R v Faulkner [2000] NSWSC 944

New South Wales Supreme Court

CITATION : R v Faulkner [2000] NSWSC 944 revised - 8/12/2000 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70024/00 HEARING DATE(S) : 8/9/2000 JUDGMENT DATE : 5 October 2000

PARTIES : Regina Alan Faulkner JUDGMENT OF : Wood CJatCL at 1

COUNSEL : D O'Neill: Crown A.P. Cook: Prisoner SOLICITORS : DPP Newcastle Public Defenders DECISION : Count 1: (being the count in respect of which the Form 1 matters are taken into account) - sentenced to imprisonment for four years and four months, commencing on 25 August 1999. Specified non-parole period of two years eight months, similarly to commence from 25 August 1999.; Count2: Sentenced to a concurrent fixed term of two years and eight months. The earliest date on which eligible for release on parole will be 24 April 2002.

THE SUPREME COURT CRIMINAL DIVISION

WOOD CJ at CL

THURSDAY 5 OCTOBER 2000

70024/00 - REGINA v ALAN FAULKNER

SENTENCE 1 HIS HONOUR: The prisoner has pleaded guilty to two counts of being an accessory after the fact to murder. He now appears for sentence in relation to those two counts. I have been asked, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 to take into account four further offences included in a Form 1, comprising one offence of actual supply of a prohibited drug (four ounces of cannabis per week over a period of eight to nine months), one offence of deemed supply of that drug, one offence of goods in custody ($795, the proceeds of drug sales) and one count of receiving (a stolen television set and a VCR).

The Facts 2 It is the Crown case that the two murders in respect of which the prisoner was an accessory after the fact were committed at Charlestown on 16 August 1999 by Kevin Paul Naismith. The victims were associates of Naismith in the drug trade, namely Danny John Wasley and Mark Andrew Banks. Naismith is due to stand trial for those murders on 9 October 2000 and it is necessary to sentence the prisoner in advance of that trial, as he has undertaken to give evidence in the Crown case, conformably with induced statements made on 8 and 14 September 1999. 3 Save for one paragraph of those induced statements, the use of which has by agreement been limited, the facts upon the basis of which the prisoner is to be sentenced have been taken largely from those statements. They differ in some material respects, particularly in the extent of disclosure offered, from earlier admissions made by the prisoner to police. To the history of that disclosure I will return, but it is fair to describe it as having been somewhat qualified at the start and having progressed to a disclosure that the Crown now accepts as complete and truthful, particularly so far as it has been almost wholly corroborated by other witnesses and by discovery of physical evidence that may not otherwise have been found. 4 It is the Crown case that Banks and Wasley were murdered by Naismith by way of revenge for an earlier drug rip-off. It is not alleged that the prisoner was aware that Naismith intended to kill either man, or that he in any way participated in their murders. He was, however, present at Naismith's home, where each man was killed, at the time that the offences occurred. 5 Over the days preceding the murders, Naismith asked the prisoner to come over to his house to help him break up and package into one ounce lots, a quantity of cannabis that he was expecting to receive from the man who had been responsible for the earlier rip-off. He wanted the prisoner there, he explained, because he did not intend to make the same mistake as the last time. He added that he would be carrying "a piece", but reassured the prisoner that he did not have to worry about anyone being shot. The prisoner was prepared to assist Naismith from whom he had been accustomed to purchasing the cannabis which he had been selling over the preceding eight to nine months. 6 On Monday afternoon at about 1pm Naismith picked up the prisoner and drove him to his home. Naismith announced that Wasley wanted to be there when the deal went down with Banks, who was apparently bringing the drugs. The prisoner was instructed to remain behind the shed or garage on the premises because, as Naismith explained, there may be some suspicion aroused if he was seen. He sat on a concrete area at the back of the garage, a location from which he could hear something of the events that occurred after Wasley arrived in his Ford utility. 7 After an exchange of greetings and some discussions about money and the various weapons which Wasley apparently saw in the shed, the prisoner became aware of shots being fired through the rear wall. This did not appear to involve anything of a sinister kind, since from the conversation that the prisoner overheard, it would seem that each man took it in turns to try out a .22 automatic rifle which Naismith kept in the shed. 8 From that point, however, events went downhill for Wasley, so it would appear from the fragments of conversation and thumping sounds that the prisoner overheard. Naismith, he said, accused Wasley of having been involved in the earlier rip-off. Wasley protested his innocence and begged Naismith to stop. After a prolonged series of thumps, there was silence. 9 Naismith emerged from the garage and instructed the prisoner to come around to the front. When he entered he saw Wasley lying on the ground. His head was split open and there was blood everywhere. Naismith confirmed that this was one of the men who had ripped him off and asked the prisoner to search for the silencer for the rifle which was lying on the floor. He noticed a baseball bat lying alongside Wasley. It appeared to have been broken towards its base and to be covered in blood. 10 Naismith asked the prisoner to remain in the garage and to make sure that Wasley did not move. He protested, but Naismith said that he had to do this because he needed to go inside and wait for the other man. The prisoner felt sickened by the scene and retreated to the back of the garage where he sat down. 11 Some fifteen minutes later he heard another car pull up. Shortly afterwards he heard two gunshots from inside the house. The sounds were similar to those that he had heard produced by a sawn-off .22 weapon that Naismith had fashioned into a handgun and had test fired some months earlier in his presence at Stockton Beach. 12 Within a short time Naismith came into the garage and examined Wasley. He said, "Good, they're both gone". He explained that he had shot Banks twice, once in the head and once in the back of the neck. The prisoner walked with Naismith to the kitchen where he saw the .22 handgun sitting on the kitchen bench and a man lying face down on the floor in a pool of blood. 13 At this point Naismith told the prisoner to take their cars away. He began to tape the prisoner's hands to prevent him leaving any fingerprints on the vehicles, but gave this up and provided the prisoner with a pair of socks to place over his hands. He handed over the keys to Banks's vehicle and offered the prisoner $50 to catch a taxi back. He said, "Make sure you come back, I don't want anything like this to have to happen". The prisoner took this as a veiled threat directed towards himself and decided that he should do what had been asked of him. 14 The prisoner then drove Banks's vehicle to a car park in Warners Bay. He returned by taxi to a location not far from Naismith's home and began to walk back. He was, however, picked up by a taxi driver who lived nearby and who was a mutual friend. When he arrived at Naismith's home, he was asked to help move Banks's body onto a tarpaulin that Naismith had taken into the kitchen. He was then asked to remove Wasley's vehicle. Naismith gave him the keys, as well as a balaclava and a large jacket with a hood to wear. He then drove Wasley's utility to the same car park before catching another taxi to a location near Naismith's home, completing the return journey through some bush on foot. 15 When back there, he helped Naismith move Banks's body from the kitchen out to the back garden, where it was left lying between the fence and the rear of the house. Naismith said that they had to get rid of the bodies that night. He said that he would phone the prisoner later. He also asked him to take the handgun with him. The prisoner refused. Naismith accepted this, saying, "Fair enough, you've helped me more than you can imagine, I couldn't expect anything else from you". The prisoner then walked home. 16 At about 8pm the prisoner returned to Naismith's home. Together they went to a Caltex service station at Charlestown where Naismith hired a box trailer and purchased some rope and black tape. During the trip Naismith explained that they would take the bodies to Stockton Beach in the morning, where they would bury them and then return that night to burn them. Upon reaching Naismith's home, they wrapped Wasley's body in a tarpaulin and secured it with tape. Banks's body was the first to be loaded into the trailer. It was followed by Wasley. They were then covered with a large tarpaulin. An esky, some shovels and an all terrain trike of the prisoner's were also placed onto the trailer. 17 At about 4.45am on Tuesday, Naismith picked up the prisoner in his Nissan 4-wheel drive to which he had attached the box trailer. They then drove to Stockton Beach. At a point about three kilometres along the beach they selected a spot where they were obscured from sight by some sand dunes. They dug a grave for the two men and lightly covered them with sand. The larger tarpaulin was placed over the area that had been disturbed. The prisoner erected a tent nearby. He remained on the beach for the rest of the day, guarding the site, while Naismith returned to fetch some fire wood and petrol, as well as some beer and food for themselves. 18 When Naismith returned that evening, he and the prisoner began their task of burning the bodies with the fire wood and petrol that had been brought to the scene, together with driftwood and a railway sleeper collected from the beach. Naismith also used the fire to burn some of the clothes that he had been wearing, as well as the rags that he had used to mop up the blood from his home, and the wallet of one of the deceased. A baby food tin containing the keys to the vehicles of Wasley and Banks was buried in the sand dune behind the prisoner's tent. 19 On Wednesday morning the site was examined. Because of the seepage of water into the grave, the efforts to burn the bodies had only been partially successful. Naismith said they would have to come back that night to complete the job. The bodies were again lightly covered with sand and the prisoner and Naismith then left, stopping on their way home to wash and to vacuum the 4-wheel drive and trailer. 20 That evening they returned to Stockton, taking with them some bags of fire wood and kindling, as well as some fuel which they had purchased at the Quix Mobil service station at Mayfield. The grave site was reopened and a fresh fire was lit and kept refuelled through the night. Naismith left later in the evening to return to his home, after having explained that he planned to set fire to his garage in order to remove any incriminating evidence. Before departing he produced the rifle that he had kept in the garage and placed it in the prisoner's tent. He said that he needed to hide it, because the police and fire brigade officers would probably search the house after the garage went up. 21 While Naismith was away, successfully setting fire to the garage at about 2am, as events turned out, the prisoner continued to feed the fire at the beach until all of the timber and driftwood collected had been used up. 22 On Thursday morning Naismith returned and picked up the prisoner. He reported that the fire had been successful at his home and that he had left a threatening note there directed to himself in order to divert attention. Before leaving the campsite the fire was relit and some further items brought from Naismith's home were burned, along with the refuse that they had accumulated over the preceding days. While the tent was being packed up, Naismith recovered the tin containing the keys to the vehicles of the deceased and announced that they would bury it along the track on their way out. The remains of the fire were covered with sand and Naismith drove the 4-wheel drive around the area in circles in order to compress the sand, the ash and the burned timber that was left. 23 On their way out they stopped their vehicle along the track. While Naismith threw some tins of baby formula that had been in the garage into an area of swampy water, the prisoner buried the tin containing the car keys in the bush off the track. They then resumed their trip home. On the way Naismith cautioned that they could not speak to anyone about what had occurred. He said that, in a few weeks, he would give the prisoner between "ten and fifteen grand" for helping him. He also offered him some cannabis that was contained in a bag under the seat of his vehicle, although he instructed the prisoner that he should hand the proceeds of sale of that cannabis to him. 24 When they reached Swansea, Naismith placed the rifle that had been brought back from the beach under a mattress in the caravan that the prisoner kept at his father's home. The prisoner showed Naismith how he could gain access to the caravan, so that he could pick it up later. They then drove onto the prisoner's home where Naismith gave him a bag containing eight to ten ounces of cannabis. When he opened the bag later, three boxes of .22 calibre cartridges fell out. He hid the bag, the cannabis and the boxes of cartridges at the top of a linen cupboard. Some days later his de facto found the cartridges and told him to get rid of them. He took them to the bridge at Swansea and threw them into the water. 25 The prisoner sold the cannabis provided by Naismith and handed over proceeds amounting to about $2,000 to him. Naismith then provided him with a further quantity of cannabis, which he believed weighed about a pound, contained in a white plastic shopping bag. When he arrived home he broke this up into one ounce lot bags which he concealed in a suitcase under a bed and in a bag in the loungeroom. 26 On 17 August the two men were reported missing by their families who had been making their own investigations, in the course of which they had found the two motor vehicles. Police investigations commenced. On 25 August police executed search warrants at the homes of both Naismith and the prisoner. Approximately 500 grams of cannabis, packed into one ounce and small deal bags, were found at the prisoner's home, along with the usual accoutrements of the drug trade and a quantity of cash. The cannabis which the police found, the prisoner said, was the balance of that which he had most recently received from Naismith. 27 The prisoner was interviewed by police that day, but denied any knowledge of the whereabouts of the two men. It was his claim that he had been working in the Stockton area at the relevant time, laying pipes with Naismith. When informed later that police had been unable to find anyone working on the Stockton site who knew either him or Naismith, he confessed that he had assisted Naismith in loading the bodies onto the trailer. Otherwise, he said that he had no knowledge of what had occurred and claimed that Naismith had dropped him off at Newcastle on the Tuesday, after which he had wandered around the city for the next two days. When interviewed in relation to the cannabis, he disclosed that he had been selling between four to six ounces per week over the preceding nine months. He had acquired his supply from Naismith and its sale had returned to him about $1600 per month. 28 On the morning of 26 August, however, he contacted detectives from his cell and advised them that, having reflected on the matter, he was now prepared to show them where the bodies had been buried. He then took them to the grave site on the beach. When the site was excavated, the remains of Wasley, consisting only of his legs, were recovered. Banks's body, or at least his skull, was somewhat more intact and forensic examination was able to establish that he had died from two gunshot wounds to the head. 29 On 8 and 14 September the prisoner provided further assistance to the police, in the course of which he made the induced statements. On 15 September he took detectives to a lane at Williamtown and then directed them to the access track and to the site where he had buried the keys. When the tin was recovered, its lid was found to have been inscribed with the word "Kev's". Some of the other tins were also recovered from the swampy area. The prisoner then took police to two nearby areas where Naismith had previously fired his handgun. Some spent .22 calibre cartridges were found. Marks consistent with bullet holes were also observed in a tree. The prisoner showed police where the .22 cartridges had been thrown off the bridge. 30 The movements of people, and the noises of a fight, at the Naismith home on 16 August had been independently noticed by neighbours. Examination of the crime scene led to the discovery of spots of blood in the kitchen area of the home. A spent .22 calibre cartridge was found, as were fragments of items used in securing the tarpaulins, such as the tape. Other aspects of the prisoner's account, including the hire of the box trailer and the purchase of the fire wood and fuel, were corroborated by further enquiries, assisted by security videotapes taken from the relevant service stations. The rifle which the prisoner's father had thrown into the Swansea channel after his arrest, was recovered, as was the handgun and the .22 cartridge boxes. 31 Detective Senior Constable Dengate confirmed that, but for the prisoner's assistance, the remains of the bodies would not have been found within the time that this occurred and may not have been found at all. The case against Naismith, he agreed, was made very much stronger by the prisoner's disclosures which led to the other enquiries, and also by his undertaking to give evidence.