REGINA v DALTON [2005] NSWSC 351

New South Wales Supreme Court

CITATION : REGINA v DALTON [2005] NSWSC 351

HEARING DATE(S) : 06/12/04, 07/12/04, 08/12/04, 15/12/04, 25/12/04

JUDGMENT DATE : 15 April 2005

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : The offender is sentenced to three years and eleven months expiring on 14 March 2009 with a non-parole period of one years and seven months, expiring on 14 November 2006. The offender to be released to parole at the expiration of the non-parole period.

Regina PARTIES : v Karen Ruth DALTON

FILE NUMBER(S) : SC 2004/2; 70016/04

T R Hoyle SC (Crown) COUNSEL : C J Bruce/J Manuell (Accused)

I Knight (Crown) SOLICITORS : Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION :

Revised

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

FRIDAY 15 APRIL 2005

70016/04 - REGINA v KAREN RUTH DALTON

JUDGMENT

1 HIS HONOUR: On 8 December 2004 Karen Ruth Dalton was convicted on her plea of guilty of two offences of soliciting a person to murder Amy Jean Kyle and Troy Andrew Scott. The maximum term of imprisonment for such an offence is 25 years' imprisonment. The pleas were entered after I had ruled that certain crucial and damning evidence to which objection had been taken concerning conversations between the offender and an undercover police officer were admissible in evidence. 2 The objective facts in this case are unusual. What follows is a summary of the salient features, which were not the subject of controversy. 3 In January 2001 Dennis James Dalton and Amy Jean Kyle were in a de facto relationship and residing in Casino. Amy Kyle had two children, one born in November 2001 and the other, Dalton's child, who was born in January 2000. Dalton is the son of the offender. On 17 January 2001 Dalton attended Casino Hospital with his son, who was then unconscious and died on the following day at Lismore Base Hospital to which he had been transferred. An investigation of the circumstances of the child's death was commenced. 4 On 10 September 2002, Dalton was arrested and charged with his son's murder and on 2 May 2003 the charge against him was set down for trial commencing 4 August 2003. In April 2003 Amy Kyle was arrested and charged with the manslaughter of the child and being an accessory after the fact to the infliction on him of grievous bodily harm by Dalton. She was granted bail. The charges against Amy Kyle were listed for mention at Lismore Local Court on 22 July 2003. She had made a number of statements about the child's death which implicated Dalton. It was expected that she would be called in Dalton's trial as a prosecution witness. 5 In early June 2003 police involved in the investigation of the child's death became aware that the offender was attempting to locate someone to murder Amy Kyle. It was decided to use an undercover police officer (called Stuart) to investigate this matter. This officer was introduced to the offender by a person who had been approached by her. 6 In February 2003 the informant went into custody in connection with some traffic matters and was at one stage in the Metropolitan Medical and Transit Centre, a part of the Long Bay prison complex. He shared a cell with Dalton whom he had met previously several times at Grafton Gaol. Not surprisingly, the two men got into conversation about the reason they were in gaol. The informant said that during these conversations Dalton had told him that he wanted to have Amy Kyle "out of the picture". 7 On 3 March 2003 the informant was released from custody in Lismore as part of the MERIT scheme and went to live in Ballina. By an arrangement earlier made with or through Dalton he was met on his release by the offender. He picked up a social security cheque for $200 and spent it on liquor which he took to the offender's house, where he met members of her family and some friends. 8 During the course of the afternoon the informant and the offender talked about a number of matters, including Amy Kyle. He had been drinking but thought he was not unduly affected. He said that the offender asked him if "I knew of anyone who could arrange to have Amy Kyle removed". The informant rightly interpreted this as a request about having Amy Kyle killed. He replied that he was not from this State and he did not know anyone in the area but that he would look into it for her. He was at the offender's house for something over five hours in all and then went home. It appears that he did nothing about the offender's inquiry at this point. 9 In late March, despite his being on the MERIT scheme, the informant took a drug overdose and went into the Richmond Clinic in Lismore for about three weeks. He was then returned to gaol and transferred to Long Bay where he again shared a cell with Dalton. He discussed with Dalton his conversation with his mother. It is inescapable that Dalton and his mother also discussed this matter further. 10 On 12 June 2002, a day before his application for bail, the informant communicated with the police through his solicitor and disclosed what he knew about the Daltons' intentions. Not surprisingly, the police supported his bail application and he was released. 11 Although there are substantial reasons for questioning the truthfulness and reliability of the informant's evidence, it was not the subject of substantive attack and is supported in large part by the taped conversations that occurred between the offender and the undercover officer. In the result, and because of the way in which the police controlled the investigation, the informant's role was no more than to introduce the offender to Stuart in a manner that would give her confidence that Stuart was trustworthy. 12 The first meeting between Stuart and the offender took place on 24 June 2003. They met outside the offender's house in the Lismore area and then travelled to Lismore where they talked in a restaurant. The informant was present in the vehicle at the initial stages but nothing of any significance occurred at that time. The conversations were tape-recorded. 13 The important part of the conversation between Stuart and the offender occurred in the restaurant. Although the subject matter of the solicitation was indirectly prompted by Stuart, the offender volunteered why she wanted what she called "the job" done to Amy Kyle and then added that she wanted Troy Scott killed as well. Parts of the conversation were as follows (omitting the officer's expletives) – "Stuart: What's he [meaning the informant] told ya? Offender: He said that he found someone to do the job...on this bloody sheila.