New South Wales Supreme Court CITATION : REGINA v. DAVIS [1999] NSWSC 875 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70020 of 1999 HEARING DATE(S) : 23.8.99, 24.8.99 JUDGMENT DATE : 24 August 1999 PARTIES : REGINA v. DAVIS, Ernice Dorothy JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: P. Barnett Prisoner: S. Austin SOLICITORS : Crown: S.E. O'Connor Prisoner: Uther, Webster & Evans CATCHWORDS : Mother - failing to inform authorities of son's committing murder - counsels son to surrender to justice - offence of conceal serious crime ACTS CITED : Crimes Act 1900 DECISION : Charges dismissed conditionally under s.556A IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70020 of 1999 GREG JAMES, J. NEWCASTLE: TUESDAY 24 AUGUST 1999 REGINA v. ERNICE DOROTHY DAVIS SENTENCE 1 HIS HONOUR: Ernice Davis has pleaded guilty to an offence under s.316 of the Crimes Act 1900. She stood charged that between 12 and 15 November 1998 at Beechwood, a small town west of Wauchope, knowing that her son, Troy Clayton Davis, had committed the serious offence of murder, being the killing of Robert Christopher Spradbrow, she failed, without reasonable excuse, to bring information which might be of material assistance in the prosecution of her son to the attention of a member of the Police Force. 2 Detailed facts set out in Exhibit C in the sentence proceedings have been provided to me. I will not set out those facts as they appear in that exhibit verbatim, but certain of them should appear in these reasons. 3 At approximately 11.30 pm on Thursday 12 November 1998, Troy Davis shot and killed Robert Spradbrow. The shooting took place on the beach of an island named Kooree Island. Present at the time of the shooting was Troy Davis' half-brother, the son of the prisoner, Dean Lulham, who had provided to his younger brother a rifle and who, on the Crown case, provided lighting so that the deceased might be shot. 4 It was the Crown case that Dean Lulham and Troy Davis had for a long time, for good or ill reason, believed in the existence of grievances against the deceased for his, in their belief, ill-treatment of them. There is no doubt, on the Crown case, that both brothers were highly intoxicated at the time at which a resolution to murder the deceased was reached. It was the Crown case that Dean Lulham had counselled and procured or incited his younger brother to the commission of the offence. It was the case of Troy Davis that he was reluctant to commit the offence but was prevailed upon to do it. 5 After the deceased had been shot, Davis returned to the car. Lulham drove them back to Beechwood. On the way the rifle was secreted in a gully at the side of the road. Lulham retired for the night and apparently went to sleep. Davis and Moran remained awake. They attempted to move the motor vehicle belonging to the prisoner. 6 Some time after 4.00 am, the prisoner intercepted Davis and Bradley Moran in shifting that motor vehicle. It was explained to her by Davis that he wanted to drive the vehicle. She declined to allow him to drive the vehicle but said she would drive him herself, because she did not want him driving drunk. 7 She drove him to the area of the cemetery and there Moran and Davis looked around at the area, locating the secreted rifle. The rifle was taken back to the car and the prisoner drove Moran and Davis to an area called Murray's Turn-Off, where the rifle was again secreted. The prisoner returned them to her home, where they all retired. 8 The deceased's death was discovered about three hours later - that is, about 7.30 am on the morning of Friday 13 November. It was not until about 2.00 pm that day that the death was treated as suspicious. Shortly after 10.00 pm that day the prisoner drove Dean Lulham to the area of the shooting. When they arrived the police were present and Lulham was taken to the Port Macquarie Police Station where he was interviewed. The prisoner returned home. About 2.00 am on the morning of the 14 November the police arrived and executed a search warrant. The prisoner was arrested, as were Troy Davis and Bradley Moran. 9 At about 4.50 am the prisoner took part in an electronically recorded interview and told the police that at about 4.00 am on the 13 November, her son Troy had awoken her and asked for a cigarette; but that she had subsequently heard the sound of a car being moved; that she told Moran and Troy Davis that they were too drunk, had agreed to drive them but said that when they searched in the vicinity of the cemetery she did not know what they were doing until they returned with the gun. 10 She admitted driving Moran and Davis to Murray's Turn-Off, where they got rid of the gun, and that her son had told her on the return to her home that he had shot the deceased. She had told the police she thought Troy Davis was joking. She told the police she did not know what to think when they brought the gun to the car. 11 She was asked a question concerning what Davis had said, and in particular that he had told his mother about the shooting before she drove them to the cemetery, and she replied (question 76):- "Yeah, that is when I thought he was joking, but I believed him when I got back." 12 She told the police she did not still believe he was joking when she had seen the gun. She maintained that she had thought her son was fooling around at the time. 13 There is some difference between the version originally given to the police and that told subsequently, but there can be no doubt that early in the morning of the 13th she became aware that her son Troy was asserting that he had killed the deceased. 14 She told the police that she knew what had been done was wrong; that she did not go to the police earlier because the persons concerned were her sons; and in the electronically recorded interview with suspected persons, at question 128 she referred to her having said to her son:- "Troy, you are going to have to go and give yourself up." 15 After thus advising her son she could not sleep anymore, and she was waiting for her other son. She thought about contacting the police, but did not, because she was scared, because they were her sons. She knew they did wrong, but did not know how she felt. She was scared of what might happen to her sons. 16 Later she told Troy again that there was something he "had to tend to", meaning that she had to give himself up. She advised him to "put up with the consequences, don't run". 17 During this time it is perfectly apparent from what she said to the police concerning her state of mind and her asthma that she was suffering severely from anxiety and asthma, and that has been confirmed as being her general condition from the time at least of the commission of the offence until the present, in the Probation and Parole Service's report and in the evidence given by that officer concerning the contact with the prisoner's medical adviser. 18 At no time prior to her arrest had the prisoner attempted to bring to the attention of the police the information that she had obtained from Troy Davis as to his crime. 19 She was originally charged with being an accessory after the fact to the murder. She was committed for trial on that charge. However, reconsideration was given by the Crown to the appropriate charge and on 23 August 1999 she was arraigned on that charge and pleaded guilty to it at the first opportunity. She had indicated a willingness to plead guilty to it some days earlier. 20 That charge is punishable by a maximum penalty of two years imprisonment and is customarily dealt with by a magistrate on a summary basis. 21 The prisoner has no previous record and has spent no time in custody. Further, she had expressed a willingness to co-operate and assist the authorities from the time of her original electronically recorded interview as to matters of general factual context. She expressed a particular willingness to be able to give evidence as to the true facts as far as her son Troy Davis was concerned, and as far as the proceedings were concerned against Bradley Moran. 22 Mr. Moran has, however, himself pleaded guilty to an offence under s.316 and is has not been necessary for the Crown to avail itself of the prisoner's assistance in those proceedings. 23 There has been provided to me a Probation and Parole Service report. That report was provided at short notice. It is Exhibit B in the proceedings. 24 She has lived in Beechwood for over 29 years in the one home and has been estranged from her husband for twenty years. She has the asthmatic and anxiety conditions to which I have referred. She is now 56 years of age. She has some assistance from her daughter. 25 Due to her geographic location, attendance centre orders or periodic detention are not available. Although she might perform some functions which might fit within the definition of community service, she has indicated a degree of anxiety in respect of performing those functions. 26 Ms. Rennard of Probation and Parole gave evidence before me, and in particular that in her view the prisoner's personal development would be assisted by participation in alcohol and personal self-esteem development programmes provided by the Probation and Parole Service, and that an order for general supervision should be included as part of a recognisance, not because that order might relate particularly to the avoidance of any particular risk of future criminality, but because it might aid the prisoner in her own life. 27 Ms. Rennard further gave evidence that since there was some matter of alcohol related to the commission of the offence and some inability to withstand the pressures of being a mother placed in such a dreadful situation, that the prisoner might benefit and future criminality be avoided by orders for supervision. 28 Having heard the evidence of the Probation and Parole Service officer, the Crown conceded that it did not seem as though any particular risk of re-offending might exist such as might warrant the making of such orders as would impose such a restriction upon the prisoner's future life. 29 It is clearly a matter for her to relieve her own anxiety and asthma conditions by obtaining the appropriate medical or other assistance. 30 I accept the view that has been espoused in many of the cases that to impose a term of recognisance in punishment for a criminal offence simply for the general betterment of the conditions of the prisoner may be to exceed the purpose for which the recognisance exists. In this case the concession of the Crown that supervision is not particularly required is, in my view, an entirely proper one, and indeed, in the context of this case, on the evidence, really the only appropriate course. 31 The law does not disregard normal human passions and emotions and relationships. The practicality of this case is that this mother, at a difficult time, was confronted with an appalling and bizarre situation. She did nothing positive to put justice at risk once she was aware of the commission of the offence. She did urge her son to surrender himself, but she did commit this offence in that she did not herself turn him in. 32 The burden the law imposes on a mother in those circumstances has to be considered in the light of the conflict that it generates with ordinary human passion. Having regard to that frailty, having regard to the fact that the prisoner has no prior criminal record, nor would it seem likely, given the circumstances of this offence, that the prisoner might have any future criminal record, I do not regard it as a matter in which a conviction is called for. It is, however, a matter in which I am minded to impose a recognisance, and therefore, considering the facts and the provisions of s.556A of the Crimes Act, I discharge the prisoner conditionally upon her entering into a recognisance, self, in the sum of $1,000 to be of good behaviour for a period of 18 months and to appear for conviction and sentence if called on at any time during such period. That recognisance may be entered before a magistrate. I am not making any other direction for supervision. ********** Last Modified: 08/31/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.