but that was probably about, that’s about all I could put to it, otherwise he seemed pretty his normal self.

CA Except that he wasn’t aggressive.

W4 No, he wasn’t aggressive, no.

CA Would you say he seemed at all excited or nervous?

W4 No, he just seemed keen to continue on to wherever he was going or whatever he was doing. He just wanted some clothes if you know if I had them there, any of Lyle’s were there. And I said to him I’ll have to have a look sort of thing, and he said oh well don’t worry if it’s a hassle. And I said well I just said I’d told you I’ll have a look. Had a look, handed them to him and that was it.

CA Are you meaning to give the impression that he wanted to be in and out of there as quickly as he could.

W4 Yeah, he just didn’t seem to want to hang around. It was just like. It was just like I was the easiest bypass from wherever he’d come to wherever he was going to see if he could access some dry clothes. That’s sort of the way I took it…”^[47]

And later:

“CA Did you ever take up with Boyd after that night, and question him a bit more about what happened and why were you at my place, what was this party all about, why did you swim the river?

W4 He had come down one night, I don’t think I actually approached him about it, he was looking for Lyle. I said he wasn’t home, but he shouldn’t be too long, and he was sort of weird. And he made comment to the effect of he’d done something stupid or something silly and I may have been going to get a cigarette, I know I walked just away from where he was talking, and as I turned back and I said to him sort of well what do you mean? And that sort of couple of seconds he sort of obviously decided that he wasn’t going to tell me what he’d done that was silly or stupid, whichever his wording was, he said oh no, don’t worry about it, just forget it, it’s nothing that bad sort of thing. So I sort of didn't pursue it.

CA How long after the rain, sorry the what do we call it, the wet man on your doorstep incident was this?

W4 Oh, gosh. Maybe, I wouldn’t say any more than at an extreme two months after the –

CA Well my question that prompted that answer was more directed to was there any specific follow up as to between the two of you as to what happened last night or the night last week when you came around?

W4 No, no like I –

CA Why did you have to swim the river, what a stupid thing to do. Something like that.

W4 Well he was a bit of a weird guy anyhow…”^[48]

And later:

“W4 About the 23^rd or the 24^th to the 27^th of May.

CA Late May.

PM Is that fairly constant every year, that it’s?

W4 Yeah, same dates every year, might be 25^th, 26^th and 27^th.

CA But in the last week of May. Well perhaps I might ask you to do this. This incident where he’s swum the river apparently, is around show time of that year, which is 1997. Up to some point up to two months later he seems to be about to tell you something then thinks better of it. I did something silly I think are the words you used, but then doesn’t tell you what it was. I’d like you to turn your mind to all of the dealings that you had with him over those months up until say September of 1997, when as you probably know he was arrested in Mackay, and charged UI and they put him in jail where he is UI.

W4 Yeah, that’s right, yep.

CA Now did you continue to see him in those couple of months?

W4 As I said before, pretty much only in coming to see Lyle, and playing the game or him and maybe a couple of other guys in the house playing the game and me doing a ballistic saying I’ve really seen enough of this Sony Playstation game. But yeah that was pretty much it. As he was going to pick up the kids or, as I said before, if he’d had an argument with Michelle and he was all burred up or psyched up he’d come down and Lyle would you know say to him settle down sort of thing. Then he’d continue on. But a lot of that time he was spending at the Tatt’s drinking a lot…”^[49]

And later:

“PM this rather unusual incident where he turned up drenched, was just before the show. You, you sort of associate -

W4 ‘Round show time, yeah…”^[50]

And later:

“W4 No well it was still around show time that he came wet -

CA Still around show time that he turned up late at nigh. …”^[51]

And later:

“CA Who did you tell of this incident involving Boyd CARMICHAEL, where he turned up on your doorstep?

W4 I told Lyle about it, originally.

CA Did you tell anyone else?

W4 I, not off hand that I can think about.

CA What about once you’d learned of ARMSTRONG’s disappearance?

W4 I did say to a friend about it. I just commented on it, that I thought it was really weird that he’d arrived at my place wet, from supposedly swimming the river, yeah and he just was that you know a little bit strangeish. I suppose the main reason that I was putting A and B together was of Michelle saying that he had very strange behaviour at the show out there, and this may have been a week after the show, and then seeing like I said the thing on Australia’s Most Wanted, knowing he was pretty volatile and that and other little bits of gossip I’d heard around.

CA I meant to ask you, did he seem to be sober or otherwise the time he turned up at night.

W4 No, sober, unless he’d maybe only had one or two. But he wasn’t drunk.

CA And did he appear in any way affected by drugs that you could see?

W4 No, no. But like I said, I only allowed him ample enough time to change five, maybe ten minutes, so.

CA Now at any stage did Boyd ARMSTRONG, sorry Boyd CARMICHAEL say anything to you to suggest that he had knowledge of ARMSTRONG’s disappearance?

W4 No…”^[52] (emphasis added)

And later:

“CA At any stage did Boyd ever mention Greg ARMSTRONG to you?

W4 No.

CA In any context?

W4 No…”^[53]

61. [61]
    Ms McKillop was called at the committal hearing and was cross-examined about the incident when the accused appeared at her house and borrowed clothes.^[54]  It is unnecessary to refer to that evidence.
62. [62]
    The accused objects to the evidence of that incident, including Ms McKillop’s conversation with him.

Legal principles as to admissibility

63. [63]
    I have set out in detail passages to which objection is being made.  Some of the passages contain obviously inadmissible material.  Also, some of the evidence is admissible in substance, but not in its present form.  The way the application was argued, I am only required to rule on one aspect and that is whether the alleged admissions are too vague and imprecise to be led as admissions.
64. [64]
    There are two bases upon which the order for exclusion of the alleged admissions is sought.  The first is that the evidence is inadmissible.  The second is that the evidence ought to be excluded in exercise of discretion.
65. [65]
    Often questions arise as to the admissibility of admissions or confessions.  Here, though, voluntariness is not a concern.  None of the witnesses to whom the alleged admissions are made are persons in authority^[55] and no suggestion of threat, inducement^[56] or “basal involuntariness”^[57] is raised. 
66. [66]
    None of the statements to which challenge is made is a direct express confession to the killing of Mr Armstrong.^[58]  The law does not draw a distinction between an admission being an inculpatory statement short of a confession, and a full confession to the offence charged.  The principles governing admissibility and discretionary exclusion are the same.^[59]  Mr Walsh submits that the statements are so ambiguous as not to be evidence of admissions at all. 
67. [67]
    R v Berrill & Others^[60] was not a case where admissibility of an equivocal confession was considered.  It considered whether evidence, which may or may not relate to the crime allegedly committed, may be left as corroboration of a complainant’s account.  Berrill was determined before s 632 of the Criminal Code and when it was practice to warn juries of the danger of convicting on the uncorroborated evidence of a complainant in a case alleging sexual misconduct.
68. [68]
    However, Berrill highlights the different functions of judge and jury.  Evidence does not become incapable of being corroborative merely because the evidence might, depending on one’s view of it, not in fact corroborate the evidence of the complainant.  If the evidence is capable of corroborating the complainant, then it can be left to the jury^[61] for their consideration.  It is then the function of the jury to evaluate the evidence and determine whether it does or does not in fact corroborate the complainant.^[62]
69. [69]
    In R v Khalil,^[63] the Court of Criminal Appeal of South Australia considered an appeal where the conviction was based predominantly upon an equivocal confession.  The role of an appeal court is broader than just determining whether the evidence of such a confession is admissible.^[64]  However, the court there assumed that the evidence was admissible and its probative value was a matter for the jury.^[65]
70. [70]
    In R v SJRC,^[66] the Court of Appeal of New South Wales considered the discretionary exclusion^[67] of what was said to be ambiguous admissions.  The complainant alleged that the accused (who was the respondent on the appeal) had sexually assaulted her and had intercourse with her without her consent.  Over days that followed, the accused sent text messages to the complainant, including:

“I’m sorry I did wat I did on Friday Is that y u didn’t come in on Sunday.  I’m very sorry luv u.”^[68]

And:

“U no that sex is the main way that I no how to show u i love u i’m it was the way it was on Friday but I was happy 2 c u & it was a week since mum funral I just”^[69]

And:

“I fucked up I didn’t no how 2 talk 2 u 4 that I would die 4 2 change I luv u with everything in & of me”^[70]

71. [71]
    James J^[71] referred to Berrill and R v Kalajzich & Orrock^[72] and said:

“38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference.  However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.

39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept.  It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn.

40 Some remarks made by McPherson J of the Queensland Court of Criminal Appeal in R v Berrill [1982] Qd R 508, which were quoted with approval by the New South Wales Court of Criminal Appeal in R v Kalajzich (1989) 39 A Crim R 415 at 430 were directed to evidence relied on by the Crown as corroboration but are of general application.  McPherson J said in part:

‘Whether it (the evidence in question) in fact bears the interpretation placed upon it by the prosecution is a matter of inference, and as such, a matter of fact for the jury to whose decision it should ordinarily be left…For the judge to withdraw it from the jury simply because some possible alternative inference is open involves a usurpation of the jury’s function…’”

72. [72]
    The principle stated by James J could hardly be regarded as contentious.  If the evidence is capable of bearing the interpretation contended for by the Crown, then it is relevant and consequently admissible.  The matter for the trial judge here is whether it does constitute an admission.
73. [73]
    SJRC has been consistently followed in New South Wales.^[73]  While SJRC appears not to have been cited by the Court of Appeal of Queensland, it was followed by Atkinson J in R v Succarieh^[74] and there are numerous decisions of the Court of Appeal which are consistent with the principles stated by James J.^[75]
74. [74]
    In R v Caulfield,^[76] it was argued that McMurdo P, in R v PV; ex parte A-G (Qld),^[77] held that a confession or admission was not admissible unless it unambiguously and unequivocally related to the charged acts.  The passage in R v PV upon which the submission was based, is as follows:

“This is not a case where there is any rational possibility on the present evidence that the respondent was, for example, joking, or merely responding to his wife’s stated intention to leave him, making the admissions ambiguous and therefore irrelevant and inadmissible.  Although his statements to the girls’ mother were not admissions to the specific offences charge, in context they were capable of being found to be an unambiguous and unequivocal apology for and admission to interfering sexually with the complainants.”^[78]

75. [75]
    Earlier in the judgment, McMurdo P referred to R v Sakail^[79] and R v Massey.^[80]  Both of those cases held that admissions not expressly referring to the offence charged could be left to the jury as capable of corroborating a complainant’s version.  Neither of those cases referred to Berrill but both are consistent with it.  In those circumstances, it cannot be said that McMurdo P’s comments in R v PV were intended to fundamentally change well-settled principles regarding the admissibility of evidence said to constitute an admission or confession.
76. [76]
    In Caulfield,^[81] Muir JA observed:

“R v PV is not authority for the proposition that an alleged admission is not admissible unless it is unambiguous and unequivocal in its terms.  If words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible.  It is for the jury to determine whether or not the words amount to an admission and what weight, if any, the admission should be given.  That conclusion is implicit in the second sentence of the above quotation from the reasons in R v PV.  There is ample authority supporting the proposition that it is for the jury to determine whether a statement, whether oral or written, viewed as a whole and in context constitutes and admission.”^[82]

77. [77]
    Mr Walsh submits that in Alfred Canavan’s statement of 12 September 2018, he said that the accused gave a non-responsive answer to Alfred Canavan asking him whether he killed Mr Armstrong.  Mr Walsh submits that the non-responsive answer was akin to silence and in the circumstances of the conversation, the silence was not probative of guilt.
78. [78]
    The principle is that silence cannot, perhaps obviously, of itself constitute a confessionary statement.  A non-verbal reaction, or indeed silence, may though, be evidence of consciousness of guilt by conduct.  This was explained by the High Court in both R v Grills^[83] and Woon v The Queen.^[84] 
79. [79]
    Therefore, silence or some other non-verbal reaction by an accused to a statement, is post-offence conduct probative of consciousness of guilt.  Since Grills and Woon, there have been significant developments on the law concerning post-offence conduct.  Morrison JA,^[85] in R v Hill; R v Young,^[86] after considering Woon and Grills said:

“[187] As is clear from that passage, the evidence from which a consciousness of guilt might be drawn, is not considered in isolation. It is to be considered in the circumstances of the case. In other words, post-offence conduct must be judged in the light of other circumstances in the case and, where the case depends upon circumstantial evidence, in the totality of that circumstantial evidence. Thus, the evidence of Hill’s conduct must be seen in the light of other evidence that the jury might accept…”

The objections to admissibility

80. [80]
    As to the evidence of Alfred Canavan, the accused submits that:

    1. (a)
       the admission is not probative as an admission to the offence charged; and
    2. (b)
       at its highest, it is a confession to an assault.
81. [81]
    As to the evidence of Laurie Canavan, the accused submits:

    1. (a)
       no date can be placed on the conversation;
    2. (b)
       therefore, it cannot be related to the offence charged and, presumably, cannot effect any corroboration to Alfred Canavan’s evidence; and
    3. (c)
       what was said is not capable of being construed as an admission to any unlawful act.
82. [82]
    As to the evidence of Paul Richard Bourke:

    1. (a)
       the conversation probably occurred in the middle of August 1997;
    2. (b)
       therefore, it cannot be reasonably related to the offence charged given that Mr Armstrong disappeared in May 1997; and
    3. (c)
       in any event, it is otherwise too vague to relate to the charge.
83. [83]
    In relation to the evidence of Lyle James Foster, the accused submits:

    1. (a)
       it is impossible to ascertain when the conversation occurred; and
    2. (b)
       the words constituting the alleged admission are not capable of being an admission to the offence charged.
84. [84]
    As to the evidence of Yvette McKillop:

    1. (a)
       the accused submits that the incident she recalls must have occurred well after Mr Armstrong’s disappearance; and
    2. (b)
       therefore, it cannot relate to the offence charged.

Consideration of the admissibility issue

85. [85]
    There are very significant difficulties with the evidence of Ms Messer, Alfred Canavan and Laurie Canavan.  They all gave statements which are inconsistent with the evidence they currently intend to give.
86. [86]
    Ms Messer and Alfred Canavan say that they did not tell the truth initially because they were frightened of retaliation by the accused.^[87]  This, on its face, seems hard to accept given that the accused was in prison serving a lengthy term of imprisonment.  His ability to retaliate was effectively nil.  Ironically, they implicated him after his release and return to the Maryborough area.  Alfred Canavan, in his QCC interview, specifically said that he had no fear of the accused.
87. [87]
    Alfred Canavan’s evidence has other problems.  His statement of 12 September 2018 tells of his visit to the accused’s home in late 1997.  He says, in that statement, that he asked the accused bluntly “Did you fucking kill Greg?”.  He said, in effect, that he got no responsive answer to that question.  Obviously, before making the statement of 12 September 2018, he turned his mind to the conversation and the statement must surely reflect his memory of it at that time.  However, two and a half months later, in his statement of 27 November 2018, Alfred Canavan said that he recalled an express confession made during the first conversation which occurred at the Canavan home that was:  “I’ve hurt your mate” and “When he fell back his eyes rolled back in his head”.  If that confession had been made what was the need to later confront the accused?
88. [88]
    Alfred Canavan’s evidence becomes even more dubious when considering his QCC interview.  There, he seems to speak about the same occasion when he visited the accused and asked him if he had killed Mr Armstrong.  Alfred Canavan told the QCC that the accused’s reaction was such to lead him to believe that the accused denied the murder.
89. [89]
    There are also aspects of Lyle Foster’s evidence, which hardly look convincing.  On 9 December 2018, he made his first police statement and in that he spoke of “rumours” concerning Mr Armstrong’s disappearance and presumed death.  He spoke of no conversation with the accused which might implicate him.  However, two months later, in his second statement of 14 January 2019, he recalls a statement where the accused is confessing to having “done something really bad”.
90. [90]
    Laurie Canavan’s memory of the “Critter” conversation emerges 20 years after the event.
91. [91]
    Ms McKillop’s evidence, at first glance, might be thought to support Ms Messer’s.  Both women speak of an occasion when the accused appeared at their respective homes wet.  However, it cannot be the same night.  Ms Messer said that the accused appeared at her house, she gave him dry clothes and he stayed the night.  While the accused did not stay the night at Ms McKillop’s house, she also gave him dry clothes.  He changed and left.  If he had then attended upon Ms Messer, he would not, presumably, be wet.  He couldn’t have attended upon Ms McKillop after seeing Ms Messer because he stayed the night at Ms Messer’s house.
92. [92]
    Ms McKillop’s evidence as to the time of the accused’s appearance at her house varies.  At one stage, she puts it after the show (late August 1997) and before Christmas.  By the time of the show, Mr Armstrong had been missing for weeks.
93. [93]
    It is also unsettling that Ms McKillop made a statement in October 2018, but did not recall until December an occasion when the accused said he had done something “stupid” or “silly”.
94. [94]
    While all the evidence of alleged confessions and admissions is perhaps questionable, issues of acceptance of the evidence and issues of credit, are all matters for the trial.  As I have explained, the question is whether the evidence is capable in each case of being an admission relating to the offence charged.
95. [95]
    It is an error to assess the admissibility of each of the alleged admissions as if they stood alone.  In assessing whether particular statements by the accused constitute admissions, one looks at all the evidence, including the evidence of the other alleged admissions.  Ms Messer, as already observed, says that the accused expressly admitted to her that he had “shot Greg twice at point blank range”.  Alfred Canavan says that the accused admitted to him that he had “hurt your mate”.  This may not be a confession to murder or a direct confession to killing Mr Armstrong.  However, the trial judge could, in the context of Ms Messer’s evidence, conclude that the accused was admitting to Mr Armstrong’s murder.
96. [96]
    Laurie Canavan’s evidence, that he heard the accused ask Alfred Canavan “Critter, what I have done?” of itself may be difficult to relate to the alleged murder of Mr Armstrong.  If that statement was made on the same occasion that is the subject of Alfred Canavan’s statement (which might be difficult to accept), then in the context of Alfred Canavan’s evidence that the accused said that he had “done something bad”, the trial judge might conclude that “what have I done” is referrable to the murder.
97. [97]
    As already observed, Mr Walsh submitted that Alfred Canavan’s statement of 12 September 2018 raises issues of an admission by conduct, that is silence or, in other words, not making a responsive answer to a question put to him by Alfred Canavan.  Further, as already observed in the statement of 12 September 2018, Alfred Canavan put to the accused “Did you fucking kill Greg?”.  The accused responded “Who’s been telling you that?”, looked startled, looked to his then de facto wife and she said something like “You need to do something about this” and he was silent.  Mr Walsh says that evidence is not capable of amounting to an admission by conduct.
98. [98]
    That submission ought to be rejected. 
99. [99]
    The non-responsive answer by the accused^[88] is, in my view, capable of constituting post-offence conduct showing a consciousness of guilt having regard to:

    1. (a)
       the response that was actually given, namely “Who’s been telling you that?”;
    2. (b)
       the accused looking startled;
    3. (c)
       the accused looking at his de facto wife;
    4. (d)
       the accused not responding when she said “You need to do something about this”; and
    5. (e)
       the circumstances of the other alleged confessions.
100. [100]
     Ms McKillop’s evidence that the accused said that he did something “stupid” or “silly”, by itself proves nothing.  However, when taken with all the other evidence, especially that of Ms Messer, the trial judge might consider that the comment refers to the murder of Mr Armstrong.
101. [101]
     There are real problems with all the evidence.  That does not make it inadmissible.  The issues go to questions of ultimate acceptance, not admissibility.  

Legal principles as to discretionary exclusion

102. [102]
     There are various recognised bases upon which evidence of admissions may be excluded.^[89]
103. [103]
     Mr Walsh relies on two of them.  The first is that the probative value of the admissions is weak because of their ambiguity, and the probative value is outweighed by their prejudicial effect (the Christie^[90] discretion). 
104. [104]
     Section 130 of the Evidence Act 1977 preserves the common law discretions to exclude evidence.  The approach to the exercise of the Christie discretion was authoritatively pronounced in R v Hasler; ex parte Attorney-General (Qld)^[91] by Thomas J (as his Honour then was) sitting in the Court of Criminal Appeal as follows:

“It is desirable that I attempt to summarise the conclusions I have reached from reviewing the relevant authorities on this question.

1. (a)
   The exercise of the discretion is not a simple balancing function in which the judge decides whether the overall effect of the evidence is more prejudicial to the accused than it is beneficial to the Crown case. Sometimes the discretion is elliptically described in headnotes and elsewhere as a ‘discretion to exclude where prejudicial value outweighs probative value’. Such abbreviations should not be permitted to modify or distort the true test, and should be recognised as mere shorthand references to it.

2. (b)
   Exclusion should occur only when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial. Without dissenting from any of the five formulations quoted above, it is apparent that those stated by Barwick CJ and by Stephen and Aickin JJ in Bunning v Cross give proper recognition to these factors and that they may safely be used as concise working statements of the principle.

3. (c)
   In performing the balancing exercise, the only evidence that should be thrown into the ‘prejudice’ scale is that which shows discreditable conduct other than those facts which directly tend to prove the offence itself. The ‘prejudice’ cannot refer to the damage to the accused’s case through direct proof of the offence. To speak of a ‘balancing’ of prejudicial effect against probative value of such evidence is absurd, because the weight of each will be exactly the same. If prejudice arising from strict proof of the case were to go into the ‘prejudice’ scale, then the additional prejudicial effect would always tip the scales and the evidence would never be admissible.”^[92]

105. [105]
     Hasler has been consistently followed.^[93] 
106. [106]
     Confessions may be excluded if it would be unfair to use the evidence against the accused (the Lee discretion).^[94]  That generally arises where there has been unfairness in the conduct of obtaining the confession.
107. [107]
     Lastly, there may be a residual discretion to exclude a confession if the reception of the confession would lead to an unfair trial.^[95]

Consideration of the exercise of discretion

108. [108]
     None of the evidence ought to be excluded in exercise of the Christie discretion.  The probative value of the evidence ought to be gauged by assuming the trial judge accepts the truth of the evidence.  While there are certainly difficulties with the credibility and reliability of some of the evidence, as I have already found, taken together the trial judge may consider that the accused has confessed to Mr Armstrong’s murder.
109. [109]
     The evidence’s prejudicial effect against the accused is that the evidence is capable of proving his guilt.  That is not a relevant prejudice.
110. [110]
     There is nothing unfair in the way in which the admissions, if they were made, were elicited.  The statements were, on the evidence of the various witnesses, freely volunteered.
111. [111]
     The third and last question is whether the accused can have a fair trial if the evidence is admitted.  It is presently unclear as to whether this is a separate and distinct basis upon which evidence may be excluded, or whether the appropriate remedy is a stay of the prosecution where a fair trial cannot be had.^[96]
112. [112]
     The admission of the evidence will no doubt lead to the accused having to make some serious tactical decisions.  Some of the witnesses to whom the alleged confessions were made say that they did not tell of the admissions earlier because they were frightened of the accused.  The obvious answer to that is that there was no rational reason for them to be frightened of the accused because he was in custody serving a lengthy sentence for manslaughter.  However, the revelation of that fact to a jury has obvious downsides.
113. [113]
     The fact that in order to answer the confessionary evidence, the accused may have to disclose that he committed a different offence does not, of itself, render the trial unfair.  Further, the accused applied for, and secured an order for a no jury trial based, primarily, on the prejudice that he may suffer by having to cross-examine witnesses in a way which will reveal his prior conviction for manslaughter.  There is no unfairness here where the accused will be tried by judge alone.

Conclusions and orders

114. [114]
     The evidence to which objection is taken, in my view, certainly has its weaknesses.  However, all of the evidence is probative and admissible.  No proper discretionary basis has been established for the exclusion of any of the evidence.
115. [115]
     I order that the application is dismissed.