Supreme Court New South Wales Medium Neutral Citation: R v Michael Phillip Martin; R v Candace Martin [2017] NSWSC 1106 Hearing dates: 3, 22 August 2017 Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Common Law Before: Hamill J Decision: 1. The evidence of the letter and the text message in response is not admissible as an admission by Candace Martin. 2. The evidence of Candace Martin's attempt to retrieve the letter and her lies in relation to the letter are admissible to prove a consciousness of guilt. 3. Order that Candace Martin be tried separately to Michael Phillip Martin. Catchwords: CRIMINAL LAW – evidence – admission by silence – tacit admission – husband and wife accused of murdering husband's father – whether failure of wife to rebut inference in husband's letter that she was involved evidence of an admission – where letter long and discursive – circumstances where silence may constitute an admission – where wife attempts to retrieve letter – where wife lies to police about knowledge of letter – evidence not admissible as an admission – admissible in different form to establish consciousness of guilt CRIMINAL LAW – separate trial application – where evidence of letter excluded as admission – letter to be considered by jury on different bases in case against each accused – where accused jointly charged – where substantial body of evidence admissible against both accused – where large parts of evidence not to be disputed by applicant for separate trial – where other evidence to be admitted against one accused only – where case against co-accused stronger than case against applicant for separate trial – whether accused embarrassed or prejudiced in conduce of defence – interests of justice Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Guimond v. The Queen (1979) 44 CCC (2d) 481 Mundey v Askin [1982] 2 NSWLR 369 R v Freeman, unreported NSWCCA 18/12/86 R v Grills (1910) 11 CLR 400; [1910] HCA 68 R v Middis and Ors, unreported SC (NSW), 27 March 1991 R v MMJ [2006] VSCA 226 R v Pham [2004] NSWCCA 190 R v Roff [2015] NSWSC 1853 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 Redman v R [2015] NSWCCA 110 Symss v R [2003] NSWCCA 77 Thatcher v Charles (1961) 104 CLR 57 [1961] HCA 5 The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 Woon v The Queen (1964) 109 CLR 529 [1964] HCA 23 at 541 Category: Principal judgment Parties: Regina M P Martin C Martin Representation: Counsel: Mr B G Campbell (Crown) Mr G D Wendler (M P Martin) Mr S Healy (C Martin) Solicitors: Director of Public Prosecutions (Crown) Stuart Percy & Associates (M P Martin) Universal Law (C Martin) File Number(s): 2015/00078236; 2015/00120687 (M P Martin)2015/00104796 (C Martin) Judgment 1. Michael Phillip Martin and Candace Martin stand jointly charged on an indictment containing five counts as follows: 1. Attempted murder of Michael Anthony Martin on 7 April 2014 (accused charged jointly). 2. In the alternative to (1) and against Candace Martin only, accessory after the fact to count (1). 3. Causing grievous bodily harm to Edmund Manning with intent to cause grievous bodily harm on 7 April 2014 (accused charged jointly). 4. Murder of Michael Anthony Martin on 13 June 2014 (accused charged jointly). 5. In the alternative to (4) and against Candace Martin only, accessory after the fact to count (4). 1. In view of the similarity in the name of the male accused and the alleged victim of counts (1) and (4), who are father and son, I will refer to them as "Mr Martin" and "the deceased". 2. Previously, there was a third accused on the indictment, a young woman called Jessica Honey Fallon. She was charged with the attempted murder of the deceased on 7 April 2014 and the infliction of grievous bodily harm on Mr Manning on the same date. Both Ms Fallon and Ms Martin made applications for orders separating their trials from the trial of Mr Martin. Those applications came before Latham J on 15 and 23 June 2017. Ultimately, the Crown consented to the separation of Ms Fallon's trial and her Honour made orders accordingly. 3. On 23 June 2017, her Honour was told that Candace Martin's separate trial application turned on a ruling as to the admissibility of certain evidence which the Crown seeks to lead as an admission on the part of Candace Martin. The admission is said to arise by virtue of Candace Martin's failure to refute an admission by Mr Martin made in a letter he wrote to her in late February or early March of 2015. There seems to be no dispute that the letter is admissible in Mr Martin's case. The parties and her Honour agreed that it was a matter that should be dealt with by the trial Judge. The trial is due to commence in Lismore on 28 August 2017 and I am to preside over the trial. 4. The matter came before me on 3 August 2017. Candace Martin asked to be arraigned and entered pleas of not guilty to the three substantive charges (counts 1, 3 and 4) but entered pleas of guilty to the two accessory charges (counts 2 and 5). Evidence was tendered on the evidentiary issue and the separate trial application. The parties provided written submissions and oral arguments were heard on that day. The matter was adjourned until 22 August 2017 for decision on the separate trial application and the admissibility issue. Further submissions were made on 22 August 2017 concerning the impact of Candace Martin's pleas of guilty to the accessory after the fact charges. 5. On the hearing of the separate trial application on 3 August 2017, counsel for Mr Martin indicated that he did not seek to be heard on the application, stating that he had no "dog in the flight", and asked to be excused because he was appearing in another trial. He was not present when Candace Martin entered the pleas of guilty to the accessory charges, although I proceeded on the basis that both Mr Martin and his lawyers were aware that she would do so. In this context, his neutrality on the issue of separate trials was surprising. 6. On the day the matter was listed for judgment (that is, today, 22 August 2017), I called for further submissions on the question of the impact of Candace Martin's pleas of guilty on the trial of Mr Martin. Counsel for Mr Martin submitted that the counts of accessory after the fact to murder should be severed from the indictment. He submitted that it would be confusing to the jury, and unfair on Mr Martin, to have the jury hear Candace Martin enter those pleas of guilty because the pleas contained an admission that Mr Martin was guilty of the substantive charges. The Crown opposed any order for severance. Candace Martin also opposed an order for severance. Both the Crown and Candace Martin took the view that severance might operate unfairly to Candace Martin. She wishes to have the jury hear her pleas of guilty so that it is clear, in her case and from the outset, that she acknowledges her guilt on those charges but denies being part of any joint criminal enterprise to murder the decease. Mr Martin accepted that if the trials were separated, the application for severance would fall away. An overview of the facts and the evidence tendered on the application The case of each of the parties 1. The prosecution case is that the two accused entered into a joint criminal enterprise to murder the deceased, who was Mr Martin's father. Mr Martin took out insurance policies on his father's life. By 24 February 2014 there were two life insurance policies in the amounts of $1.5 million (payable to the deceased's estate, of which Mr Martin was one of three beneficiaries) and $1 million (payable to Mr Martin). Candace Martin is (or was) Mr Martin's wife and the Crown case is that she also stood to gain financially from the murder. 2. On or about 7 April 2014, [1] there was an attempt on the deceased's life. The Crown case is that the accused procured Ms Fallon to carry out the murder and that Ms Fallon and Mr Martin were present. [2] The deceased was stabbed several times when he opened the door of his home. In the course of the attempt to kill the deceased, Mr Manning was seriously injured. 3. The prosecution case is that Mr Martin killed the deceased on 13 June 2014 by stabbing him on a number of occasions. 4. It is the prosecution case that the two accused acted in concert. Accordingly, each is responsible for the acts of the other and (generally speaking) evidence of acts carried out in furtherance of the common purpose is admissible against each of them. It is axiomatic that co-accused charged in such circumstances are ordinarily to be tried together. 5. Candace Martin's case, reflected in the pleas that she entered on 3 August 2017, is that she became aware of her husband's actions after the murder and that she is not criminally liable for the substantive offences but is guilty of being an accessory after the fact of each of the substantive charges in which the deceased was the victim. 6. The precise content of Mr Martin's defence is not known. However, it appears that his defence involves a denial of involvement in the events of 7 April and that he was a victim, along with the deceased, of the violence on 13 June 2014. The Crown Case Statement provides details of things he said to police after his father was killed. This included version of events to the effect that he and his father were victims of a home invasion in which his father was killed and he assaulted, bound with tape and hit to the head. A witness came upon Mr Martin who had "gaffer" tape over his eyes and binding his wrists and legs. He was making a muffled cry for help. Once the tape was removed, Mr Martin said "Oh my dad is up there, they got my dad." The Crown case is that this was staged. The evidence on the application 1. The prosecution tendered four documents on the separate trial application: Ex VD A1 - A text message sent from Candace Martin to Mr Martin on 14 February 2000. Ex VD A2 - A statement of Detective Sgt Sean West dated 27 August 2015. Ex VD A3 - The transcript of a telephone call between the accused on 3 April 2015. Exhibit VD B – A Crown Case Statement prepared after the separation of the trial of Mr Fallon. 1. The three documents comprising Ex VD A were originally attached to the written submissions of the learned Crown Prosecutor (MFI 1). 2. Candace Martin read an affidavit of the instructing solicitor, Mr Bell, and this included the following annexures: (B) An earlier version of the Crown Case Statement (in which Ms Fallon was identified as one of the assailant's on 6-7 April 2014. (C) A letter from Mr Martin to Candace Martin. (D) A text message dated 3 March 2015 at 10:35. (E) Transcript of a telephone call between the accused on 3 March 2015 at 12:00. (F)Transcript of a telephone call between the accused on 3 March 2015 at 20:29. (G) A statement of Detective Sgt Gorrie dated 30 April 2015. (H) Transcript of a telephone call between the accused on 1 April 2015 at 14:40. (I) Transcript of a telephone call between the accused on 1 April 2015 at 15:01. (J) Transcript (144 pages) of an electronically recorded interview between investigating police and Candace Martin conducted 9 April 2015. (K) Transcript of a recorded interview between investigating police and a witness Stephanie Broad dated 20 March 2015. (L) Transcript of a listening device recording of a conversation between Candace Martin and Stephanie Broad on 8 April 2015. (M) Transcript of a listening device recording of a conversation between Candace Martin and a Queensland undercover police officer recorded on 9 April 2015. 1. The written submissions of counsel for Candace Martin became MFI 2. 2. While all of the detail of the evidence that the Crown intends to adduce is not known, it seems to be clear from a perusal of the material tendered on the pre-trial issue that there will be a substantial amount of evidence which is common to both trials. Equally, it is apparent that there will be substantial bodies of evidence adduced by the prosecution, which is admissible against one accused only and not against the other. On 22 August 2017 counsel for Mr Martin indicated that he would apply for a view of the scene of both crimes and the Crown said that this course was not opposed. Given her admissions as to Mr Martin's involvement, it seems unlikely that a view would be necessary or desirable in a trial of Candace Martin alone. 3. I am unable to accept a submission by her barrister that the case against Candace Martin is purely based on admissions she allegedly made to various people. It is certainly true that the Crown will place particular reliance on such evidence in the case against her. However, as I perceive it, the Crown will also rely on a body of circumstantial evidence including evidence of the actions of Mr Martin. The full extent of the common evidence is not known because the parties did not tender all of the material upon which the Crown will rely and neither counsel identified all of the common evidence or the evidence admissible only against one of the accused. However, the parties seems to agree that the Crown Case Statement and the material attached to the affidavit in support of the notice of motion is sufficient to understand the nature of the case against each accused for the purpose of the present application. 4. The parties were jointly of the view that the merit of the separate trial application hinged to a greater or lesser degree on the admissibility against Candace Martin of an admission contained in a letter sent to her by Mr Martin. 5. However, the Crown submitted that, even if that evidence is not admissible against Candace Martin as an admission, it may nevertheless be tendered at her trial and be subject to directions as to its use. If the letter was said to be inadmissible against her altogether, the jury could receive (and would obey) a direction that this particular part of the evidence can only be used against Mr Martin and must not be used in considering the case against Candace Martin. Alternatively, if the evidence was held to be admissible on some basis other than as an admission (a matter to which I will return), the jury would receive (and obey) directions as to the limitations on its use, including a direction that it could not be used as an admission by Candace Martin. In either event, the Crown submits that the case should proceed as a joint trial. 6. Counsel for Candace Martin submitted that his client could not receive a fair trial if the evidence was not admissible against her (or admissible on some basis other than as an admission) and that it would be impossible for a jury to disregard the letter if it was called upon to consider the letter as an admission in the case of Mr Martin. Whilst this was an important aspect of the separate trial application, counsel also relied on an assertion that the case against his client was substantially different (and weaker) than the case against Mr Martin. Nevertheless, he seemed to accept that if the letter was admissible as an admission by Candace Martin, the separate trial would probably fail. THE ADMISSIBILITY ISSUE The admission to which objection is taken 1. To appreciate the arguments put on both sides as to whether the letter from Mr Martin to Candace Martin is admissible as an admission by or against Candace Martin, it will be necessary to set out that letter in full. It is a nine page closely typed document which chronicles the lengthy history of the relationship between husband and wife including its many ups and downs. It culminates with a plea for reconciliation. On page 7 of the letter, Mr Martin wrote: "I guess we never really got better after that. Money got tighter and we had another bright idea to free our lives up more. I wouldn't have to work so hard and therefore worry less. You and I would finally be able to have the things in life we ever wanted. Plans were set and everything seemed perfect. Our biggest problem is that we are too good at heart. Our guilt has stuck since the moment we concocted our bright idea. Looking back, if I could have seen the ramifications on our marriage, there is no way I would have considered it, but again, they have to live with my choices. After that trip to Nanna and Pa's and that night therafter, I feel so guilty, but not for what happened but for the way I let myself lose control. 25 years of torture from these people led me to do the unthinkable. I let myself lose control and it scared me. Not at what I did but the mere fact that the animal side got the better of me. I know for a fact that I can control myself every other time. But for those few minutes, I let my emotions control everything I did and the result could be seen. I was a very hurt man who had been hurt by the very person who should have loved me the most but caused me so much pain." 1. Based on the surrounding circumstances, the timing of events and the content of the letter, this part of the letter is capable of being relied on by the Crown as an admission by Mr Martin of his involvement in his father's death. However, it is the prosecution case that the first paragraph quoted above involves an assertion by Mr Martin that Candace Martin was a party to the plan to kill the deceased. The prosecution relies on words such as "we concocted a bright idea" and "our guilt has stuck" to advance the argument that the reference to the fact that "plans were set" is a reference to the joint plans of both accused. 2. As I understand it, the evidence is silent as to when the letter was written and sent. However, on 3 March 2015 Candace Martin sent a text message to Mr Martin in the following terms: – "I got your letter and read it. I can't ... Too much to deal with. Life needs to be more simple. You may see it as running. Its not. Its self preserving. I can't let into my head or heart again. I have put it behind me. You are right, our love is deep. But has destroyed me. I have picked up the pieces. I would rather be with a person who barely scratches the surface than someone who can hurt me so deeply. I ultimately just want to be alone. Kids need me. They are everything. I have hurt you and I am so sorry. I can't trust you, or anyone, not to hurt me again. I won't give anyone that power." [3] 1. The prosecution case is that this text message refers to the letter sent by Mr Martin. Candace Martin submits that there is an element of speculation in that proposition. I accept that submission but, for present purposes, I will act on an assumption that the text message refers back to the letter. If admitted, that would be a question for the jury to resolve. Is the evidence admissible to prove an admission? 1. The prosecution submits that the failure of Candace Martin to deny the suggestion or implication on page 7 of the letter that the plan to kill the deceased was a joint one, is evidence by which the jury could conclude that Candace Martin accepted the proposition. In other words, her silence in the face of the letter constitutes an admission by her that the contents of the letter, and the inferences to be drawn from those contents, were accepted by her. Thus, her silence can be used as an admission that she and her husband had a "bright idea" involving a joint plan to kill the deceased and that, as a result, their (joint) "guilt has stuck". 2. Paragraph 27 of the Crown's written submission states: "It is submitted that it is well established that a failure to deny an accusatory statement in circumstances where some denial or explanation could reasonably be expected can amount to an admission by conduct or tacit admission. (R v Freeman, unreported NSWCCA 18/12/86)." 1. The facts of Freeman were quite different. That case involved the failure of a public solicitor on a bail application to deny (on the accused's behalf) certain allegations ventilated before a magistrate. Ultimately, the Court of Criminal Appeal held that the evidence of the solicitor's failure to contradict the asserted facts was not admissible as a tacit admission by silence. Its admission caused the trial to miscarry. However, the decision turned on its facts and the following passage in the judgment of Street CJ is relevant to the question of admissibility that arises in the present case: "It is of course well established that, where an accusatory statement is made in the presence of an accused person, it is not evidence against him of the facts stated except in so far as he accepts it. Acceptance may be by way of word, conduct, action or demeanour. Whether there is acceptance is a matter for the jury. A mere denial by an accused does not render the statement inadmissible but its evidential value when he denies it is limited and the judge may well think it proper to exclude such evidence. Where failure to deny it is relied upon, it is necessary to ensure that, before any such evidence is admitted, the circumstances are such as to leave it fairly open to conclude that silence is such as to convey a tacit admission of the truth of what is being asserted. This will, of course, require consideration of whether the circumstances were such that some denial or explanation might reasonably be expected." 1. Counsel also took me to the Victorian case of R v MMJ [2006] VSCA 226. That was a case of child sexual assault. The victim was the child of the accused. The Crown led evidence from the mother of the child (and wife of the accused) that the accused remained silent when she put a number of questions to him. She said "he ignored a lot of my questions" and he "would only answer questions that he wanted to answer." The Court was divided over the issue of admissibility and the question of whether his silence or selective answering of questions ought to have been left to the jury as an admission. Warren CJ took the view that the evidence was admissible and set out her reasons at [15]-[20]. Her Honour relied (at [18]) on the following passage from the judgment of Isaacs J in R v Grills (1910) 11 CLR 400; [1910] HCA 68: "It is an elementary rule of law, going to the very foundation of justice, that no man shall be adjudged to be guilty of a crime upon evidence of another person's previous assertions. It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers. But it is evident that upon such an assertion being made, and equally whether in the accused's absence or presence, he may admit its truth, and if he does, then it becomes evidence against him of his guilt, not because another has said it, but because of the admission. It is then equivalent to his own statement, and is receivable in that character. And it is further manifest that the acknowledgment of its correctness may be made in an infinite variety of ways. There may be express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgement or there may be conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected." 1. Buchanan and Ashley JJA, in separate judgments, took a different approach. Buchanan JA said at [53] that the reception of the evidence and the prominence that it took in the trial was "extremely prejudicial to the applicant" and that "the generality of the evidence deprived it of any significant probative effect." Ashley JA took the view at [85] that the evidence may have been admissible as part of the "relationship" between the parties but doubted that it was evidence of an admission to any particular allegation. His Honour referred to the well-known statement by Windeyer J in Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23 at 541: "A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all." 1. In addition to the two authorities referred to by the parties, I have also considered the civil cases of Mundey v Askin [1982] 2 NSWLR 369 and Thatcher v Charles (1961) 104 CLR 57; [1961] HCA 5. 2. In Mundey v Askin, the Court (Moffit P, Reynolds and Samuel JJA) said at 373: "We think that the principle is as stated by Bowen LJ in Wiedemann v Walpole [1891] 2 QB 534, at 539: – 'Silence is not evidence of an admission, unless there are circumstances which render it more reasonably probable that a man would answer the charge made against him, than that he would not.' (and see Young v Tibbits (1912) 14 CLR 114 and R v Newman (1852) 1 El & B1 268; 118 ER 437.)" 1. In Thatcher v Charles, the High Court was concerned with whether the silence of a civil litigant could be used against him in a driving case. Fullagar J (with whom Kitto J agreed) set out the relevant matter of principle in the context of the alleged admissions as follows: "The conversations in question were two. The first took place at some unspecified time before the accident. There was evidence that Thatcher was in the habit of riding a motor cycle about the community housing centre in which the accident occurred, and evidence (which I should have thought clearly inadmissible) that he rode it in a dangerous manner. The father and mother of the plaintiff deposed that on one occasion the father (who was chopping wood at the time) said to Thatcher in the presence of the mother: "If you run over one of my children, I will put this hatchet through you." To this, it was said, Thatcher made no reply. The two versions of what was said are not identical, but the difference is immaterial. This evidence was, in my opinion, clearly inadmissible. It was put that it conveyed to the defendant a warning of the fact that children frequented the area. But this appears to me to be an altogether unreal view. Neither the purport of what the father said, nor the purpose of its being tendered in evidence seems to me to have had any genuine relation to the knowledge of the defendant that children frequented the place of the accident. The evidence went to show that the defendant was in the habit of riding his motor cycle so recklessly as to provoke an emphatic protest from an observer. This was quite irrelevant matter, and the only possible way in which its introduction could really advance the plaintiff's case or damage the defendant's case was by creating prejudice in the minds of the jury by conveying the impression that the defendant was an habitually reckless driver of motor vehicles. In that aspect it could be very damaging indeed to the defendant, but it had no real bearing on any issue in the case, and it ought, in my opinion, to have been excluded. The other conversation took place shortly after the accident between the plaintiff's mother and the defendant. According to the plaintiff's mother, she said to the defendant: "Why did you do it? You drive too fast around here. We have always said you would collect somebody." To this, she said, the defendant made no reply. This evidence also was, in my opinion, inadmissible. This is a civil case and not a criminal case, but even in a civil case I do not think, generally speaking, that evidence of statements made to a person and not denied by him is admissible unless it is fairly open to a jury to infer an admission of a relevant fact from the silence of that person. Here it was, I think, out of the question for the jury to infer any admission. What was said (apart from the introductory question) did not relate to the specific occasion in question." [My italics]. 1. It is implicit in the italicised portion of Fullagar J's judgment that such evidence might more readily be admitted in a civil case than in a criminal case. However, the principles are the same. 2. These cases demonstrate that the question of when silence in the face of an accusation might be construed to be an admission will turn on all of the circumstances. The question, ultimately, is whether the circumstances and the nature of the accusation or statement were such that a denial would be expected or, where the case is being tried by a jury, whether it would be open to the jury to decide that a denial would be expected because the failure to respond to, or deny, the accusation is a tacit admission by the accused person. 3. It is in that context that it is necessary to consider that the particular passage upon which the Crown seeks to rely falls towards the end of a lengthy and discursive piece of correspondence detailing many other facts and circumstances. To appreciate that, it is necessary to consider the entirety of the letter. The full text is included as an annexure to this judgment. 4. It is then necessary to consider Candace Martin's response in her text message of 3 March 2015. She said that she had received the letter (again, assuming it is the same letter) and that she had read it. However, she said it is "too much to deal with" and does not respond to any of its substantive parts (apart from indicating she wants to be alone to look after the children). Given the length of the letter, it is impossible to conclude that the particular admission and implication was clear to her at the time. I accept that when the matter was brought to her attention by investigating police she understood the implication, but that does not address the question of whether the nature of her texted response was such that a denial was to be expected. 5. I am unable to conclude that it would be reasonable to infer an admission by silence from Candace Martin's failure to refute the contents of the particular passages relied upon. Even those passages are somewhat ambiguous in their nature, although I accept that it would be open to the jury to conclude that they constitute an admission on the part of Mr Martin. 6. This case is very different from cases where an accused person is confronted with accusations in person and either fails to deny those accusations or chooses to respond selectively. 7. Accepting that the evidence passes the threshold test of relevance in ss 56-56 of the Evidence Act, I am of the opinion that the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to Candace Martin or may be misleading: s 135 Evidence Act 1995 (NSW). I am also of the view that the probative value of the evidence is outweighed by the danger of unfair prejudice to Candace Martin: s 137 Evidence Act. 8. For those reasons the evidence of the contents of the letter (and the reply by text message) is not admissible to prove an admission on the part of Candace Martin. Is the evidence otherwise admissible and, if so, in what form? 1. The Crown submits that the evidence is admissible on another basis. The Crown points to evidence that establishes that Candace Martin took steps on Mr Martin's behalf to remove the letter from his office on around 1 April 2015 and that she lied about her knowledge of the letter (and the steps she took to retrieve it) when interviewed by police on 9 April 2015. 2. In a telephone call at 14:40 on 1 April 2015 the two accused were recorded having the following discussion over the telephone: "Mr Martin: No, it's all right, just you know want to get home, yeah, so did you arm, did you get that letter from work? Candace: What letter? Mr Martin: The psychiatric letter. Candace: Oh no I haven't. I will, get that for you. Mr Martin: Can you make sure, like even today. Candace: Yeah okay, alright. Mr Martin: Can you, can you get, like go into my third drawer. Candace: Yep. Mr Martin: Where are you now? Candace: At home. I will get it just before I pick Olly, if that's okay. Mr Martin: Yeah, yeah just, just ask the girls, if you can just duck into my office and its… Candace: Yeah. Mr Martin: … in the third drawer. Yeah if you could do that, like immediately, but yeah. Candace: Yeah okay (unintelligible) Mr Martin: Yeah I need to, yeah, yeah. Candace: You need to cancel it? Mr Martin: Yeah, yeah just, a psychiatric referral that should be, yes so. Candace: Ah huh, right. Mr Martin: It's about six, it's about six pages long. You will know it when you see it. Candace: Right. Um, just yeah I … Mr Martin: You've seen it once before, so. Candace: I have? Just the police might have it that's all. Mr Martin: Did they go to work? Candace: Cause they, they did. Mr Martin: Can you go and have a look? Candace: Yeah I will. I promise I will. Yeah. Mr Martin: And I'll call you tomorrow." 1. Later that day there was a further telephone conversation in which Mr Martin asked Candace Martin "So you haven't been to work yet?" to which she replied "no not yet." 2. On 3 April 2015 there was a further call in which Mr Martin asked Candace whether she had been to work for him and she replied "I did. Um, it's not there." 3. The Crown then points to the lengthy recorded interview between police and Candace Martin that took place on 9 April 2015 commencing at about 9:30am and concluding at 1:30pm. Towards the end of that interview, the police (at Q 1430) told the accused that they had seized the letter while executing a search warrant on Mr Martin's office. They read passages of the letter to the accused and asked her to explain them. They put to her that Mr Martin had asked her to retrieve the letter from the drawer in his office and that she had agreed to do so. She denied any knowledge of the letter and denied agreeing to take steps to remove it from Mr Martin's office. 4. The Crown will rely on those responses as lies demonstrating a consciousness of guilt. 5. After the interview, the accused spoke with an undercover police officer and the conversation was recorded by listening device. This occurred at around 6:30pm on 9 April 2015. She told the undercover officer police "He wrote me a letter and ... the police found it." She said "it was pretty much a written confession." Later the undercover officer asked her "Do they [investigating police] have much on him?" and Candace Martin replied, "that letter. And now me." [4] 6. This body of evidence is capable of establishing that Candace Martin took steps to retrieve the letter (or at least agreed to do so) and that she told lies to the police on this subject. Accordingly, the evidence is relevant and admissible. It is capable of being used by a jury to establish a consciousness of guilt in Candace Martin. However, contrary to what I understood the Crown Prosecutor to submit, that decision does not mean the evidence become admissible as a tacit admission because of her failure to refute part of its contents in the text message of 3 March 2015. Nor does it mean that the letter itself, or its precise contents, should be or need to be elicited before the jury. SEPARATE TRIAL APPLICATION Principles 1. Section 21(2) of the Criminal Procedure Act is as follows: "If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 1. Section 21(6) says "any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes." 2. Section 29(3) provides "proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 3. I summarised the relevant principles in R v Roff [2015] NSWSC 1853 at [34]-[57]. The learned Crown Prosecutor referred to a similar, more authoritative but less current, summary undertaken by Sheller JA in Symss v R [2003] NSWCCA 77 at [68]-[73]: "68 The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts. 69 In an unreported decision of 27 March 1991, in R v Middis 70412 of 1990 [5] , Hunt J said on the question of whether there should be separate trials: 'Briefly, the relevant principles are that: 1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.' 70 A little later in his judgment at p 5 Hunt J said: 'I do not believe that the Court of Criminal Appeal in Oliver [(1984) 57 ALR 543] intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would – if it arises – result in positive injustice to him in a joint trial.' 71 In Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89 Toohey J, with whom Mason CJ and McHugh J agreed, said on the question of whether there should have been separate trials: 'King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other.' R v Webb and Hay (1992) 59 SASR 563 at 585. What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Reg v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others Reg v Demirok (1976) VR 244 at 254. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused Reg v Harbach (1973) 6 SASR 427 at 433. In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice, or put another way, whether improper prejudice has been created against an accused. In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed (1992) 59 SASR at 585: 'That is a commonplace feature of a joint trial and does not of itself render separate trials necessary.' Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred.' 72 In R v Patsalis and Spathis (1999) 107 A Crim R 432 Kirby J refused an application for separate trials which was opposed not only by the Crown but also by the co-accused. In his reasons for judgment, which on appeal to the Court of Criminal Appeal (2001) NSWCCA 476 at 148, Heydon JA, as his Honour then was, described at 148 as a model of their kind, Kirby J said at 434: 'There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered; R v Oliver (1984) 57 ALR 543.' 73 Dealing with cut-throat defences Kirby J referred to the decision of Hunt CJ at CL in Ignjatic (1993) 68 A Crim R 333 and to Webb and Hay. In Ignjatic Hunt CJ at CL, after referring to earlier decisions, said at 339,: 'Obviously, there will be cases in which cut-throat defences are raised where it may be appropriate to order separate trials, but they would not in my view arise frequently. In a proper summing up, the jury will be directed separately in relation to the evidence admissible against each accused; Masters (1992) 26 NSWLR 450 at 455. The undoubted prejudice created by such an unsworn statement by a co-accused in a joint trial is usually considerably lessened in such circumstance, and thus it would not amount to the positive injustice required to warrant separate trials.' (emphasis added) 74 In this Court in Fernando (1999) NSWCCA 66 the trial judge had refused to order separate trials. The Court identified the issue which gave rise to the application for separate trials in these words at para 220: 'The tenor of Brendon Fernando's statements to the police was that while he was present during most of the events which occurred he was subject to the control of Vester Fernando, who was armed with a machete. Indeed, he stated to the police at the time when the victim was killed he was not present, having left the company of Vester Fernando and the victim shortly before the lethal event must have occurred. Thus, while his statements may not be considered as being a complete 'cut-throat' defence they are certainly exculpatory to a degree of his own participation and thoroughly implicate Vester Fernando.' 75 Brendon Fernando did not give evidence so that his statements were not capable of being tested by either the Crown Prosecutor or Vester Fernando's counsel. Even so, the Court said at para 222: 'However, his recorded admissions do, in the Court's view, fall within the type of evidence adverted to in the authorities and particularly by Toohey J in Webb and Hay which support the contention that there ought to have been a joint trial.' 76 For present purposes I regard it as sufficient to emphasise the factors identified by King CJ in Collie and Webb and Hay and adopted by Toohey J in Webb and Hay in the High Court. There are important reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together, particularly where each seeks to cast the blame on the other. The dangers from the admission of evidence which would not have been admitted if the appellant had stood trial alone can be obviated by express and careful directions as were given in this trial". 1. In the context of co-conspirators, the High Court considered when trials should be conducted jointly in the case of The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32. Gibbs CJ, Aickin, Wilson and Brennan JJ concluded at 678: "in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v. The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. 1. This passage underpinned the oft-cited decision of Hunt J in Middis to which Sheller JA referred in Symss. 2. Counsel for Candace Martin, in written and oral submissions, acknowledged that the starting point was that the trials should be heard together. However, it was submitted that the case falls within the kind of case contemplated in Middis. Reliance was placed on the decision in R v Pham [2004] NSWCCA 190. In that case, Adams J explained that the expression "immeasurably stronger" used by Hunt J in Middis should be understood to mean "significant, though not incommensurable". Spigelman CJ and RS Hulme J agreed with Adams J subject to some additional observations in the judgment of RS Hulme J. RS Hulme J emphasised that: "there was no practical way [the jury] could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the Appellant than they had or would have done in the case against his brother." 1. That conclusion arose because of admissions made by the brother that tended to corroborate the evidence of the witnesses in question but which was not admissible against the appellant. All three judges were of the opinion that Pham's trial miscarried. The factual circumstances in R v Pham were quite different to those of the present case although there are some common features. The most significant of those features is that the jury would be called upon to assess the same evidence on different bases and the accused would be required to face a trial where an admission made by her co-accused, which is not admissible against her as an admission, may be capable of suggesting that she was involved in the crime. Application of these principles to the present case 1. I have concluded the correct application of those principles, and the proper exercise of the discretion provided by ss 21, 29 and the common law, is to order separate trials. 2. The material tendered on the separate trial application included two versions of the Crown Case Statement and the documents annexed to the affidavit of Candace Martin's solicitor. The decision must be made in the light of that material and without knowing all of the detail in the Crown's brief. 3. As I have said, there appears to be a considerable body of evidence that is common to both accused. It seems this will include evidence proving the incidents giving rise to the charges, evidence going to the injuries and cause of death, witnesses who will testify about the movements of the two accused prior to and around the time of the offences, evidence concerning the insurance policies and Mr Martin's interaction with the insurers, and communications between the two accused before and after the offences were committed. 4. There are also separate bodies of evidence admissible against each accused that is not admissible against the other. This includes their interviews with police and evidence of post offence conduct, including lies, relied on by the Crown to demonstrate a consciousness of guilt. 5. The issue for the jury will be different in each case as a result of the pleas of guilty entered by Candace Martin. In her case, Mr Martin's involvement in the serious assaults of 7 April 2014 and the killing on 7 June 2014 will be admitted. That admission is inherent in her pleas of guilty. Mr Martin's case appears to be that he was not involved in the first incident and was a victim in the second. This is not strictly a "cut throat defence". Rather, like the case of R v Roff, it involves one accused implicating the co-accused while the other accused denies involvement. In Roff, the co-accused (Tarrant) implicated Mr Roff by her admissions to police. In the present case, Candace Martin will implicate Mr Martin by the solemn admissions inherent in her pleas of guilty to the accessory after counts. 6. The Crown case is that there was longstanding animosity between Mr Martin and the deceased, and that the reconciliation that occurred in the early part of 2014 was a "ruse" to justify the taking out of the insurance policies that provided the financial motive for the killing. The Crown will seek to establish that Candace Martin "encouraged and emboldened" her husband by taking part in the "ruse" and agreeing to cover for him. [6] In light of her pleas of guilty, the issue appears to be when she became aware of her husband's plans and whether she was an accessory before (as opposed to after) the offence or (put another way) whether she was party to a joint criminal enterprise to kill the deceased. Her liability for the grievous bodily harm of Mr Manning involves the application of the principle of extended joint criminal enterprise. 7. Insofar as it is possible to make an assessment on the material tendered on the application, it appears that the case against Mr Martin is stronger than the case against Candace Martin. That assessment is based on Mr Martin's direct involvement in the two incidents, his presence at the scene of the murder, the evidence connecting him to the taking out of the insurance policies, his status as a beneficiary of those policies, the animosity between him and the deceased and the admissions made in the letter to Candace Martin. 8. The prosecution will rely on the letter from Mr Martin to prove an admission. The jury will be required to consider the contents of the letter and decide whether it constitutes an admission (and, if so, to what) or whether it is capable of some other explanation. Having undertaken that task, and used the letter in that way in the case against Mr Martin, it would undoubtedly be difficult for the jury to follow and to obey directions that it should disregard the letter in the case against Candace Martin except for the purpose of determining whether her attempt to retrieve it for her husband, and her subsequent lies about it, demonstrated a consciousness of guilt (and, if so, in respect of which offence). I accept Mr Healy's submission that the adducing of the letter in her trial will make the case against her significantly stronger, albeit that it is not admissible against her and that the jury would be directed accordingly. That conclusion is not determinative of the application for a separate trial but it is very important in determining whether Candace Martin would be "prejudiced or embarrassed in her defence" and whether it is in the interests of justice to separate the trials. 9. I accept that the starting point is that the trials should be conducted jointly. I have taken into account the potential or risk of inconsistent verdicts if the trials are separated. I also accept that there will be a degree of duplication in the tendering of common evidence in separate trials and that this will involve some inconvenience to the witnesses and will, almost certainly, lengthen the proceedings. However, the eliciting of the evidence proving the attempted murder and murder, and Mr Martin's involvement in those events, is likely to be much simpler in Candace Martin's trial as a result of her admission (inherent in her plea) that Mr Martin is guilty of both offences in which she is alleged to be an accessory. Further, if the trials are separated the jury will not be required to approach that body of evidence on two different bases. That is, the jury will not be required to approach Candace Martin's case on the basis that the inferences the Crown asks it to draw against Mr Martin should be accepted while, in Mr Martin's case, deciding whether there is any other explanation available. 10. I accept that, generally, juries are able to discern between the cases for co-accused and are fastidious in obeying the directions of trial judges, including directions to disregard evidence tendered against one accused but not against the other. [7] However, as I said in a different context, this principle can only be taken so far: "The discretions residing in a trial judge to exclude prejudicial evidence, to suppress evidence during the currency of a trial, to discharge a jury without verdict if inadmissible evidence comes before it and to order separate trials of co-accused and severance of multiple counts are all examples of legal remedies which would not exist if it were universally the case that juries were capable of obeying directions and disregarding prejudicial material. It is a question of degree and turns on a thorough analysis of both the nature and extent of the prejudicial material and the method by which it will be introduced into the trial." [8] 1. It is one thing for a jury to understand and obey a direction that it is to disregard altogether evidence tendered against one accused but not admissible against another. It is a more difficult thing for a jury to come to certain conclusions about whether a piece of evidence constitutes an admission in one case, and to put those conclusions out of its mind while considering the same evidence (in the other case) on the issue of whether the accused demonstrated a consciousness of guilt by taking steps to hide the evidence and by lying about it. 2. Having considered all of the above matters, I am satisfied that it is in the interests of justice to make the order that Candace Martin be tried separately from Mr Martin. I am also satisfied that the accused will be embarrassed or prejudiced in her defence if the trials are conducted jointly. The factors militating in favour of making the order overcome the considerable hurdle, and prima facie position, that those alleged to have been jointly responsible for a crime or crimes should be tried together. 3. I have taken into account the desirability that the accused be tried together in terms of the convenience of witnesses and likely savings in court time. I have considered the risk of inconsistent verdicts. Without attempting to be exhaustive, and in short summary form, the matters that persuade me that there should be an order for separate trials are: 1. The case against the Mr Martin is considerably stronger than the case against Candace Martin. 2. The case against Candace Martin will be made stronger by the admission in a joint trial of evidence that is not admissible against her (namely, the admission made by Mr Martin and the full text of the letter in which that admission is made). 3. While there is a significant body of common evidence, there are also substantial bodies of evidence which are either admissible against one accused only or unlikely to be disputed (and able to be elicited briefly, or made subject to admissions) in Candace Martin's case. 4. The jury would be required to consider the evidence of the letter on the basis that it may constitute an admission against Mr Martin in deliberating on his case, while being required to ignore the text of the admission in Candace Martin's case in considering whether her actions in attempting to retrieve the letter and telling lies about the letter in one case. 5. In spite of firm and clear directions, even the most conscientious juror will struggle to obey such directions because of the sub-conscious impact of the assessment of the admissions in Mr Martin's case when the jury considers the consciousness of guilt evidence in Candace Martin's case. 1. The impact of Candace Martin's pleas of guilty to the accessory after charge also militates in favour of separating the trials of the two accused. I accept the submission of the Crown Prosecutor and counsel for Candace Martin that severance of those counts may operate unfairly to Candace Martin. However, there is some force in the submission that Mr Martin may be embarrassed or prejudiced if he were tried by the same jury that heard Candace Martin enter pleas of guilty which have, as their foundation, the guilt of Mr Martin. It is not necessary to consider this matter further as I have not heard full submissions on the issue and no application for separate trials was made by Mr Martin. However, it is a further matter that fortifies the conclusion that I should exercise the discretion to separate the trials of the two accused. 2. Accordingly, I will make an order that Candace Martin be tried separately to Phillip Martin. ORDERS 1. For the foregoing reasons, I make the following orders and evidentiary rulings: 1. The evidence of the letter and the text message in response is not admissible as an admission by Candace Martin. 2. The evidence of Candace Martin's attempt to retrieve the letter and her lies in relation to the letter are admissible to prove a consciousness of guilt. 3. Order that Candace Martin be tried separately to Michael Phillip Martin ********** Annexure Letter from Michael Phillip Martin to Candace Martin [Page numbers of originals indicated in square brackets] [P 1] Dear Candace, I am writing to you in this letter because as you are well aware of by now, I am not the best at revealing my emotions. No matter what you think, I sincerely do care for you and hope that you are coping as well as what you seem to be. Reading this letter is entirely up to you and should you prefer to tear this letter up or disregard it as rubbish, then I completely understand. However, should you read it, then all I ask is that you think on what I say over a period of time. I wish to go back to the very start, back in 2005 when we were both very young... Teenage sweet hearts I must first say. Unfortunately you were not my first and I will drum it into all our kids to wait for that first love because not losing my virginity to you is one of my biggest regrets in life. However, you were definitely my first love and in my mind there had never been any other girls. It stills sits in my mind the amount of times we used to fondle each other, everywhere and anytime. But sexual feelings aside, the flutter in my chest each time I saw you took my breath away, whether looking amazing in a dress and makeup or sweating and vomiting at zenny. That was true love. Not the kind that comes and goes, or even the kind in the movies (after all the movies are fake), but certainly for me, it was true love. I imagined my life with you, some kids, and beautiful possessions that you so certainly deserve. I look back at how young I was and think maybe I was just a foolish teenager with my head in the clouds (or some people would even say thinking with the wrong head J) But I know for certain now, years later that I wasn't just dreaming. You were and are my soul mate. When we broke up as teenagers, we were so determined to be strong and not show how much we were hurting. So much so that we thought the other didn't even have feelings for each other, "ever". But we both know now that we longed for the hugs and kisses from each other, even years later, and even when we had partners (well, maybe you had a partner, mine... words can't explain...) But we had our best go at trying to move one with our lives. When I found out you were pregnant and then going to be married, a little piece inside me shattered, because I honestly thought I'd lost any chance I ever had with you forever. And why… just because I was such a hard headed fool. The years ticked by. Yeah, I had Jack (as weird as that sounds). But Jack and I were as close as two males should ever be. We would finish each other's sentences, cry when the other was down and out, drink and party when the other felt happy. The times, good and bad, that Jack and I had was a stage in my life that I never want to take back. I remember my first rodeo with Jack. Toogoolawah Rodeo 2008. Jack said "Mick mate, Toogoolawah Rodeo is on Saturday 3 weeks. What do ya reckon, should we ride bareback". We'd watched video after video, and Jack had an old bareback rigging from the 70's, so actually jumping on sounded like the best idea anyone had ever come up with. Jack was underage to legally sign up so I signed him up as my "step brother" as was his "legal guardian". What a load of crap. So without telling the Old Fella where we were going, Jack and I packed our swags and gear, cranked up old Slim Dusty and headed to our first rodeo. [P 2] The rain had made the usual arena too wet so they set up a small roughstock yard on the oval, run a couple of tines through which didn't soften the yard, just made it look a little rougher. The only gear we had was an old bareback rigging from the 70's (similar to that old leather one I have), a gardening glove, no spurs, no vest, and Jack had an ice hockey helmet. Biggest redneck hicks this side of Bourke. Anyway, Jack was first. He came out of the chutes on this pieball horse which started roaring. Let me say this, Jack "shit" himself. About three bucks out and he grabbed on with two hands and when the pick-up men come to get him, he thought "fuck this" and just jumped off. Funniest thing you've ever seen. Then it was my turn. Well big tough Mick, "na Woodrow (I called him that from Lonesome Dove), I don't need a helmet, I won't fall off". Haha. This horse came out of the chutes, bucked a couple of times and took off. Well I slid off half sideways but I was still hanging on. Everyone thought I was hung up and couldn't get off, but I just wanted to ride so bad I didn't want to let go. Well upside down, my head hit the ground, I got thrown a couple of metres into the dirt and got up with the biggest smile on my face. I had never (even with the ring fight) had that much adrenaline. Back then Jack and I only drunk by ourselves. So back to camp we go, had a few beers and a sleep. When we got back to the Old Fella's, we were so excited we jumped out and said "Hey Old Fella, guess what we done last night." He replies "I hope you two didn't get into bloody trouble again" "na, we rode bareback last night at the Toogoolawah Rodeo". Well you could of heard a pin drop. We thought he was going to explode. Then he just said "you silly buggers. You should of told me and I would have given you a hand." Well that was it, Jack and I were hooked on rodeo. But I thought I'd tell you that even though you've heard it a million times, but that was a time with the first person since you that I had been truly happy. Unfortunately, rodeo was the same thing that tore Jack and I apart. And funny enough; predominantly because of drug users. I still maintain that he doesn't tough drugs them but then again, I have been proven wrong many times before. But that did harden me. It took me a lot to lower my guard even for you. Anyway, even though Jack and I were best mates, there was still something missing. Something I needed and I remember how you still played on my mind. I had company, but I didn't have love. I didn't have somebody to hold me or for me to hold them. I think sex is over exaggerated because while the feeling is great, it's the close bond of love that gives the best feeling. Old Country Music is one of my passions but also one of my weaknesses. As much as it makes me happy, the lyrics also made me very lonely. I guess that's why I tried to find the "love" feeling that you and I had with others but I never could. Sex never gave me that flutter in my chest and I guess that's why I tried a "relationship" (if that's what we'll call it). But she had the mind of a two year old (still does; nothing's changed). I needed more than just touch. Something I could interact with. When we spoke again after so long without communication, it was like a spark was instantly lit. You could give me more than just intimacy. You were (still are), apart from extremely beautiful; bright, passionate, loving, mothering, nurturing. The list could go on. But it was you [P 3] that was the part missing in my life and I guess in part that made me more lonely because I certainly thought I didn't have a chance. Then when we really opened up, you revealed your feelings about your own relationship. How, no matter what you did, it wasn't appreciated. How, he would just come home and do nothing. And no matter what you did, he was just like a version of Sam. Do nothing but expect everything. And when we both knew each other's feelings for one another, it was like a light bulb suddenly turned on inside my head. Maybe, just maybe, I had a chance and that night, sitting on the bank of Atkinsons Dam (of all places). You and I shared that special moment. Not the sexual moment that many would have but that intimate connection that souls make (how sappy is that). I must admit, I had big reservations about starting a relationship with a married woman, regardless of whether you had broken up. I guess I still wasn't convinced it was real and wasn't sure if I was just that rebound guy. In some ways I look back and think, is that why I didn't just tell McKay to fuck off from the very start? I guess there was that fear that you were only "window shopping" and that maybe after that I would be alone again. That day that you refer to "me cheating on you" was a black day in my mind. I will maintain to my dying day that I did not do anything sexual however, I did cross a line that shouldn't be crossed, regardless of what stage of the relationship anyone is at. Nesi had recently broken it off with Jack, and so her and McKay came over for sympathy I guess. Maybe they had other things on their mind, who knows, who cares. But the alcoholic that I was, thought that the answer would be alcohol, so I brought out my home brew. We were all shotting my spirits however the two girls were certainly downing my one to their two / three. A couple of bottles were empty and a swim decided like a good idea. The girls already had bikinis on and I stripped to my jocks. Nothing out of the ordinary happened until Nesi planted a kiss on me. I stepped back and said "whoa Nesi. That's not going to make it better". So Nesi planted a kiss on Jess whom returned the favour. After the swim we went back for more drinks. We had a couple more and Jess started rubbing Nesi and things progressed from there. Jess knew you and I were together because she kept saying "she won't do this and she won't do that. I'll do whatever you want, come over here, etc..." I was watching "the show", which to this day I regret. After probably half an hour, Angus came home and they ran out naked and tried with Angus. It was the same time Angus has the clap otherwise he would have gone for it for sure. He always used to talk about banging Nesi and how lucky Jack was. Anyway, regardless of what Rob or Angus say, none of them can actually say they saw me having sex with those girls. Angus and I drove them back to Nesi's place but we had to drop them up the road as they said they were too drunk and needed to sober up. I spoke to Nesi and Jess the following day and the only recollection they had was drinking, some watermelon, and then going for a swim. I told them what they had done, they thought I was involved and couldn't believe I wasn't. I know you're hearing other stories but that is the honest truth. Those people who are saying they definitely saw it have shit dribbling out of their mouth. And you also have had memory loss from a hard session on my homebrew, so know that I'm not making shit up when I say that couldn't recall. As for McKay, the lies that she tells not just about this but everything in [P 4] life are phenomenal. I remember when we were "somewhat together", she had created a fake "Lisa Simpson" facebook account and was causing shit between another married couple down the road from her (that Brad Priggins). Anyway, they knew it was her, however she swore black and blue it wasn't. I even screamed at her to make sure she was telling the truth to me. Again "it wasn't me, i wouldn't break up a marriage, ra ra ra". So I backed her up, went down to their place, caused a massive "verbal" fight, said that she wouldn't lie to me, etc, etc. Truth came out after that she was in fact that person. "Haha, big joke, they deserved it." I could not understand how she could lie like that; to me, to her parents, to the police, to everyone. Anyway, what I'm saying is that I can't control who you wish to be friends with but just have a hard think about the people you want your kids to associate "being an adult" with. From the very start, she has done her best against you and I. First the whole "threesome", then you were pregnant and didn't know who the father was, I would be an abusive parent (her telling that Priggins) and had a criminal history to get Ollie taken off you, and now this latest crap, just ongoing and ongoing. She has a very extensive history of lies throughout her entire life and has purposely taken joy out of interfering with other marriages before. In my mind, she is not someone to be trusted, has nothing to offer you (support / guidance), really shouldn't be a role model for our kids and really what type of friend is that. I guess I just wish you would have a look at the bigger picture and longer term friendship of you and her because she will interfere with any relationship (friendship or other) that you may have in the future (she even got the shits about you and Steph). I just wish you'd realise that you have far better friends than her. I would have paid for you to take weekly trips to Kingaroy to see Katelyn because I could see that she was someone who cared for you and would offer both support and guidance throughout your whole life not just while it suited her. But moving on. The start was rough for us. First trying to get rich quick. Counterfeit is something I will definitely be advising our kids to stay very clear from. But we learn from our mistakes and moved to Windsor Park. That was a good time in our lives because we only had Ollie, Angus was working nights, the house was "our" first house, we decided on trying for a baby, we got engaged and other miscellaneous times. But when the pregnancy started turning for the worst, it did cut our "honeymoon" period short and times became very difficult both health wise for you but also arguments between us. I think that was the start of all this name calling and hurtful words that have tried both of us so much. When me first bought our house, I thought, finally, I have made it in life. This is the place I want to be. I have a house (yes, that needed work, but a house), a beautiful fiancée, a step son who couldn't be anything less but my own, and my own baby on its way. Wow, what a year could make. But then, the pregnancy went sour. You were back and forth from hospital, we didn't know whether Mikey would make it, your dad and I were having issues because he wanted to be as included as he was with Ollie (and I'm sorry, but I'm not the sort that would allow another man to play my part if I could help it, no matter who he was) and then that day. When you called to say your waters had broken, my heart sank. I dropped everything I was doing and ran out the door (I actually think 1 left all my computer, etc on without saving) All I could think about was you and our son. Those hours you spent with the Magnesium Sulphate broke my heart. I wished there was something more I could do but I couldn't and I knew how much pain you were in. Then that moment when the doctor came in and said it's time. You and I were trembling walking into [P 5] that operating room. I was so nervous and scared. Nothing can describe my feelings, so I can't imagine what you felt. Well it wasn't very long and they waved Mikey over the curtain and I don't know what I was expecting but certainly not that. You instantly went into shock, my blood pressure went though the roof. Blood started pouring out of my nose and I was taken from the room. Wow, the scariest moment hands down of my life. The next six months were so eventful. It felt like six years with Mikey in hospital. Not only was it so touch and go with Mikey, but you had major health issues, I had to return to work to keep money coming in, the house needed renovations before Mikey came home and I just remember thinking to myself back then that I couldn't maintain this pace for much longer. The day we brought Mikey home was, apart from becoming engaged, the only moment that I can say to that point I was happy beyond believe. Absolutely overwhelmed with joy. But because of Mikey's health, it was also a day of fear and anxiety with the home oxygen. I kept thinking to myself, can you and I really look after this child on oxygen. What happens if this, what happens if that... But you and I together made it through. Rather well I might say for having no medical training. But over those two years, you and I had a lot of adjusting to do. We are both Aries and being pig-headed (or as we like to say "strong willed"), we couldn't give in to each other. I had my issues with other women and whilst I didn't see it at the time, I do now. Ail my role models in life, including the Capewells, had pornography in their household similar to that of a Womens Day magazine I guess because of their relaxed nature or well I don't know, but pornography doesn't affect the way they feel. I have come to the view that to look at a good looking woman in the street is to simply respect the fact that they are more attractive than the average person but to perv on them or to look at nude women in magazines is disrespectful to your partner and whilst it may not be "cheating" it does break a boundary in a loving relationship. I guess this has been a big factor in our problems over the years but I just want you to know that the last time I looked at porn was after that fight we had in June last year. Since then, and even now after our split, I have not looked at porn, as tempting as it has been recently. Anyway getting back to children. A girl was always a dream I had. I don't know why but the name Rose always stuck in my mind and when you said you wanted to try for a girl, I was pleased but extremely fearful. I knew that Ollie had come early, Mikey had come early and we knew regardless that Rose was going to come early, just hopefully later than 30 weeks. I felt you were very forceful in your decision to try and that it was a case of an egg timer decision that had to be made asap or else we couldn't try again. We certainly were hasty but looking back, I don't think waiting any time would have made a difference. Hormones (especially the first trimester) did and still make you very moody and I know that our arguments kept turning for the worse and with each fight came more hurtful insults from both sides. In hindsight, we should have gone to relationship counselling then but hindsight is a lovely thing. Our wedding was the most beautiful moment of my life. We had planned everything together. Even your wedding dress (who does that). Simple yet elegant. And I think that explains how personalities to the core. I couldn't have asked for a more beautiful, elegant bride full of such charisma and passion. Words can't describe how I felt watching you walk up that aisle. My [P 6] speech, which I rehearsed and knew word for word, blurted out as if giving my first English oral. Our honeymoon, whilst had its moments was relaxing Just you, I and the world. We could have gone to the Maldives and done the Hollywood experience but I think you and I sitting back together, peacefully watching a bloody action movie, batman of all things, was a nice way to celebrate our marriage together. Just a couple of days and we missed our lovely two boys too much and had to return (as well as for my fucking job). But when things turned for the worse with the pregnancy, and you were back getting the Magnesium Sulphate, it was like reliving a nightmare. Back into that operating room. When they got me to walk around and see Rose under the plastic, I think a part of me stayed there. Seeing my little angel wrapped in cling wrap, doctors resuscitating her and nothing I could do to help. When I got the waiting room, I just broke, I was crying like I had never cried before (even with Mikey). Then you came out and even as worn out as you were, you still looked amazing. Just like Mikey, both of us entered the NICU together, as a team, to meet our newborn child. And just like Mikey, both of us made it through hospital with little Rose coming home. I know I made it an urgency about getting the snip, and I do hope you know it has nothing to do with you. I would have certainly had 10 more babies with you, but I couldn't do another micro-prem. After settling into our lives back home in Esk, I thought you and I would also settle back in to routine and our arguments would progressively get less. I guess with the continued stresses of work, money, family, and life in general, our coping mechanism that had kept us together through the premies was to take it out on each other, which seems absolutely crazy but we got through such extremely difficult times together. I guess in hindsight, this was another moment we should have called for help. That Christmas Party of 2013 was quite a happy one for me. I finally had my family, work was going "ok", and I was quite friendly with my work colleagues. I admit, I had too many drinks especially being on strong anti-depressants. The party was all but ended when you showed up, drinks had stopped and everybody was heading home but us stragglers. After a bit more of a yarn, I had full intentions on walking home but I can fully understand where you were coming from. You didn't want me being drunk around the children, plus you were ready to put them to bed, etc. I felt very disrespected when you stormed up to pick me up, gave me an earful as soon as I got in the car, and then continued when we got home. I know you thought I was going to drink the homebrew, but I certainly had no intentions of that but then you tipped it everywhere and again I felt very disrespected because not only had you hurt my feelings but you had spilt all my "hobby" everywhere which dripped down through the floorboards and just seemed like you didn't care about the house either. I know you said you always wanted me to lean on you for support and I guess I didn't show it as much as you'd have liked but you were my anchor in life. Without you and the kids, I felt like I'd have gone back even worse than that lonely person at Churchable. Suicide has always been a major weakness of mine and I know that you think it's when I don't get my way, but that's not the case. When I feel like I've lost control of my life and going backwards I have this major fear of turning out like my father. When I get into that mind frame, it's very dangerous for me. When you put the kids in the car and left, I should have known it was just a bad arguments but I panicked. I instantly went into that dark place where everything went [7] from bad to worse and felt like my only way to free myself and free the people I loved was to pass on from this life (a challenge I'm still facing because I still do feel that way but I'm working on it). If I had access to a gun that day, I would have used it, but a rope was available and so I contemplated it. There was a big part of me that wanted to live, and I guess that's why I never wrote a note but the overwhelming side of me spoke more sense at that time. I sat on that stool, leaned forward until my airways were restricted, still contemplating whether I should or not, until I finally went to sleep. After that I had no control and I didn't wake until the ambulance so I can't imagine the scene that I objected you and Oliver to and that is the biggest regret of my life. If I could turn back time, I would have gone for a walk up Highland Street, or called dad. Anything, but reality is that I didn't and I now have to live with my poor choices. I guess we never really got better after that. Money got tighter and we had another bright idea to free our lives up more. I wouldn't have to work so hard and therefore worry less. You and I would finally be able to have the things in life we ever wanted. Plans were set and everything seemed perfect. Our biggest problem is that we are too good at heart. Our guilt has stuck since the moment we concocted our bright idea. Looking back, if I could have seen the ramifications on our marriage, there is no way I would have considered it but again, I have to live with my choices. After that trip to Nanna & Pa's and that night thereafter, I feel so guilty, but not for what happened but for the way I let myself lose control. 25 years of torture from these people led me to do the unthinkable. I let myself lose control and it scared me. Not at what I did but the mere fact that the animal side got the better of me. I know for a fact that I can control myself every other time. But for those few minutes, I let my emotions control everything I did and the result could be seen. I was a very hurt man who had been hurt by the very person who should have loved me the most but caused me so much pain. I guess it was my guilt that caused me to be at the hospital so much. I was guilty because every time I entered that room, I saw what I had done. What my raw emotion had done and it hurt me so much. I guess it was the main reason I tried so hard to finish it then. To put the man that had taken the full brunt of my animal side out of pain. But he was too strong. A pig-headed bastard like me. But after he came out of that coma, I thought to myself that I would let him go on and lead a somewhat normal existence. I would even help him make a new start. Maybe I could even make him impress his mother. Wow, imagine if I could do that. But then the bitch got involved and got him out of hospital too early. I knew it wouldn't last. Once she found out she couldn't get money out of him then she was through with him. And the only person who was left to pick up the pieces was me. And how cruel of me to get you and the kids to have to deal with such a big burden because of me. The trip home from Beerwah made me realise one thing. Nothing I or anyone else in this world could ever make this man change. He spoke with such bitterness and anger about everything including his own mother. I thought maybe I could get him back to hospital, maybe get him to rent an apartment somewhere near the coast and leave him be. I could see him occasionally but wouldn't have to have too much to do with him. And then I realised how scared he made you. How could I ask this of my wife; the one person who gave me life and was the reason I wanted to live and succeed. And at that time, all I could give her was fear because of what I [P 8] had done. It wasn't your fear but mine that caused me to come up with the solution I did. In that trip down to NSW, I knew what was coming but spoke to dad as if everything were fine. That one trip revealed a lot to me about my father. But through everything, the most evident was that this shell was a good man gone too far bad. He hated everything about himself, everyone else and just the world. He told me that he just wished he died in hospital so he didn't have to be in pain (not physical) anymore. I had a choice that night. I could have quite easily packed up and brought him home but I wanted to ease his pain. But was that my place. I now know it wasn't but I felt at the time that I had caused every bit of his pain for the last 25 years so I carried through with my plan. As I said, I'm too good a person to be professional and let that demon be released again. I can't explain how scared that makes me and from that morning on, I vowed to never let myself lose control ever again. And to my dying day, no one will ever see that again. I certainly haven't handled things well thereon. I didn't want to traumatise you with my own issues about that night so thought that working and putting it at the back of my mind was better. Unfortunately I now see that you and the children have been hurt in that process and how selfish of me to do that to you guys. I wish I had better strategies to cope with things and I think with help from Rhonda, my new Psychiatrist and regardless of us, a relationship specialist, I think I will be able to improve myself dramatically. I am truly sorry I have hurt you through this whole disaster but I don't regret you and I. The only part I regret is the poor choices I have made. I know you don't understand why I work so hard, and through some recent reflections I believe it has to do with my fear of failure. And through my fear of failure, I guess I have tried to push you too hard, as well as the kids and this will be something I am going to focus on fixing because if not I know it will destroy my relationship with the kids. However, I will be staying with Somerset for a while because I am enjoying my new role at work and certainly see room for progression. Andrew is the best boss I've ever had and even with the last fortnight's events, has been of great support to me. On the weekend just went, he sent me a message saying that he was looking forward to seeing me (and also helping him with work) but aside from that he seems very genuine and I think a good friendship will come of this. The only other thing I want to touch on is my last attempt. I truly am sorry for putting you and the kids through it again. I wish I had waited until you had left so you didn't have to witness it. I am also sorry because this was the most serious I have ever been about wishing to pass on. The regret I have from hurting you over the last few years, the regret I have about losing control last year with those two events. I went into a major downhill spiral when you said you were leaving and all I could think was that I have driven away the only people who love me. I have caused pain to anyone who has ever come in contact with me and the only way I could release you and the kids was to release myself and pass on. I know you think it wasn't a serious attempt, but I spoke to the doctors and they have had people with a lot less die and that I obviously have a purpose here on Earth. After taking those pills, I slowly felt every sense float away. My vision and thoughts were last to go and I know those letters probably made no sense but the peace that I felt when I went to sleep was a feeling that I can't help but yearn for. I am seriously working on that and from this point on, I will make it known to anybody and everybody, that when I go, it will be from natural or other causes apart from my own. [P 10] I am so, so sorry that I have hurt you and I can now understand why you left. I am hoping that you have had time to read this and not just thrown it out as rubbish from your ex. This is from my heart and every word I have wrote comes from a good place. I hope that one day you can forgive me and maybe even work with me in getting back that feeling that used to take our breath away. I know you still have love for me as I do for you. Nothing you can do or say will change that for me. There will never be another woman because every word in my vows was spoken true to heart and forever is life for me. I know only time can heal the wounds I have caused but if you have any inclination that a flame for me can once again burn strong, than please give me a chance to help with the healing. I know this isn't going to be a tomorrow thing but I think in time, if you and I can start to reignite that flame, work on ourselves, and fall madly in love again, I honestly think we will have an all time enduring love that nothing will tear apart. From the bottom of my heart I am sorry for everything and I love you with my entire heart Candace. You are not just my partner, or my wife but you are my soul partner and I truly believe we only have one in the world. If you can please just let your guard down a little and work with me on this, I will prove to you how much of a better man I can become. I don't expect an answer anytime soon and you don't have to tell me directly. But if the time comes, I would give the world for you. With all my love, Micheal xxxooo Endnotes 1. The indictment asserts 7 April while the Crown Case Statement says "the evening of 6 April". 2. This is the allegation in the Crown Case Statement, Annexure B to the affidavit of Maurice Bell. The identity of the assailant is removed in the Crown Case Statement which became exhibit B on the application. 3. This extract is the text message as recorded in annexure D to Mr Ball's affidavit, including grammatical errors and apparently missing words. 4. I was told that there is to be an objection to the evidence of the undercover police officer but, for the purpose of this application, I assume that it is admissible. 5. R v Middis and Ors, unreported SC (NSW), 27 March 1991. 6. The language in quotation marks comes from the Crown Prosecutor's helpful written submissions. 7. See, for example, Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425 (McHugh J). 8. R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [88], a passage adopted by Adams J in Redman v R [2015] NSWCCA 110. 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. Decision last updated: 02 November 2017