Trevor TASCAS
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IN THE
SUPREME COURT OF VICTORIA
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Not Restricted
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AT GEELONG
CRIMINAL DIVISION
No. 1430 of 2009
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THE QUEEN
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V
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LAWRENCE ALEXANDER BUTLER
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JUDGE:
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KING J
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WHERE HELD:
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Geelong
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DATES OF HEARING:
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29, 30 September, 1, 2, 5, 6, 7, 8 October – Trial, Plea 30
November 2009
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DATE OF SENTENCE:
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15 December 2009
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HER HONOUR:
1 Lawrence Alexander Butler, you have been found guilty of the murder of Trevor
John Tascas at Whittington, between the 5th and 12th day of October 2005. You
pleaded not guilty and a trial was conducted. The matter was adjourned until 30
November 2009, at the request of your counsel, to enable a psychological report
to be prepared.
2 You are currently aged 46 years of age, having been born on 17 October 1963
and your last occupation was as a safety consultant / trainer and you were
residing at No.4 Thatcher Court in Whittington, the scene of the murder.
3 The deceased man, Trevor Tascas, was born in Geelong in January of 1978, the
only son of Pamela Tascas and Joe Van der Weel. He went by the name of both
Trevor Tascas and Trevor Van der Weel.
4 After leaving secondary school in Geelong, he went to Queensland for
approximately a year, before returning back to Victoria and living mainly in the
Geelong region. He began a relationship with a woman, by the name of Nicole
Riley and together, they moved into a residential property at 338 Anakie Road in
Norlane. That was a property owned by Trevor Tascas' uncle, Neil Grayson.
5 The circumstances under which they moved into the premises were, that the
premises were being purchased by Neil Grayson and he was making the repayments
on the mortgage. Trevor Tascas and Nicole Riley were to take over the repayments
and continue to pay off the property, which they did for a while. After a period
of time, Trevor Tascas became unemployed and the relationship with Nicole Riley
broke down and he ceased making repayments on the mortgage.
6 The first that Mr Grayson became aware of this failure to make the repayments
was, when he received notification from the bank that they intended to repossess
the home. After a considerable deal of argument, between the deceased and Mr
Grayson, his uncle reluctantly agreed to pay him a sum of around $30,000, for
him to vacate the premises and allow his uncle to resume occupation of the
premises, which was done ultimately, by his uncle's daughter.
7 It was around August of 2005 that he left those premises in Anakie Road and
moved into premises, occupied by you, at 4 Thatcher Court in Whittington. You
were residing there, in your mother's house, although your mother was not living
there with you at the time.
8 In 2005 you began a relationship with a woman by the name of Jodi Harris, also
known as Jodi Toulmin. Harris was her married name, having married Troy Harris
in approximately March of 2004. That relationship had ended and during 2005 she
commenced the relationship with you. You assisted Trevor Tascas to move into the
premises at Whittington. Other friends of his and Jodi Harris were also present
at the time of the moving.
9 The money paid to Trevor Tascas by his uncle, Neil Grayson, was paid in
different amounts, over the period of time up until his death. Trevor Tascas
moved into Thatcher Court, and at around the same time, he purchased a new motor
vehicle, a 1994 Holden Calais sedan, which was maroon and silver. He purchased
that from a man by the name of Abdul Allouche, and he was very attached to that
vehicle. He was even more attached to his dog, a Jack Russell Cross which went
by the name of "Lulu". Lulu, whilst originally belonging to Nicole Riley, was
constantly in his presence and moved with him to Thatcher Court.
10 The weekend of the 7th, 8th and 9th of October, being the Friday, Saturday
and Sunday in 2005, was the Bathurst weekend and on that weekend, on the
Saturday, Jodi Harris came to visit you. When she came in she was wanting to
have a shower, as she had stayed overnight at friends and had walked around to
your house. She entered the premises and said that she wished to use the shower.
You told her to wait a minute, which she did, but she eventually followed you
down into the bathroom, where she saw, a white hessian type bag, which was in
the shower recess, which you moved into the bath. She noticed that, there was
blood coloured fluid leaking from the base of the bag. There was one white
hessian type bag on the bottom and another had been placed over the top. They
were recycling bags, similar to the ones, later found in your garage. You
initially told Jodi Harris, that a mate had been fishing and the bag was full of
fish.
11 After showering and drying herself, she left the bathroom and walked up the
hallway, towards the bedroom that you shared with her when she was staying over.
12 In doing so, she walked past the bedroom of Trevor Tascas and noticed a
bloodstained sheet, half on and half off his bed. After dressing, she went
outside, out the front. She said, she had become concerned, with what she had
observed. You also came out the front of the premises and you spoke to her. Her
evidence of the conversation she had with you at this time, could be described
as a little vague and hesitant, but she indicated that you had said to her, that
there had been some sort of physical confrontation between you and the deceased
and that it related to his non-payment of rent.
13 The deceased, at that stage, owed you some weeks rent payment. She made a
comment to you along the line of "Is that Trevor in the bag?", to which you
responded, "Well if you think that, you can come and help", or words to that
effect. She then observed you, drag the bag out of the bathroom and into the
yard at the rear of the premises, put the bag into a large barrel, which was in
the backyard on the concrete. The barrel was similar to a 44 gallon barrel, with
rusted parts around the area of the base, with holes in those rusted parts.
14 She initially said, she saw you attempting to light the article in the drum,
by lighting some form of cloth, but later said, that she could not distinctly
remember that occurring. She also noticed, in the area leading out to the back,
a hacksaw that appeared to be bloodstained. She saw some smoke coming out of the
barrel and she left the premises not long after that.
15 A couple of days later, Ms Harris returned to the premises and helped you
empty the material, that was in the barrel into plastic bags. Her part was,
sweeping up fragments of ash and bone, that were around the base of the drum,
that had leaked or fallen out through the rusted holes in the base. She observed
you place, what appeared to be the material in the barrel, ash and bone type
material, into plastic bags. She saw you take the barrel and those plastic bags
and place them into the boot of Trevor Tascas' car, which was still at your
premises. Some of the other plastic bags, containing the ash, had been placed in
the garbage bin at your premises.
16 After the barrel and bags were placed in the boot, you took Ms Harris home
and then continued on, leaving her at her premises. You returned some hours
later and she saw no further evidence of the barrel.
17 Some short time after this had taken place, a matter of a couple of weeks,
you, together with Jodi Harris, drove to Queensland in the vehicle belonging to
Trevor Tascas. On the way to Queensland, near the border, the vehicle broke down
and a man, by the name of Wayne Patterson, came to assist you to get the car
working again. He got the car going and you travelled in that vehicle with Jodi
Harris, following Wayne Patterson to his premises in Queensland. You stayed
there for a matter of a day, or days and when you left, you gave the vehicle to
Wayne Patterson.
18 A matter of some weeks after you left, the vehicle, that you had given to
Wayne Patterson, was involved in a motor car collision and was written off. That
vehicle was the vehicle belonging to Trevor Tascas.
19 Subsequent to this, around July of 2006, Jodi Harris and her ex-husband, made
two withdrawals from the account of Trevor Tascas, in the sum total of,
approximately $11,000. That sum was, the amount that had been paid into Trevor
Tascas' account by way of his pension payments, from the time he was last seen
on 7 October 2005, until the date of the withdrawal, in August of 2006.
20 The dog, Lulu, the very close companion of Trevor Tascas, was given by you,
to a woman by the name of Nicole Donaghy, in late 2005, with you telling her
that Trevor Tascas had gone and would not be coming back, so she could keep the
dog. You also gave away and sold, his furniture.
21 It is clear from telephone records, bank account records, Medicare records
and many other checks made by the police, over the period that Trevor Tascas has
been missing, that Trevor Tascas, has not been sighted or used any service since
7 October 2005, that is, the Friday before the Bathurst weekend. You gave away
his dog, you sold his furniture, you gave away his car and, when interviewed by
police, you told them a number of lies, in relation to what happened to Trevor
Tascas, what happened to his furniture, what happened to his dog, his car, and
similar matters.
22 You did not give evidence in the trial, and the evidence of Jodi Harris
remains uncontradicted, in respect of her observations.
23 In relation to these matters, I am unable to say precisely how you murdered
Trevor Tascas, in that there were no witnesses to the matter. There was no
confession that was given in court and, the body of Trevor Tascas, I am
satisfied beyond a reasonable doubt, was burnt and disposed of, preventing any
forensic testing or examination of his remains.
24 It was submitted by your counsel, that I was not in a position to know
precisely the circumstances in which you murdered Trevor Tascas and I would have
to accept, that this was a murder at the lowest end of the spectrum, as a
result. I do not agree. For a murder to be at the lowest end, of the range of
murders available, there would have to be material that is put forward, that
mitigates the actual murder itself. As an example, the mercy killing of a person
in their nineties, who was but an hour away from death.
25 Equally, it cannot go at the highest end of the scale of murders, because I
am unaware of any particular aggravating circumstances, such as, by way of
example again, the murder of a child in a planned execution.
26 In my view, I must sentence you as though this is a murder, where there are
neither mitigating nor aggravating factors, to the actual killing itself. The
circumstances of the treatment and disposal of the body, post the murder are
matters of aggravation, in terms of penalty.
27 You have no prior convictions, but your counsel has pointed out to me that
you have a subsequent matter, which was the 9th September 2008, at the
Magistrates' Court at Melbourne, for a count of theft, for which you were fined
$250. That offence occurred in the company of Jodi Harris. That has no real
significance and will not have any impact upon the sentence I impose today.
28 In terms of your personal circumstances, you were the fourth child of your
father Victor, who was a widower with three children, prior to marrying your
mother, Louise. Those children range in age from four to ten years older than
you. Two years after your birth, your parents had another daughter, Katrina, who
is your sister.
29 Your father died in 2007 aged 80 years and you did not have a particularly
positive relationship with him. You believed he favoured his older children.
Your two older brothers, Rodney, 53 years of age and, Paul 56, you described as,
bullying you when you were younger.
30 You had a better relationship with your other half sister, Caroline, who is
50. Your sister, Katrina, is a single person and remains close to you.
31 You were educated at Drysdale Primary School and went to Queenscliff
Secondary College before completing your Trade School course at Geelong
Technical School, as a fitter and turner.
32 You had been actively involved with football and the scouts whilst growing up
and although not having a particularly good relationship with your father, you
said that you had a much older family friend, Francis Davies, who provided you
with that nurturing male role.
33 You began your apprenticeship in Year 11 and you won awards in your first two
years. By your third year you had started smoking cannabis and your results
dropped off. You completed your four year apprenticeship at Brinton's Carpet
Manufacturing business.
34 You met and married Danielle, a hairdresser and artist and together had three
children. Tegan, aged 22, Callum, aged 20 and Leilani, aged 18. Your eldest son
is a qualified chef, a second son is in the second year of his apprenticeship
and your daughter has just completed her VCE.
35 You left Brinton's Carpet Manufacturers when you were around 25 years of age
and went to Western Australia, on the basis that, you needed more money to
support your family.
36 You returned to Geelong and worked as a contract fitter and turner for a
period of time and then you became employed at Alcoa. You became a team leader
there and ultimately worked your way into the area of environmental health, that
is, Occupational Health and Safety.
37 After some 11 years at ALCOA, you moved into a business working in that area
of environmental health. You left that business after two years and when you
did, the business failed shortly thereafter.
38 This would have been the period 2000 to 2002 and since about 2003 you have
worked on an on again, off again, basis with protracted periods of time on
social security benefits.
39 After about 13 years in your relationship with your ex-wife Danielle, that
relationship began to fail, you drifted apart, had a trial separation and never
reconciled. She re-married approximately three years ago.
40 Although you have a reasonably good relationship with your children, there
have been times, when you have had very little to do with them. There was a
point in time in which you became quite heavily involved with amphetamine.
41 Unfortunately, on the plea, nothing was put to me about your drug use or its
impact on you, as a person, at the time of the offending, prior to the time of
the offending, or subsequent to the time of the offending.
42 The only real reference I have in respect to this is contained in the report
of Michael Crewdson, psychologist where it states, at p.9, "The manic drive gave
way to a deep depression, 'I just couldn't get out of bed. There wasn't a clean
dish in the place. I had no motivation and I just wanted to sleep. Eventually, I
saw a doctor, started on a round of anti-depressants.' He told me, he also
started on amphetamines and 'they probably lifted me more than anything.' He
said he worked 'sporadically as a sub-contractor, often supervising plant
shutdowns and other maintenance.' He had a short-term contract at Karratha in
Western Australia, but said that, he 'took up poker machines like another drug'.
He said that for a couple of years up to 2004 he, 'Just didn't remember things.
I know I spent a lot of time sitting in the pub till late at night.'"
43 I am aware that you had some fairly substantial involvement in amphetamines
and potentially other drugs, which was material excluded from the evidence of
Jodi Harris. As I have no further information provided, other than what is in
the report by Mr Crewdson, I am unable to act on the basis of any real knowledge
about your drug taking or drug involvement.
44 All of this is very concerning, when attempting to look at your prospects of
rehabilitation. The only material available to me indicates, that this killing
occurred in relation to your anger about the money owed to you by the deceased
man, for rent. Whilst I am unaware of the precise manner in which you killed
him, I am satisfied that subsequent to that killing, you cut the body into
pieces and that you burnt those pieces and subsequently removed and distributed
the ashes and bone, in a manner such that, they have not been found.
45 I have also had the advantage of observing the record of interview that you
conducted with the police. It is chilling to watch. It indicates quite clearly
that you were playing word games and attempting to outwit and, to a degree,
patronise, the officers that were interviewing you, over this very serious
matter. That interview does not assist you, in any way. It does not give me
great comfort for your future, in terms of your rehabilitation.
46 The report of Mr Michael Crewdson indicates a past history of polysubstance
abuse and one major depressive episode of some years ago, and that you are
currently experiencing significant levels of anxiety and depression, which are
reactive to your current situation. It would appear that you suffer from no
psychological problems. Despite having no prior convictions and achieving the
age that you have, before committing this offence, I am not very confident about
your chances of long-term rehabilitation. There is no real explanation as to why
you murdered Trevor Tascas and your behaviour, both immediately after the
killing, with the destruction of his body, and the contemptuous manner in which,
you used and dealt with his possessions, gives me real concerns as to your
ability to change or modify your behaviour.
47 Whilst, when looking at the lack of prior convictions, this behaviour would
appear to be out of character, it persisted for some time and without
explanation.
48 There are four Victim Impact Statements in this matter, one from Trevor
Tascas' mother, two from his sisters and one from his father. One of the
features of anguish that they all talk about is, the inability to feel that this
matter is over, as there is no body, no way of saying goodbye to Trevor. A
memorial service has been held, but has failed to give the closure that any form
of burial or interment would.
49 Nothing that this court does will ever replace the son and brother that these
people have lost, but I will take into account their statements when determining
the appropriate sentence.
50 As well as those factors personal to you, to which I have referred, I also
have to take into account general and specific deterrence, both of which, in my
view, have a great deal of relevance to this case. There is also the need to
impose a just and appropriate sentence and to ensure that the sentence imposed
is not crushing.
51 Taking into account all of those matters and the others to which I have
referred, you are convicted on the one count of murder and sentence to be
imprisoned for a period of 23 years.
52 I direct that you are to serve 20 years before becoming eligible for parole.
53 I declare the amount of time spent in pre-sentence detention is 524 days and
that such be noted in the records of the court.
54 I will make the retention order.
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IN THE SUPREME COURT OF
VICTORIA
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Not Restricted
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AT MELBOURNE
CRIMINAL DIVISION
S CR 2011 0178
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THE QUEEN
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v
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LAWRENCE ALEXANDER BUTLER
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Accused
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JUDGE:
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CROUCHER J
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WHERE HELD:
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Melbourne
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DATES OF HEARING:
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2-4, 9-13 & 16-19 September 2013
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DATE OF REASONS:
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13 December 2013
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HIS HONOUR:
Introduction
1 On 9 September 2013, a jury of twelve persons was empanelled to hear the trial
of Lawrence Alexander Butler on a charge of manslaughter. It was alleged that,
between 5 and 12 October 2005 at Whittington, a suburb of Geelong, Mr Butler
killed Trevor John Tascas, who is also known as Trevor John Vanderwel. Mr Butler
had pleaded not guilty to that charge.
2 On 19 September 2013, after the close of the Crown case, the jury was given a
Prasad invitation.[1] The
jury declined to hear the trial further and instead returned a verdict of not
guilty.
3 During the course of the trial, I made several rulings but deferred giving
reasons, or detailed reasons, for those rulings. I now provide those reasons.
4 Before doing so, I shall set out the procedural history of the matter and then
a very brief summary of the Crown case and the defence case.
Procedural history
5 This was a retrial. Mr Butler was originally charged with murder in July 2008.
In 2009, he was tried on and convicted of that charge before King J and a jury
in Geelong. On 15 December 2009, King J imposed a sentence of 23 years’
imprisonment with a nonparole period of 20 years.[2]
6 Mr Butler appealed against his conviction. On 20 December 2011, the Court of
Appeal (Ashley JA and Ross AJA; Maxwell P dissenting) allowed the appeal,
quashed the murder conviction, directed an acquittal on that count and directed
a retrial on manslaughter.[3] All
members of the Court rejected a ground of appeal complaining, in effect, that
the judge erred in leaving various items of alleged behaviour or lies as going
to consciousness of guilt of murder. However, Ashley JA and Ross AJA upheld a
ground complaining it was not open to the jury upon the whole of the evidence to
convict Mr Butler of murder.
7 Mr Butler was bailed by King J for his retrial. He had spent in the order of
three years and eight months in custody.
8 On 26 November 2012, the matter came on before Curtain J in Geelong for
retrial on a fresh indictment charging manslaughter. However, because of
complications concerning the Crown’s principal witness Jodi Harris (who is also
known as Jodi Toulmin), the matter was taken out of the list on 27 November
2012.
9 Prior to the commencement of the retrial before me, Lasry J granted an
application for a change of venue to Melbourne as a result of the substantial
publicity surrounding the matter around the time it was heard as a murder trial
in Geelong.
Crown case
10 Very briefly, the Crown case was that, around the weekend of the Bathurst car
races in October 2005, Mr Butler had argued with Mr Tascas over rent, caused his
death by assaulting him in circumstances that amounted to manslaughter by an
unlawful and dangerous act, and then dismembered, burned and disposed of the
body.
11 Crucial to the Crown case was the witness Jodi Harris. Ms Harris was in an
intermittent relationship with Mr Butler at the relevant time. As will be seen
below, following an application under s
38 of the Evidence
Act 2008 (Vic), the prosecutor elicited from Ms Harris that she made a
statement to police in July 2008 (nearly three years after the disappearance of
Mr Tascas) in which she said the following:
a) Around the weekend of the Bathurst car races, Ms Harris went to Mr Butler’s
house in Thatcher Court in Whittington to have a shower. Mr Tascas was living
there at the time.
b) In the bathroom, she saw a large white hessian bag in the bathtub. Something
red in colour was leaking out of the bag. Mr Butler told her that he and his
mate had been fishing and there were fish in the bag.
c) After Ms Harris had a shower, she walked past Mr Tascas’s room and noticed a
sheet with a huge amount of blood on it sitting half on his bed and half on the
floor. As she went to leave, Mr Butler told her: “You know what you’ve seen, you
are now part of this”.
d) When back inside the house, Mr Butler told her that Mr Tascas’s “rent hadn’t
been paid, they had an argument and [Mr Tascas] got knocked out” and that Mr
Tascas “fell and hit his head and got knocked out”.
e) Mr Butler asked her what she thought had happened. She then said, as a joke,
“Is [Mr Tascas] in the bag?” Mr Butler said, “If you think that, then you can
come and help me.” Mr Butler then went to the bathroom and dragged the large
hessian bag out into the back yard, lifted the bag into a barrel and attempted
to set fire to it. Later that day, Ms Harris saw the drum smouldering.
f) A few days later, Mr Butler asked Ms Harris to go out the back and help him
clean up. He put a lot of the contents of the barrel into plastic shopping bags.
He threw a couple of the bags into a wheelie bin and more bags were left in the
barrel. He gave her a dustpan and brush to clean up the ash. She noticed
fragments of bone in the ash – some were as big as a finger, others were
smaller. Mr Butler rolled the barrel across the yard and put it into the boot of
Mr Tascas’s car (a maroon Calais). He drove Ms Harris to her house, dropped her
there and said he would be back soon. Later, when he returned in Mr Tascas’s
car, the barrel and the bags were no longer in the boot.
12 Ms Harris said that these things were true when she told police.
13 Ms Harris also gave evidence that, some time later (probably around
mid-November 2005, given telephone and bank records), she and Mr Butler
travelled to Queensland in Mr Tascas’s car. The car was left in Queensland.
14 There was evidence that rumour had it that, around July 2005, Mr Tascas may
have sexually assaulted a 13-year-old girl (“CM”). CM was the daughter of a
woman with whom Mr Butler had a relationship of sorts. There was evidence that
Mr Butler was aware of the rumours and that, when told of them, he may have been
angry. The Crown relied on this as evidence of a motive for Mr Butler to assault
Mr Tascas.
15 There was evidence that Mr Tascas was very attached to his small dog named
Lulu. Nicole Donaghy gave evidence that, perhaps about two months after Mr
Tascas’s disappearance, Mr Butler indicated to her that he had been left in
effect to care for Lulu, that Mr Tascas had “taken off” and would not be coming
back, and that she could take Lulu if she wished, which she did.
16 Ms Harris gave evidence that, between July and August 2006, she and her
former husband Troy Harris stole about $11,000 from Mr Tascas’s bank account. Ms
Harris accepted that Mr Butler was not aware of this theft.
17 There was no forensic evidence discovered at Thatcher Court. Mr Tascas’s body
has never been found. Apart from some thin evidence of possible sightings, there
was evidence that Mr Tascas has not been seen or heard of since October 2005.
Other than the theft between July and August 2006 and his disability pension
going into the account on a regular basis, Mr Tascas’s bank account had not been
accessed since October 2005. Inquiries with other banks and agencies also
suggested Mr Tascas was deceased.
18 In his police interview, conducted in July 2008, Mr Butler agreed that he was
aware of the rumours about Mr Tascas being involved with a girl of 14 or 15, and
that he possibly spoke to Mr Tascas about them, but there was no admission that
he was angered by this information. He said Mr Tascas told him he was going to
the Bathurst car races but he had not seen him since. Mr Butler denied any
involvement in the death of Mr Tascas.
Defence case
19 During his defence response and through cross-examination, counsel for Mr
Butler made clear his client’s defence: First, he disputed that Mr Tascas was
dead. Secondly, if Mr Tascas was dead, the allegation that he was killed by Mr
Butler – which was denied – turned wholly upon Ms Harris, who could not be
believed. Amongst other things, Ms Harris conceded in cross-examination that,
today, she did not know if what she what she had told police she witnessed at
Thatcher Court was true and that she was simply unable to say whether those
events occurred. Thirdly, even if satisfied beyond reasonable doubt that what Ms
Harris told police actually occurred, it did not amount to evidence that Mr
Butler killed Mr Tascas. There was also other evidence in the case suggesting
that others killed Mr Tascas. Fourthly, even if satisfied beyond reasonable
doubt that what Ms Harris told police meant that Mr Butler had caused Mr
Tascas’s death, the killing did not amount to an unlawful and dangerous act.
Ruling No 1: Incriminating conduct – Disposal of remains – Use of car
Application by Crown
20 In pre-trial argument before me on 2 September 2013, the Director of Public
Prosecutions filed a notice (dated 1 September 2013) pursuant to s 23 of the
Jury Directions Act 2013 (Vic) (“the JD Act”) stating that “the prosecution
intends to adduce evidence of conduct that it proposes to rely on as evidence of
incriminating conduct”. The notice then set out the following pieces of alleged
conduct on which the Crown intended to rely:
(a) the accused dismembered and burnt the deceased’s body and then
disposed of his remains;
(b) the accused drove the deceased’s maroon Calais to Queensland and
disposed of same;
(c) the accused told investigators in his record of interview:
(i) that he did not know if the deceased had taken his vehicle with him
when he went to Bathurst;
(ii) that he did not know what had happened to the deceased’s dog Lulu;
(iii) that the deceased had made arrangements for the dog to be cared for in his
absence; and
(iv) that the deceased had told the accused that he intended to travel to
Bathurst.
Extension of time
21 Since Mr Butler had not been arraigned on this indictment before a jury, the
JD Act did not yet apply. However, as he was about to be arraigned shortly
during the jury empanelment process, from which time the JD Act would apply,[4] the
parties were content to proceed on the understanding that the matter should be
considered as if it were governed by the JD Act.
22 Section 3(1) of the JD Act provides that the notice must be filed and served
at least 28 days before the day on which the trial is listed to commence. An
earlier version of the notice was filed and served on 27 August 2013. The new
version was filed and served on 2 September 2013, the day the trial was due to
commence. Thus, the notice was filed and served late.
23 Section 7(1) of the JD Act allows the court by order to extend or abridge any
time fixed by or under the JD Act if the court considers that it is in the
interests of justice to do so.
24 For reasons that follow, I was of the view that it was in the interests of
justice to extend or abridge the time for the filing of the notice. First, the
pieces of allegedly incriminating conduct relied on were, in substance, the same
as those relied on at the first trial as evincing a consciousness of guilt and
which were the subject of discussion in the judgment of the Court of Appeal.
Thus, there was nothing new or surprising in the submissions being put on behalf
of the Crown. Secondly, the evidence, if admissible as incriminating conduct,
was likely to be important to the Crown case.
25 I decided not to make the order extending or abridging time until after Mr
Butler was arraigned in the presence of the jury panel so that the JD Act would
in fact be applicable at that time.[5]
Counsel’s arguments
26 As to the merits of the application, Mr Bourke, who appeared for the Crown,
relied on inter alia the reasons of the Court of Appeal in rejecting the
argument in that Court that the same behaviour could not amount to consciousness
of guilt of murder. He also referred to R v Rice [1996] 2 VR 406 and R v
Ciantar [2006]
VSCA 263; (2006)
16 VR 26.
27 Mr Desmond, who appeared for the accused, did not argue that any of this
evidence was inadmissible per se. Rather, his submission was that, in respect of
items (a) and (b) in the notice, the behaviour relied on could not be used as
incriminating conduct and, in respect of items (c)(i)-(iv), they did not amount
to lies and, even if they did, they could not be used as incriminating conduct.
28 On 3 September 2013, I indicated that, at some point after arraignment in the
presence of the jury panel, I would be ruling as follows (which rulings were in
fact made in the absence of the jury after empanelment and arraignment):
Item (a): Alleged dismembering, burning and disposal of body
29 First, as to item (a) in the notice, where the conduct relied on was that Mr
Butler dismembered and burnt Mr Tascas’s body and then disposed of his remains,
in my view, subject to one exception, it was open to leave that alleged conduct
as evidence of incriminating conduct.
30 The evidence for this conduct was expected to come entirely from Ms Harris
and from inferences to be drawn from her evidence. If the substance of her
anticipated version of events were accepted, it would be open to the jury to
find that Mr Butler placed Mr Tascas’s body in a drum, burnt it and then
disposed of the remains (which, hereafter, I shall refer to collectively as the
disposal of the body). Whether it would be open to infer that the body had been
dismembered was not so clear. In any event, if the jury concluded that Mr Butler
had disposed of the body, it would be open to use that evidence as evidence that
he believed that he had committed the offence of manslaughter, or an element of
it, and that the only reasonable explanation of the conduct was that Mr Butler
held that belief.
31 I formed the view that the disposal of the body is behaviour capable of being
regarded as so disproportionate to an accidental or otherwise innocent killing,
or to lack of involvement at all in a killing, that it was open to leave the
alleged behaviour as incriminating conduct. In R v Rice [1996] 2 VR 406 at 412,
Brooking JA, when dealing with a case in which a person had concealed a body in
a lime-filled drum and told lies regarding the deceased’s movements and plans,
asked rhetorically, “Why should a man take such a risk if the explanation for
her death was an innocent one?” Whilst there were numerous good arguments to be
put on behalf of Mr Butler that might explain that alleged behaviour in a manner
consistent with innocence of manslaughter, including those stemming from the
alleged admission to Ms Harris of an account consistent with accident or the
commission of some lesser offence, none of those arguments was so compelling as
to render the evidence “intractably neutral”[6] or
otherwise inadmissible as incriminating conduct. Rather, these were all matters
for a properly directed jury to consider in determining whether the evidence, if
accepted, did disclose incriminating conduct.
32 In coming to this view, I also took into account that the evidence of
disposal of the body by the accused was disputed, was not supported by any
forensic evidence whatsoever and instead was to come solely from a combination
of direct evidence from Ms Harris and inferences to be drawn from her evidence,
in circumstances where Ms Harris was a witness about whom, even at that stage of
the trial, it was obvious there would have to be some form of unreliable
evidence direction.
33 Finally, as indicated above, the Court of Appeal rejected an argument that
this evidence, and the other pieces of evidence relied on, should not have been
left as going to consciousness of guilt of murder.[7] Whilst
consciousness of guilt of murder (by an intention to kill or cause really
serious injury) and consciousness of guilt of manslaughter (by an unlawful and
dangerous act) are different things, not least because the former crime involves
a purely subjective intention whereas the latter involves a mixture of a lesser
subjective intention (in this case, the intention to commit some sort of
assault) and an objective awareness (as to dangerousness), nevertheless,
generally speaking, and in this case, the greater will include the lesser, and I
was satisfied that the behaviour relied on could go to a consciousness of guilt
of manslaughter. Moreover, it is at least implicit in the Court of Appeal’s
reasons that the same behaviour (as well as the driving and disposal of the car
and the alleged lies) could go to a consciousness of guilt of manslaughter.
34 I should add that, at least for the purposes of this case, I considered that
there was no meaningful difference between the common law concept of
consciousness of guilt or post-offence conduct and the JD Act concept of
incriminating conduct.
Item (b): Driving Mr Tascas’s car to Queensland and disposing of same
35 Secondly, as to item (b) in the notice, where the conduct relied on was that
Mr Butler drove Mr Tascas’s car to Queensland and disposed of the same, again,
in my view, it was open to leave that alleged conduct as evidence of
incriminating conduct.
36 Again, the evidence for that conduct was expected to come principally from Ms
Harris. While this evidence was not disputed, Mr Desmond foreshadowed that there
may be evidence elicited from Ms Harris and others that showed the trip to
Queensland was taken at Ms Harris’s instigation and was drug-related. However, I
reasoned that that would not necessarily alter the view that, if the jury
accepted that Mr Tascas’s car was driven by Mr Butler to Queensland and disposed
of, it would be open to the jury to use that evidence, particularly in
combination with the evidence of disposal of the body, as evidence that Mr
Butler believed that he had committed the offence of manslaughter, or an element
of it, and that the only reasonable explanation for the conduct was that Mr
Butler held that belief.
37 Whilst this behaviour was not as extreme – and therefore, in my view, not as
probative – as the alleged disposal of Mr Tascas’s body, I formed the view that
it was open to the Crown to argue, and for a jury to reason, that only a person
who had unlawfully caused the death of Mr Tascas would use the car in this
fashion.
Items (c)(i)-(iv): Alleged lies in record of interview
38 The third set of items relied on in the notice was a series of alleged lies
told by Mr Butler to police in his record of interview. The interview was
conducted in July 2008, nearly three years after the alleged disappearance of Mr
Tascas.
39 Whilst it was argued in the Court of Appeal that the alleged lies (and other
alleged post-offence conduct) should not have been left as going to
consciousness of guilt of murder, it does not appear to have been argued that it
was not open to conclude that the alleged lies were in fact lies.
40 As to item (c)(iv) in the notice (namely, that Mr Tascas had told Mr Butler
he intended to travel to Bathurst), Mr Bourke did not pursue this item. Instead,
he conceded at the outset that the evidence could not exclude the reasonable
possibility that Mr Tascas did in fact say such a thing to Mr Butler at some
relevant point. Accordingly, I did not need to rule on this particular item.
41 As to items (c)(i), (ii) and (iii) in the notice, I decided that I would
prefer to hear the evidence in the trial before ruling on whether these alleged
lies were capable of being lies and, if so, whether they were capable of
amounting to incriminating conduct. In that regard, for example, Mr Bourke
indicated he intended to ask Ms Harris questions about the dog that had not been
asked at the previous trial or the committal hearing. It was thought that other
witnesses might also have new evidence relevant to this issue. Thus, I deferred
until the close of the Crown case any further argument and ruling on that issue.
I shall deal with that matter in Ruling No 6, below.
Ruling No 2: Discharge of jury because of alleged irregularity in empanelment
Introduction
42 Very soon after the first jury was empanelled on 3 September 2013, and before
opening addresses, Mr Desmond made an application that the jury be discharged
without verdict on the basis of alleged irregularities in the manner in which
some jurors were administered the oath. Mr Bourke did not formally concede that
the application should succeed, but he indicated that he was troubled about the
matter and that a cautious approach – i.e. one favouring discharge – might be
wise, particularly given that it was so early in the piece. After a good deal of
hesitation, I granted the application and discharged the jury without verdict.
Background
43 During the empanelment process, the twelve jurors who ultimately formed the
first jury were dealt with in three different manners: first, there were those
who were sworn; second, there was one juror who made a promise; and, third,
there were some who took affirmations.
44 After the twelve jurors were selected, each was identified by my associate
and asked to stand. I explained that jurors could take an oath by swearing or
promising or they could make an affirmation. My associate then said, “Any juror
wishing to take an oath, please raise the Bible in your right hand”. She then
said, “Any juror wishing to make a promise, please be seated whilst the oath is
taken [and] any juror wishing to make an affirmation, please be seated whilst
the oath is taken”.
45 Each of those jurors who remained standing did in fact raise the Bible in his
or her right hand. The oath was administered to them as a group, as follows:
“You and each of you swear by Almighty God that you will faithfully and
impartially try the issues between the Crown and [the accused] in relation to
all the charges brought against [the accused] in this trial and give a true
verdict according to the evidence”. Each was asked to respond, and did respond,
in turn: “I swear by Almighty God to do so”.
46 The juror who took an oath by promising was then dealt with separately. He
did not have a Bible in his hand. He was not asked by my associate or me whether
or not he wished to have a Bible in his hand. The oath administered to him read:
“You promise by Almighty God that you will faithfully and impartially try the
issues between the Crown and [the accused] in relation to all the charges
brought against [the accused] in this trial and give a true verdict according to
the evidence”. He was asked to respond, and did respond: “I promise by Almighty
God to do so”.
47 Those taking an affirmation were dealt with next. The affirmation
administered to them read: “You and each of you solemnly and sincerely declare
and affirm that you will faithfully and impartially try the issues between the
Crown and [the accused] in relation to all charges brought against [the accused]
in this trial and give a true verdict according to the evidence”. Each was asked
to respond, and did respond, in turn: “I do so declare and affirm”.
48 During Mr Desmond’s application, my tipstaff advised to the effect that, as
jurors made their way to the jury box during empanelment, as well as taking
their effects or the like, he asked whether they wished to be sworn, make a
promise or make an affirmation and whether anyone wanted to have a Bible. Those
who indicated they wanted to be sworn took a Bible. This information was
conveyed to the parties during the application.
Arguments of counsel
49 As I understood Mr Desmond, he submitted in effect that there were four
faults with that process. The first argument was that, when those who swore an
oath were asked, “Any juror wishing to take the oath, please raise the Bible in
your right hand”, they were not given a choice as to whether they did or did not
hold a Bible at the time of taking that oath.
50 The second argument was that the juror who made a promise was not asked
whether he wished to have a Bible, and accordingly was not given the option of
having a Bible at the time of taking that oath.
51 The third argument was that the jurors who swore and the juror who promised
should have been dealt with jointly as one group, not separately as two groups.
He said that that is the usual (although not invariable) practice in the County
Court. Mr Bourke said that that was his experience too.
52 The fourth argument, which was not pressed as firmly, was that, in so far as
my tipstaff spoke to jurors about whether they wished to swear, promise or
affirm and have a Bible or not, whilst it was something that happened in court,
it was not something that either he or his client was aware was occurring at the
time and therefore could not be said to have occurred in open court.
53 Mr Desmond also submitted that, for any or all of those reasons, there was a
breach of the relevant legislation; and that there was, in consequence, a high
degree of need to discharge the jury. He added that breaches of provisions
concerning the administering or constitution of juries were sometimes fatal to
convictions on appeal. Finally, he submitted that, since this was the very
earliest stage of the trial, the level of inconvenience in discharging a jury
was at its lowest point, such that, if there were any doubt about the matter,
the balance of convenience favoured discharging the jury.
54 As indicated above, Mr Bourke did not formally concede that the application
should succeed, but he suggested that a cautious approach – i.e. one favouring
discharge – might be wise, particularly given that it was so early in the piece.
Put another way, as Mr Bourke did, were this the second or third week of a
three-week trial, a judge might take a different view of the application.
Initial thoughts
55 My initial reaction to all of this was that it was a very ambitious
application. At the time I discharged the jury, I was not confident that the
application had merit. But I was troubled at the idea that, if I were wrong
about the matter, a trial might be conducted with an unlawfully constituted
jury, which would be unfair for both Mr Butler and the Crown and potentially a
great waste of time and resources. As a result of my own uncertainty and because
it was so early on in the piece, I found it easier to be persuaded that the
application should succeed.
The better view
56 On reflection, whilst I should have conducted the process differently in
order to conform more precisely with the mandates of s 42 and Schedule 3 of the Juries
Act 2000 (Vic) (“the Juries
Act”), and indeed I have since altered the way in which I conduct that
process, I think I was wrong to discharge the jury.[8] Before
explaining my reasons for those conclusions, I shall set out some of the
relevant provisions:
Section 42 and Schedule 3 of the Juries
Act 2000 (Vic)
57 Section
42 of the Juries
Act provides that, “[o]n being empanelled, jurors must be sworn in open
court in the form of Schedule 3 applicable to the case”. Schedule 3 provides as
follows:
SWEARING OF JURORS ON
EMPANELMENT
Oaths by jurors—Criminal
Trial
You (or, if more than one person takes the oath,
you and each of you) swear (or the person
taking the oath may promise) by Almighty God (or
the person may name a god recognized by his or her religion) that you will
faithfully and impartially try the issues between the Crown and [name
of accused] in relation to all charges brought against [name
of accused] in this trial and give a true verdict according to the evidence.
Oaths by jurors—Civil Trial
You (or, if more than one person takes the oath,
you and each of you) swear (or the person
taking the oath may promise) by Almighty God (or
the person may name a god recognized by his or her religion) that you will
faithfully and impartially try the issues and assess the damages in the cause
brought before you for trial or inquiry and give a true verdict according to the
evidence.
Affirmations by
jurors—Criminal Trial
You (or, if more than one person affirms, you
and each of you) solemnly and sincerely declare and affirm that you will
faithfully and impartially try the issues between the Crown and [name
of accused] in relation to all charges brought against [name
of accused] in this trial and give a true verdict according to the evidence.
Affirmations by jurors—Civil
Trial
You (or, if more than one person affirms, you
and each of you) solemnly and sincerely declare and affirm that you will
faithfully and impartially try the issues and assess the damages in the cause
brought before you for trial or inquiry and give a true verdict according to the
evidence.
Division 2 of Part
IV of the Evidence
(Miscellaneous Provisions) Act 1958 (Vic)
58 Division 2 of Part
IV of the Evidence
(Miscellaneous Provisions) Act 1958 (Vic) (“the EMP Act”) deals with oaths
and affirmations. Section 100 provides that Division 2 does not apply to an oath
or an affirmation made by a witness in a proceeding or by a person acting as an
interpreter in a proceeding to which the Evidence
Act 2008 (Vic) (“the Evidence
Act”) applies. No part of Division 2 is expressed to apply to jurors taking
oaths or affirmations. On the other hand, apart from the limitation imposed by s
100, the provisions of Division 2 appear to be of general application and
may be seen as supplementing the relevant aspects of the Juries
Act, even though the latter Act has its own particular provisions concerning
the taking of oaths or affirmations by jurors upon empanelment. It will be seen
that there is, in any event, a degree of commonality between the provisions
concerning, and prescribed forms of, oaths and affirmations in the Juries
Act and the EMP Act (as well as the Evidence
Act).
59 Section 101(1) of the EMP Act provides that a person may take an oath or make
an affirmation in accordance with the appropriate form set out in Part 1 of the
Third Schedule or in a similar form. Part 1 of the Third Schedule provides as
follows:
PART 1—FORM OF OATH AND
AFFIRMATION
Form of oath
I swear (or the person taking the oath may promise) by Almighty God (or the
person may name a god recognised by his or her religion) that (followed by the
words of the oath prescribed or allowed by law).
Form of affirmation
I solemnly and sincerely declare and affirm that (followed by the words of the
oath prescribed or allowed by law).
60 Section 101(3) provides
that an oath or affirmation may be administered to and taken, or made, by two or
more persons at the same time.
61 Section 102(1) provides that a person who is required to take an oath may
choose whether to take an oath or to make an affirmation. Section 102(2)
provides that the officer administering the oath or affirmation is to inform the
person that he or she has this choice, unless the officer is satisfied that the
person has already been informed or knows that he or she has the choice.
62 Section 103(1) provides that it is not necessary that a religious text be
used in taking an oath. Section 103(2) provides that an oath is effective even
if the person who took it did not have a religious belief or did not have a
religious belief of a particular kind.
63 Whilst the form of oath in Part 1 of the Third Schedule to the EMP Act is
essentially the same as the form of oath in Schedule 3 of the Juries
Act, there are no express equivalents of ss 101, 102 or 103 of the EMP Act
in the Juries
Act.
Division 2 of Part
2.1 of Chapter 2 of the Evidence
Act 2008 (Vic)
64 Division 2 of Part
2.1 of Chapter 2 of the Evidence
Act deals with oaths and affirmations of witnesses and interpreters in
proceedings.
65 Sections
21(4) and 22(2)
provide in effect that, where a witness (or an interpreter) in a proceeding is
required to take an oath or make an affirmation, the witness (or interpreter) is
to take the oath, or make the affirmation, in accordance with the appropriate
form in Schedule 1 or in a similar form. Schedule 1 provides as follows:
OATHS AND AFFIRMATIONS
Sections 21(4) and 22(2)
Oaths by witnesses
I swear (or the person taking the oath may
promise) by Almighty God (or the person may
name a god recognised by his or her religion) that the evidence I shall give
will be the truth, the whole truth and nothing but the truth.
Oaths by interpreters
I swear (or the person taking the oath may
promise) by Almighty God (or the person may
name a god recognised by his or her religion) that I will well and truly
interpret the evidence that will be given and do all other matters and things
that are required of me in this case to the best of my ability.
Affirmations by witnesses
I solemnly and sincerely declare and affirm that the evidence I shall give will
be the truth, the whole truth and nothing but the truth.
Affirmations by interpreters
I solemnly and sincerely declare and affirm that I will well and truly interpret
the evidence that will be given and do all other matters and things that are
required of me in this case to the best of my ability.
66 Section
23(1) provides that a person who is to be a witness or act as an interpreter
in a proceeding may choose whether to take an oath or to make an affirmation. Section
23(2) provides that the court is to inform the person that he or she has
this choice, unless the court is satisfied that the person has already been
informed or knows that he or she has the choice.
67 Section
24(1) provides that it is not necessary that a religious text be used in
taking an oath. Section
24(2) provides that an oath is effective for the purposes of Division 2 even
if the person who took it did not have a religious belief or did not have a
religious belief of a particular kind or did not understand the nature and
consequences of the oath.
68 It will be noted that ss
23 and 24 of
the Evidence
Act are in similar terms to ss 102 and 103 of the EMP Act and that the form
of oath in Schedule 1 is essentially the same as the forms of oath in the EMP
Act and the Juries
Act.
What is required when administering oaths or affirmations to jurors?
69 There are several things to note about s
42 and Schedule 3 of the Juries
Act and the provisions of Division 2 of Part
IV of the EMP Act and Part 1 of the Third Schedule.
70 First, the use of the word “must” in s 42 connotes that the requirements set
out in Schedule 3 are mandatory.
71 Secondly, my reading of Schedule 3 is that it allows, but does not require,
that, if two or more jurors take an oath, the oath may be administered to them
at the same time. The same is true of jurors making an affirmation. To the
extent that s 101(3) of the EMP Act applies to jurors, the same point is made
plain, as the permissive “may” is used, not the mandatory “must”. Obviously, it
is more efficient to do it this way, if practicable.
72 Thirdly, Schedule 3, read with s 42, provides that a juror taking an oath
must swear or promise by Almighty God or by a god recognised by his or her
religion. Thus, a juror could swear by Almighty God, promise by Almighty God,
swear by a god recognised by his or her religion or promise by a god recognised
by his or her religion. Part 1 of the Third Schedule of the EMP Act allows for
the same four possible combinations. (The same is true of Schedule 1 of the Evidence
Act.)
73 Fourthly, it appears that there is no provision that expressly provides for
the taking of an oath by the making of a promise (as opposed to swearing).
Rather, this option derives from the terms of Schedule 3 in the Juries
Act, Part
1 of the Third Schedule to the EMP Act and Schedule 1 of the Evidence
Act. Nor is there any provision which expressly recognises three separate
categories – oaths, promises and affirmations. Rather, as appears from those
schedules, there are two categories – oaths and affirmations; and to swear or
promise (by Almighty God or a god recognised by the juror’s religion) are simply
alternative ways of taking an oath.
74 Fifthly, nothing in Schedule 3 requires that a religious text be used when
taking an oath. Section 103(1) of the EMP Act (and s
24 of the Evidence
Act) make the same point by expressly stating that it is not necessary that
a religious text be used in taking an oath. Equally, it would not be
inconsistent with either the Juries
Act or the EMP Act (or the Evidence
Act) that a juror be provided with a religious text to hold or have nearby
when taking an oath, whether it be the Bible, the Koran or any other religious
text.
75 Thus, in light of the foregoing, and with the concurrence of the parties, for
the next jury, I altered the way in which jurors were administered oaths or
affirmations upon empanelment. In particular, before my associate administered
an oath or affirmation to them, I told the jurors that they could take an oath
or make an affirmation and that each is equally binding. I then said:
If you wish to take an oath, you may do so by swearing, or promising, by
Almighty God, or by a god recognised by your religion, and you may do so with or
without a Bible or other religious text. If you wish to have a Bible or other
religious text when taking an oath, please indicate now or when asked by my
associate.
76 I explained that those taking an oath would have it administered to them in a
particular form, whereupon I read from the oath in Schedule 3 (which was
probably unnecessary). I then explained that my associate would then ask each of
them to respond, “I swear, or promise, by Almighty God to do so”, but that it
was up to each individual juror in responding, where appropriate, to choose
either the word “swear” or the word “promise” and either the words “Almighty
God” or the name of a god recognised by the juror’s religion.[9]
77 I then explained the equivalent process for those affirming.
78 I asked jurors if they wanted me to repeat the information. None took up that
invitation.
79 My associate then went through the foreshadowed process. Bibles were handed
to those who requested them. No one requested another religious text. The
process worked. That said, not surprisingly, at least one juror (the first)
taking an oath was a little unsure as to whether to say “swear and promise”
rather than either “swear” or “promise”, but that was sorted out easily.
80 There are of course other (and, no doubt, preferable) ways to undertake this
process and still comply with the relevant provisions. My method was a tad
long-winded and cumbersome, but was consistent with the submissions of the
parties and with the relevant provisions.
Why I was wrong to discharge the jury
81 I now turn to deal with counsel’s submissions.
82 First, contrary to Mr Desmond’s submission, the use of the words “Any juror
wishing to take the oath, please raise the Bible in your right hand” did not
deprive jurors of a choice as to whether they did or did not hold a Bible at the
time of taking that oath. (In this context, “tak[ing] the oath” meant those
swearing.) Similarly, the juror who took an oath by making a promise was not
deprived of the option of having a Bible at the time of taking that oath. All
jurors were given the option, through my tipstaff, of having a Bible if they
wished. Those who took a Bible from my tipstaff ended up being those who raised
the Bible when asked to do so. The juror who took the oath by making a promise
had not taken up that option when it was offered to him. I detected nothing
either in those who took up the Bible, or in the one who did not, that suggested
they were being deprived of a choice in this regard.
83 Secondly, the complaint that the jurors who swore and the juror who promised
should have been dealt with jointly as one group, and not separately as two
groups, should be rejected. It may well be the common practice in the County
Court. Plainly, it is more efficient to do it that way. Further, as I have
indicated above, that is that way in which I did so with the later jury
(although none of those jurors made a promise; all swore). But, as I also
indicated above, my reading of Schedule 3 is that it allows, but does not
require, that, if more than one juror takes an oath, the oath may be
administered to them at the same time. To the extent that s 101(3) of the EMP
Act applies to jurors, this also makes it plain, as the permissive “may” is
used, not the mandatory “must”. Thus, despite my initial concern about the
point, I do not see any error in administering oaths separately or jointly to
jurors. The same is true of administering affirmations.
84 Thirdly, whilst I accept it would have been preferable if the possibility of
having a Bible (or other religious texts) had been explained to the jurors by me
or my associate within the hearing of the parties rather than by my tipstaff
beyond the hearing of the parties, I do not accept that the fact that some
information was conveyed by my tipstaff without the knowledge of the parties at
that particular time deprived the process of its open character. The matter was
brought to the parties’ attention almost immediately. The minute the matter was
raised, counsel accepted that what was conveyed to me and then to the parties
was accurately conveyed. As also indicated above, it is not necessary that a
religious text be used in taking an oath but a religious text may be used.
Accordingly, being offered the opportunity to take a religious text did not, in
the circumstances, involve a breach of the provisions or otherwise deprive the
process of its validity.
85 Finally, I am satisfied that those who took an oath – whether by swearing or
promising to Almighty God, with or without a Bible – did so in a free exercise
of choice and with an understanding of the solemnity of the occasion. The same
is true of those who made an affirmation. If there was any breach of the
provisions, it was not such as to render the jury wrongly constituted; nor would
there have been any miscarriage of justice in carrying on with the trial at that
point.
86 Accordingly, I was wrong to discharge the jury on the basis of the arguments
put to me.[10]
Ruling No 3: Request for release of transcript
87 At the commencement of the trial, there was a request by a media organisation
to be provided with an electronic copy of the transcript in this trial on a
daily basis. On 3 September 2013, I granted the application but also made a
suppression order to ensure that there was no reporting of sensitive matters
that were not in evidence about the previous history of the matter. My reasons
for making those orders follow:
88 As I understand it, requests of this type are commonly made and commonly
acceded to in this Court. It seems to be a sensible practice. It has the virtues
of allowing journalists to check their own record of the trial (if they have
been in court) against the transcript, of ensuring that they have as accurate a
record of the evidence as is reasonably possible short of hearing the evidence
themselves (if they have not been in court) and of relieving them of the need to
be in court for every minute of a trial in order to report on it.
89 There might be occasions on which release of an electronic copy of the
transcript would not be appropriate or even authorised. For example, it might be
inappropriate to release such transcript where there is a dispute between the
parties about the accuracy of the transcript on an important piece of evidence.
The transcript of evidence that is heard in closed court might not be released
for the same reasons that the court was closed in the first place. Neither of
those situations applied here.
90 However, there were other important considerations in this case. As indicated
above, Mr Butler was previously tried on, and convicted of, a count of murder.
That conviction was set aside on appeal and a retrial was directed on
manslaughter, not murder. Further, the principal Crown witness in that previous
trial was, and in this trial was about to be, Jodi Harris. Ms Harris pleaded
guilty to being an accessory after the fact to manslaughter. She received a
suspended gaol sentence for that offence but was subsequently dealt with for
breaching that suspended sentence as well. Recently, Ms Harris’s appeal
concerning her sentence was heard and determined in the Court of Appeal.
91 The parties agreed, and I accepted, that, unless the matter were raised
during evidence in the retrial, the jury should not be made aware of the fact
that Mr Butler was previously tried on and convicted of a count of murder.
92 With that in mind, I requested that the sentences and judgments in Mr Butler
and Ms Harris’s previous proceedings temporarily be taken down from legal
databases such as Austlii, which I believe occurred.
93 Another relevant factor was that there was substantial publicity of this
matter around the time it was heard as a murder trial in Geelong. As a result of
that publicity, as indicated above, another Judge of this Court acceded to an
application that the venue of the retrial on manslaughter be changed from
Geelong to Melbourne.
94 Mr Desmond was concerned that releasing an electronic copy of the transcript
in this trial on a daily basis would risk further publicity and in turn risk a
juror or jurors inadvertently finding out that Mr Butler was previously tried on
and convicted of a count of murder. Jurors were instructed not search databases
for information concerning this matter and to keep their own counsel about the
case. But there is always some risk that jurors will learn of information from
outside the court room about previous proceedings, including through the media.
95 I formed the view that that risk could be ameliorated by the making of a
suppression order pursuant to s
18 of the Supreme
Court Act 1986 (Vic) on the basis spelt out in s
19(b), namely that it was necessary to do so in order not to prejudice the
administration of justice.
96 Accordingly, pursuant to s
18 of the Supreme
Court Act 1986 (Vic), until verdict in the trial, I prohibited publication
(a) of the fact that the accused was previously tried on, convicted of and
sentenced for a count of murder, (b) of the fact that that conviction was set
aside on appeal and (c) of any of the contents of the previous committal
hearings, trials, plea hearings, sentences or appeals concerning the accused and
Jodi Harris (aka Jodi Toulmin), except to the extent that such information was
disclosed in evidence during the running of the trial.
97 Once that order was made, I allowed the release of the electronic transcript
of the trial each day to the media organisation that requested it.
Ruling No 4: Crown application to cross-examine own witness
98 During Ms Harris’s evidence-in-chief, after giving evidence of general
matters including identifying photographs of Mr Butler’s house in Thatcher
Court, she was asked whether something unusual happened one day at the house
when she went there to have a shower. (This, of course, was the lead-in to the
alleged incident concerning Mr Butler’s admission to her and their involvement
in disposal of the body.) At that point, Ms Harris asked for a break, which was
granted. During the break, Mr Bourke was advised that the witness was reluctant
to proceed. When the matter was recalled, Mr Bourke repeated the question he
asked before the break. Ms Harris said that she did not remember. She was asked
further questions and said that she had “just, like, blocked the whole thing
out”. She went on to say, “I don’t remember a lot, it was such a long time ago”,
“I am very blank” and similar things.
99 Mr Bourke then made an application, in the absence of the jury and the
witness, for leave to cross-examine Ms Harris pursuant to s
38(1)(b) of the Evidence
Act 2008 (Vic). In particular, he submitted that, given she had made a
statement about the matter and that she had given evidence on this topic at the
last trial, Ms Harris may reasonably be supposed to have knowledge of the matter
and that she was not making a genuine attempt to give the relevant evidence. The
application was opposed by Mr Desmond.
100 I resolved that the witness should be called on a voir dire in order to
determine whether she was or was not making a genuine attempt to give the
relevant evidence. I was concerned that, given her history (including a history
of heavy drug use) and the passage of time, she may just have been unable to
remember. On the voir dire, I explained to Ms Harris her obligation to tell the
truth.[11] She
did not claim to be unwell or affected by drugs. I asked her directly about the
incident at Thatcher Court. She said she did not remember a lot, that she did
not know. She said she had not read her statement. She was asked questions about
going to Queensland and about stealing the money from Mr Tascas’s account, and
seemed to answer those questions reasonably coherently, albeit her memory of
some of the detail was a little vague. She denied being frightened of giving
evidence. She reiterated that she did not remember a lot and that she could only
remember bits and pieces.
101 Ms Harris was asked further questions by both counsel. In cross-examination
by Mr Desmond, Ms Harris said she was unable to say that she saw Mr Butler
dragging a hessian bag out of the house and placing it into a drum or that he
burned any such thing. She conceded that she had experienced hallucinations
during and after drug use. However, in re-examination by Mr Bourke, Ms Harris
said she remembered telling the police the things in her statement; and that
those things were true when she said them.
102 Having heard Ms Harris’s evidence before the jury to that point and on the
voir dire, and having regard to her police statement and the evidence she had
given at the previous trial, whilst I considered it reasonably possible that she
simply could not remember the detail of the matter, I concluded on balance that
Ms Harris was not making a genuine attempt to give evidence about a topic she
may reasonably be supposed to have knowledge, namely the alleged incidents at
Thatcher Court.
103 I had regard to the fact that a decision to grant leave under s
38 also involves the exercise of a discretion. In considering that
discretion, I considered the matters spelt out in ss
38(6) and 192(2)
of the Evidence
Act. Having regard on the one hand to the potential unreliability of Ms
Harris’s evidence but on the other to the importance of the evidence to the
Crown case in this trial (a homicide trial, no less), I concluded that it was
appropriate to grant Mr Bourke’s application.
104 However, given that Ms Harris did seem to be able to give evidence about the
trip to Queensland and other matters such as the stealing of the money from Mr
Tascas’s bank account, I limited the cross-examination by the Crown to putting
to her those parts of her statement that concerned the alleged incidents at
Thatcher Court.[12]
105 Mr Bourke then completed what he could of Ms Harris’s evidence-in-chief
before the jury by asking non-leading questions (regarding the trip to
Queensland and other matters) and then returned to the incidents at Thatcher
Court, whereupon he put to her, in the manner of cross-examination, parts of her
statement concerning those issues. The witness agreed that she had said those
things to police in her statement and that they were true when she told the
police. In cross-examination by Mr Desmond, however, Ms Harris conceded that she
did not know if any of that was true because, today, she was unable to say that
those events occurred. More of this later.
Ruling No 5: Closure of Court for witness’s evidence of sexual abuse as a child
106 During the trial, the Crown called a witness whom I shall call CM. CM was
first called on a Basha inquiry.[13] Subsequently,
she gave evidence before the jury. Given that CM was to give, and gave, evidence
concerning her being sexually assaulted when she was only 13 years of age (she
was aged 21 at the time of giving evidence at trial), and given that she
preferred to give that evidence in a closed court and that the parties were not
opposed to that course, I directed that her evidence on both the Basha inquiry
and before the jury be given in closed court. In particular, having regard to
the embarrassment the witness may feel in giving evidence, in the presence of
the public, of an incident of alleged sexual abuse when she was a child and the
fact that such embarrassment may impinge upon her ability to give that evidence
unencumbered, and thereby may prejudice the administration of justice, I made an
order under s
18 of the Supreme
Court Act that her evidence be heard in closed court.
Ruling No 6: Alleged lies as incriminating conduct
Introduction
107 At the conclusion of evidence, and just before Mr Bourke formally closed the
Crown case, as foreshadowed earlier in the trial, I heard further argument on
the application pursuant to s 23 of the JD Act to rely on three alleged lies in
the accused’s record of interview identified in the notice as evidence of
incriminating conduct. In each case, I refused the application. My reasons for
doing so follow:
Item (c)(i): Did not know if Mr Tascas had taken his vehicle with him to
Bathurst
108 The first alleged lie relied on (set out in item (c)(i) of the notice) was
the accused’s assertion that he did not know if Mr Tascas had taken his vehicle
with him when he went to Bathurst.
109 The Crown relied on the answers to questions 110 and 111 of the interview to
establish the alleged lie:
110 Q: Okay. Do you know how he was getting there [i.e. to Bathurst]?
A: I assumed they were driving, but no, I didn’t know.
111 Q: Did his car go with him?
A: It wasn’t at home the following week. But I don’t know, I don’t – do not know
whether it went with him, I don’t know.
110 For reasons that follow, I found that it was not open to conclude that those
answers contained the alleged lie. First, as will be remembered, it had been
conceded (correctly) by Mr Bourke earlier in the trial that the evidence could
not exclude the reasonable possibility that Mr Tascas did in fact tell Mr Butler
he was going to Bathurst. Secondly, the evidence was not clear as to whether Mr
Tascas’s car was around the week following the Bathurst car races. Thirdly, to
ask a jury to conclude that the accused was lying when he said he did not know
whether the car went with Mr Tascas, when there was no positive evidence that
the car did not go with him, is surely too much in a criminal trial.
Item (c)(ii): Did not know what had happened to Mr Tascas’s dog Lulu
111 The second alleged lie relied on (set out in item (c)(ii) of the notice) was
the accused’s assertion that he did not know what had happened to Mr Tascas’s
dog Lulu.
112 The answers to questions 82, 83 and 84 of the interview were relied on to
prove the alleged lie:
82 Q: And when was the last time, well you – do you know what happened to that
dog?
A: As far as I know somebody took it for him, I don’t know whether it was
before, or what – it was a bit of a pest, because it got out of our – my yard
and things like that. I mean it was a cute little dog and all the rest of it,
and he really looked after it, but there was times where I didn’t see Shirl, or
whatever, for weeks, because she was at – you know, like – he treated it like a
child in a sense, and sometimes she went to stay at such and such’s place, you
know, and it was a bit weird sometimes, he was – he was sort of a hard, funny,
sort of a foul mouthed prick, you know just a general sort of Joe, and it was
quite amusing to watch sometimes, you know, almost pamper this thing, and it’d
stay over at someone else’s house for the weekend, or you know, what have you.
And sometimes it was to do with the fact that my fence wasn’t right, or – or
whatever, and I didn’t want the dog to be inside permanently.
83 Q: Do you know who the dog ended up with?
A: No, I’m not sure.
84 Q: Alright.
A: I’m not sure.
113 As indicated above, there was evidence from Ms Donaghy that, perhaps about
two months after Mr Tascas’s disappearance, Mr Butler indicated to her that he
had been left, in effect, to care for Lulu, that Mr Tascas had “taken off” and
would not be coming back, and that she could take Lulu if she wished, which she
did.
114 For reasons that follow, I found that it was not open to conclude that the
accused lied as alleged. First, the commencement of Mr Butler’s answer to
question 82 – “As far as I know somebody took it for him” – is consistent with
the evidence that Ms Donaghy did in fact take the dog. Secondly, that Mr Butler
did not proffer Ms Donaghy’s name nearly three years later could not be said to
be a lie. Thirdly, that Mr Butler said he was not sure to whom the dog went
could not be said to be a lie either. Fourthly, even if it could be said to be a
lie, it would not be a safe basis on which to found an inference of
incriminating conduct.
Item (c)(iii): Mr Tascas made arrangements for Lulu to be cared for in his
absence
115 The third alleged lie relied on (set out in item (c)(iii) of the notice) was
the accused’s assertion that Mr Tascas had made arrangements for the dog to be
cared for in his absence.
116 The answers to questions 117 and 121-123 were relied on to prove the alleged
lie:
117 Q: And – and he gave you no indications as to who he was meeting with or
going with?
A: No, as I said to you before, some old mates, and I thought he alluded to f-,
from Bluestone or something like that, which to me says, potentially from
prison. But, again, that was just something that I got a feeling for, I didn’t –
he didn’t – you know, this guy’s done this, or that’s happened there, or fuck
all, he just said, going to Bathurst, he was tickled pink when I spoke to him on
the phone. He said, “Do you want me to do anything specific?” I said, “No. No.”
I said, “Look, Lulu’s not stuck there.” “No. No. She’s going to.” And I can’t
recall, someone’s place.
...
121 Q: There you go ...
A: I didn’t think it was Shirley, ‘cos it – it’s just that I thought, ‘cos I
said to him at the time, you know, I didn’t want her stuck here for a couple of
days, if I wasn’t there, and if she was stuck there, I wanted to know how – you
know, how – whether he wanted me to try and feed her or whatever, occasionally
I’d do it for a day or three. But anyway, I know that he knew that it was
anything more than a day or two or three, I – I wasn’t going to be responsible.
So there you go, Lulu the dog.
122 Q: So your understanding is that Lulu was – went to - - - ?
A: Looked after.
123 Q: An associate, friend’s, whoever?
A: Yeah. Yeah. Which happened on more than one occasion.
117 Whilst this was perhaps a little more borderline than the previous two, for
reasons that follow, I found that it was not open to conclude that the accused
lied as alleged. First, whilst it is true that the answer to question 117 may be
construed as meaning that the accused was asserting that Mr Tascas had said that
Lulu was going to someone’s place, the difficulty is that there is no proof that
that was not said by Mr Tascas. Secondly, whilst it is also true that the
answers to questions 122 and 123 may be construed as meaning that the accused
was asserting that Lulu went to “[a]n associate, [a] friend’s or whoever”, it is
not clear that he was asserting that the dog went to another person on the
Bathurst weekend. Indeed, it seemed to me to be unreasonable to exclude the
conclusion that the accused was there speaking about the same occasion to which
he had referred in the answer to question 82, namely that he thought someone
took the dog. And, as pointed out above, Ms Donaghy’s evidence was that she did
in fact take the dog some two months or so later.
Conclusion
118 Accordingly, I refused the application to rely on the alleged lies listed in
items (c)(i), (ii) and (iii) of the notice as incriminating conduct.
Ruling No 7: Application that evidence of Ms Harris be withdrawn from the jury
Accused’s arguments
119 Also at the conclusion of evidence, and just before Mr Bourke formally
closed the Crown case, Mr Desmond submitted that the evidence of Ms Harris
should be withdrawn from the jury on the basis that to receive that evidence
would be unfair to the accused, essentially for two reasons. First, he submitted
the evidence was unreliable. Secondly, he submitted that there were limitations
on his ability adequately to cross-examine the witness about the events at
Thatcher Court when she agreed she had told the police those events occurred and
were true but which in cross-examination she conceded she could no longer say
occurred.
120 In support of the application, Mr Desmond referred in particular to the
reasons of Brooking, McDonald and Hansen JJ in their joint judgment in Rozenes v
Beljajev [1995]
VicRp 34; [1995]
1 VR 533 and to those of Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno
JJA in their joint judgment in Dupas v The Queen [2012]
VSCA 328; (2012)
218 A Crim R 507.
121 Mr Desmond relied on several factors indicating Ms Harris’s unreliability,
including the following:
122 First, whilst, on the account in her statement, Ms Harris was not an
accomplice to manslaughter (as opposed to being an accomplice in the offence of
being an accessory after the fact to manslaughter), the parties, correctly in my
view, were content to treat her as if she were an accomplice and therefore
someone the law accepts may have a tendency falsely to shift the blame and
inculpate others.
123 Secondly, Ms Harris had a long history of dishonesty through criminal
offending, both before and after the alleged manslaughter.
124 Thirdly, there was evidence from some of those who knew her that Ms Harris
had a reputation as a liar.
125 Fourthly, Ms Harris admitted that she had previously lied to the police.
126 Fifthly, Ms Harris agreed that she had a motive to lie when she made her
statement to police in July 2008. She had been arrested for murder, she was in a
very difficult position and, by giving an account to police, she secured for
herself a less serious charge. She ended up receiving a suspended sentence for
that lesser offence. Further, Ms Harris accepted that, unless she adhered to her
story, she was at risk of being brought back to court to have her sentenced
increased.
127 Sixthly, Ms Harris made her statement to police nearly three years after the
alleged incident and she was now giving evidence a further five years after she
made that statement.
128 Seventhly, Ms Harris agreed that she had been using drugs heavily throughout
the period when the incident was said to have happened and when she spoke to
police nearly three years later. She accepted in evidence that her mindset back
in 2005 was “destroyed” by drugs.
129 Eighthly, Ms Harris accepted that she may have been hallucinating during
that period. She was asked: “You are allowing for the possibility at that point
of the questioning (meaning with police) that possibly you were hallucinating,
had hallucinated these events, weren’t you?” “It was possible, yeah”, she said.
130 Ninthly, there was evidence that Ms Harris had given starkly inconsistent
versions to others. For example, Ms Dawkins gave evidence that Ms Harris told
her, effectively, that Mr Butler was not involved in the killing but that two
other men were, and that he (Mr Butler) was there with her after the fact and
was forced to help dispose of the body.
131 Tenthly, Ms Harris conceded in cross-examination that, although she said
certain things (about the events at Thatcher Court) to the police in her
statement and that those things were true when she said them, she could not now
remember if those things were in fact true.
132 As indicated above, Mr Desmond also argued that, because Ms Harris could not
now remember whether the things said in her police statement were in fact true,
he was unable adequately to test the evidence that those things were true when
she said them to police. This, in turn, he argued, created an unfairness for the
accused that could be remedied only by withdrawing the evidence.
The Crown’s response
133 Mr Bourke conceded that Rozenes v Beljajev allowed that, at common law,
there was a residual discretion in a criminal case to reject any evidence on the
ground that to receive it would be unfair to the accused in the sense that the
trial would be unfair. He also accepted that such a discretion had survived the
passage of the Evidence
Act. Mr Bourke submitted, however, that, whether the matter was considered
pursuant to such a residual discretion or under s
137 of the Evidence
Act, the course proposed by Mr Desmond could be taken in only the most
exceptional of cases and that this was not such a case.
134 Mr Bourke also submitted that the ten matters identified above could – and
should – all form part of an unreliable witness warning that left it to the jury
to determine whether they were satisfied beyond reasonable doubt about the
witness’s evidence. Such an approach, he submitted, would be consistent with the
division of functions between a trial judge and a jury. Given that there would
be no case without Ms Harris’s evidence, to withdraw her evidence would be
tantamount to withdrawing the case from the jury on the basis that a conviction
based on her evidence would be unsafe and unsatisfactory, which is a power a
trial judge does not possess.
135 Mr Bourke also submitted that, while an inability adequately to
cross-examine a witness may be a matter that amounts to unfairness within the
residual discretion spoken of in Rozenes v Beljajev and to a danger of unfair
prejudice within the meaning of s
137, there was no particular difficulty in cross-examining Ms Harris on the
matters in question. In this regard, he pointed to parts of the
cross-examination of Ms Harris which he said demonstrated that counsel was able
adequately to test her evidence. Further, he submitted that, even if he were
wrong about that, directions could be given to the jury to explain the
difficulties of cross-examination in those circumstances.
Principles
136 Whilst I was not pointed to any decision which has considered whether the
residual discretion spoken of in Rozenes v Beljajev has survived the passage of
the Evidence
Act, for the purposes of this application, I assumed, without deciding, that
it had so survived. Consistently with the parties’ submissions, I also treated
the application as one to be considered under s
137 of the Evidence
Act. As will be seen, the test under s
137 is informed by the common law discretion known as the Christie
discretion.[14] Further,
as the Court in Rozenes v Beljajev remarked (at 549), it is difficult to imagine
circumstances in which grounds might exist for the exercise of the residual
discretion in relation to any evidence (confessions apart) which would not bring
the case within the Christie discretion anyway.
137 In particular, the Court in Rozenes v Beljajev said this (at 549):
The proposition must be accepted that there is a discretion in a criminal case
to reject any evidence, whether or not a confession, on the ground that to
receive it would be unfair to the accused in the sense that the trial would be
unfair. So much must be accepted both on principle and by reason of the
authorities. It would be wrong to regard as exhaustive the two particular
discretions (that relating to probative value and prejudicial effect and that
established by Bunning v Cross[15])
put forward by the Attorney-General in McLean and Funk[16] as
the only discretions available for the exclusion of evidence other than
confessional evidence. But while the existence of a residual discretion must be
accepted, it is not easy to think of circumstances in which grounds might exist
for the exercise of that residual discretion in relation to any evidence – we
are not speaking of confessions – which would not bring the case within the more
specific principle whereby evidence is not to be admitted where its prejudicial
effect is out of proportion to its probative value.
138 Later in the judgment, the Court said this (at 553-554):
As we have said, we do not think that one can dispute the proposition that,
quite apart from the other circumstances which have been authoritatively
accepted as giving rise to the discretion to exclude admissible evidence in a
criminal trial, the discretion arises whenever it is shown that the reception of
certain evidence will be unfair to the accused. But, as we have said, once it is
accepted that this proposition does not commit to the judge a broad and
undefined discretion to determine what is in all the circumstances fair, but
requires the judge to consider whether reception of the evidence will make the
trial unfair, it becomes difficult to think of a set of circumstances which
might give rise to the discretion in cases where it is not suggested that there
is a disproportion between the probative value of the evidence and its
prejudicial effect. In particular, as Carter J observed at 255 in McLean
and Funk, it is difficult to see how it can be said that the trial is unfair
by reason of the unreliability of evidence which is probative where the
circumstances which make the evidence unreliable are properly exposed for the
consideration of the jury. His Honour went on to conclude at 260 that there was
no discretion to exclude evidence which was based wholly or primarily upon the
trial judge’s conclusion that the evidence was unreliable: the exercise of such
a discretion interfered with one of the most integral of the jury’s functions, a
function which there was no reason to believe any properly instructed jury to be
incapable of properly performing.
We are, with respect, in general agreement with the view of Carter J on these
questions. As Dixon J once said [in Sinclair v
The King [1946]
HCA 55; (1946)
73 CLR 316 at 333]:
... at bottom the choice is between the course of placing before the jury
material which bears upon the case, leaving them to judge of its reliability and
probative value, and the course of withholding it from them on the ground that
there is too much danger in their taking into consideration matter which by
reason of its source or provenance is prima facie dubious and untrustworthy.
The approach of the courts has been and should be one with a very strong
predisposition to the view that, questions of fact and credibility being for the
jury and the jury being an institution in whose capacity and integrity
confidence is reposed by the courts, evidence which is probative should go to
the jury despite its infirmities, accompanied by the trial judge’s directions
concerning the considerations, both general and particular, affecting its
reliability, including of course in an appropriate case the matter of
corroboration. Trial judges must be at pains to ensure that the discretion to
exclude admissible evidence on the ground of unfairness is not used (contrary
to Doney[17])
to withdraw a case from the jury on the footing that any conviction would be
unsafe or unsatisfactory. The judge in the present case has really exercised the
discretion to reject admissible evidence on the ground of unfairness on the
basis that a conviction based on the apprehended Crown case would be unsafe or
unsatisfactory, and has, so to speak, given in favour of the defence an
anticipatory ruling (in the light of the apprehended or hypothetical Crown case)
which Doney would show to be erroneous had
it been given at the close of the Crown case.
139 Later still, the Court
said this (at 555-556):
The vast body of case law that has grown up over many years on what a judge
should say to a jury in particular recurring situations where evidence regarded
by the law as unreliable forms part of the Crown case shows that the common
law’s answer to the problem of unreliable evidence has been to leave it to the
jury, assisted by warnings and comments from the judge. Compare Lord Diplock’s
remarks in Director of Public Prosecutions v
Hester [1973]
AC 296 at 324-5. As Lee J said in R v Booth [1982]
2 NSWLR 847 at 850: “It is left to the jury to appraise the evidence in the
light of the warning given”. This is, of course, subject to an appellate court’s
power to quash a conviction as unsafe or unsatisfactory. It would be strange if
a trial judge had no power to direct an acquittal on the ground that the
evidence for the prosecution, while sufficient in law to enable a jury to
convict, was so unsatisfactory that a conviction would be unsafe, yet had power
to exclude that evidence so as to bring about the collapse of the prosecution.
140 Finally, the Court said
this (at 559):
We accept the view of Carter J that there is no discretion to exclude evidence
which is based wholly or primarily upon the trial judge’s conclusion that the
evidence is unreliable. But if this view be too extreme, then at least it would
have to be said that the circumstances calling for a favourable exercise of the
discretion would have to be most exceptional. For it could only be in a most
exceptional case that one could say, as Vincent J put it in Peirce at
277, that the considerations affecting reliability were not “comprehensible to a
jury and capable of assessment by them as the proper tribunal of fact”.
141 In R v Shamouil [2006]
NSWCCA 112; (2006)
66 NSWLR 228, the New South Wales Court of Criminal Appeal rejected the view
that a trial judge was required to take into account the reliability and weight
of evidence in determining whether it should be excluded under s
137 of the Evidence
Act.
142 In Dupas v The Queen [2012]
VSCA 328; (2012)
218 A Crim R 507, the Court of Appeal concluded that Shamouil and the other
decisions that had applied it were manifestly wrong in this regard and should
not be followed. In particular, the Court of Appeal concluded as follows (at
[63]):
(a) The common law did require the trial judge, in assessing probative value, to
evaluate the weight that the jury could rationally attach to the evidence. The
contrary conclusion was inconsistent with a continuous line of High Court
authority.
(b) The legislative intention, as disclosed by the language of s
137 and its context, is that the task under s
137 is the same as that at common law.
(c) The trial judge undertaking the balancing task is only obliged to assume
that the jury will accept the evidence to be truthful but is not required to
make an assumption that its reliability will be accepted. The phrase ‘taken at
its highest’ is more appropriately used in considering a no case submission,
when the judge must accept that the jury may find the evidence credible and
reliable.
(d) In order to determine the capacity of the evidence rationally to affect the
determination of a fact in issue, the judge is required to make some assessment
of the weight that the jury could, acting reasonably, give to that evidence.
Where it is contended that the quality or frailties of the evidence would result
in the jury attaching more weight to the evidence than it deserved, the trial
judge is obliged to assess the extent of the risk. That does not require the
trial judge to anticipate the weight that the jury would or will attach
to it. The judge is obliged to assess what probative value the jury could assign
to the evidence, against which must be balanced the risk that the jury will give
the evidence disproportionate weight.
(e) So to construe s
137 accords with the language of the statute and its context. To construe it
otherwise does not.
(f) Such a construction does not involve any enlargement of the powers of a
trial judge or any encroachment upon the traditional jury function.
143 Further, in Dupas (at
[110]), the Court said this of Rozenes v Beljajev:
Significantly, [Rozenes v Beljajev] serves
to confirm – if confirmation be needed – that in assessing probative value, the
judge may need to consider the quality and reliability of the evidence. The
distinction between credibility (being the province of the jury) and reliability
(which the judge was to consider) was expressly affirmed:
The judge referred to the distinction drawn by Vincent J in Pierce[18] at
275–276 between the reliability of evidence (a
matter to which the trial judge might properly have regard) and the
credibility of a witness and his or her evidence (a question for the jury). When
Vincent J in Pierce distinguished between reliability and credibility his Honour
plainly had in mind the constitutional position of the jury as trier of facts. But
unfortunately in the present case the judge embarked upon the hearing of the
application on the basis that one of the things which he should do was determine
whether the evidence of Hills, when given, would be true and correct. This
failed to observe the distinction which his Honour had drawn between reliability
and credibility and meant that the judge had set himself the impossible task of
determining whether evidence would, if and when it was given, be true and
correct ...[19] [Emphasis
added by the Court in Dupas.]
Conclusions
144 I formed the view that the ten factors relied on by Mr Desmond, when
considered together, were so compelling that a jury could not reasonably regard
Ms Harris’s evidence as to the events at Thatcher Court as of much weight and
yet that there remained a risk that a jury may give disproportionate weight to
that evidence. I also formed the view that it would be dangerous to convict on
that evidence. Further, none of that evidence was corroborated. In summary,
having seen and heard Ms Harris’s evidence and the other evidence at trial, I
was of the view that it would not be open to a jury to be satisfied beyond
reasonable doubt of Ms Harris’s evidence of the events at Thatcher Court.
145 However, having regard to the principles extracted above from the judgments
in Rozenes v Beljajev and Dupas, for reasons that follow, I rejected the
application to withdraw Ms Harris’s evidence from the jury.
146 First, as much as the reasoning in Dupas requires a trial judge to have
regard to reliability in considering admissibility, credibility remains the
province of a properly instructed jury (or an appellate court). Credibility and
reliability overlap at times. For example, to assert that a witness may be
unreliable because of, say, a motive to lie, a history of dishonesty and
previous inconsistent statements is also to say that her credibility may be in
issue for the same reasons. Even Ms Harris’s concession that she could not now
say whether the events described in her statement occurred is as much a matter
of credibility as it is one of reliability. Thus, to have withdrawn Ms Harris’s
evidence from the jury on the basis of unreliability would have been to make a
judgment about her credibility as well, which would have been to usurp the
jury’s function and go beyond my function as a trial judge, even though it might
be said that this was a rather exceptional case. Put another way, I accepted Mr
Bourke’s submission that to withdraw the evidence from the jury would have been
tantamount to directing an acquittal on the basis that any guilty verdict would
be unsafe and unsatisfactory, which would have been beyond my power as a trial
judge.
147 Secondly, as Mr Bourke submitted, consistently with the division of
functions between judge and jury, the ten matters identified by Mr Desmond could
– and should – form part of a strong judicial warning to the jury as to the
dangers of relying on the evidence of Ms Harris.
148 Thirdly, whilst it is true to say there was a degree of forensic difficulty
in cross-examining the witness as to inculpatory events about which she made a
statement but which she said she now could not say occurred, I did not regard
that forensic difficulty as rendering the trial unfair. There are three reasons.
First, as Mr Bourke pointed out, Mr Desmond did cross-examine on the alleged
events to some extent. Secondly, pursuant to my ruling on the application under s
38, Mr Bourke confined himself to having the witness agree that she made the
relevant parts of the statement and that they were true. He did not apply to
cross-examine her on matters of credit. Thus, the witness’s evidence that she
could not now say whether the events in question occurred was contradicted only
by the fact that she said otherwise to police some five years ago but three
years after the alleged events and at a time when her mind was destroyed by
drugs and when she may have been hallucinating. Arguably, little, if any,
cross-examination of the alleged events was required after Ms Harris made that
concession. Thirdly, it would be possible to craft a jury direction that
explained the forensic difficulty faced by the accused in cross-examining on
events that the witness once said occurred but now says she cannot remember.
Ruling No 8: Submission of no case to answer
Introduction
149 At the close of the Crown case, Mr Desmond submitted that I should direct
the jury to acquit because there was no case to answer.
The test
150 The parties accepted that relevant test is set out in Doney v The Queen [1990]
HCA 51; (1990)
171 CLR 207 at 214-215:
It follows that, if there is evidence (even if tenuous or inherently weak or
vague) which can be taken into account by the jury in its deliberations and that
evidence is capable of supporting a verdict of guilty, the matter must be left
to the jury for its decision. Or, to put the matter in more usual terms, a
verdict of not guilty may be directed only if there is a defect in the evidence
such that, taken at its highest, it will not sustain a verdict of guilty.
Crown case
151 The Crown case is summarized very briefly above (at paragraphs [10]-[18]).
For present purposes, the three most important aspects of that case were Ms
Harris’s evidence:
a) that Mr Butler told her that he and Mr Tascas “had an argument over rent and
that [Mr Tascas] ... fell and hit his head and got knocked out”;
b) that Mr Butler enlisted her to assist him in disposing of what she understood
to be Mr Tascas’s remains, which they both did; and
c) that, some time later (probably in November 2005), she and Mr Butler
travelled to Queensland in Mr Tascas’s car; and that the car was left in
Queensland.
152 The first two aspects of evidence depended solely upon Ms Harris and were
disputed. The third depended partly on Ms Harris and partly on other evidence
but was not disputed.
Matter in issue
153 For the purposes of this submission, Mr Desmond conceded that the jury could
find that Mr Tascas was dead. However, Mr Desmond submitted that there was no
evidence that Mr Butler had caused Mr Tascas’s death by an unlawful and
dangerous act.
154 In my view, the alleged admission by Mr Butler that he and Mr Tascas “had an
argument over rent and that [Mr Tascas] ... fell and hit his head and got
knocked out”, when coupled with the evidence that Mr Tascas was dead (and even
allowing for the evidence of motive), was not capable of proving the offence of
manslaughter by unlawful and dangerous act. Whilst it might be inferred from the
admission and the surrounding circumstances that some act of Mr Butler caused Mr
Tascas to fall, hit his head and die (although, even that is a stretch), only by
speculation could it be concluded that the act was deliberate and dangerous.
Thus, considered in that narrow way, there was a defect – or gap – in the
evidence.
155 The question at issue then became whether the evidence of incriminating
conduct was capable of filling that gap. Mr Desmond argued it was not so
capable; Mr Bourke argued to the contrary.
Conclusion
156 In my view, Mr Bourke was correct.
157 As indicated above in Ruling No. 1, in R v Rice [1996] 2 VR 406 at 412,
Brooking JA, when dealing with a case in which a person had concealed a body in
a lime-filled drum and told lies regarding the deceased’s movements and plans,
asked rhetorically, “Why should a man take such a risk if the explanation for
her death was an innocent one?”
158 So too in the present case a jury would have been entitled to reason that
the evidence of disposal of the body (and the use and disposal of Mr Tascas’s
car) could only be explained by Mr Butler believing that he in fact had
deliberately performed an unlawful and dangerous act which had caused Mr
Tascas’s death.
159 Thus, whilst it was, in my view, a very weak case, it was a case that passed
the “no case” test. Accordingly, I rejected the application to direct the jury
to return a verdict of not guilty.
Ruling No 9: Prasad invitation
Introduction
160 Mr Desmond submitted that, if I declined to direct a verdict of acquittal, I
should give the jury a Prasad invitation[20] because
the evidence was not sufficiently cogent to justify a conviction, particularly
given the matters he identified on the application to withdraw Ms Harris’s
evidence from the jury.
161 Mr Bourke conceded that, if I formed the view that the evidence was not
sufficiently cogent to justify a conviction because of the difficulties with Ms
Harris’s evidence, it was open to give the jury a Prasad invitation.
Conclusion
162 In my view, that was an appropriate concession.
163 As indicated above, I formed the view that the ten matters relied on by Mr
Desmond on the application to withdraw Ms Harris’s evidence from the jury were
so compelling that it would not be open to a properly instructed jury to be
satisfied beyond reasonable doubt of Ms Harris’s evidence of the events at
Thatcher Court. Absent satisfaction beyond reasonable doubt about the truth and
reliability of Ms Harris’s evidence as to those events, the Crown case could not
succeed.
164 I also formed the view that I could give the jury a relatively short and
simple explanation of the relevant aspects of the law and of the potential
defects in the evidence of Ms Harris.[21] Counsel
agreed that I should list the ten matters as part of an unreliable witness
warning to be given in the course of the Prasad invitation.
165 Accordingly, in summary, I directed the jury:
a) that the prosecution case was now closed and at its highest point;
b) on the difference between my function as trial judge and theirs as jurors; on
the onus and standard of proof; that any verdict must be unanimous; and on the
elements of manslaughter (all of which I had explained in preliminary directions
at the commencement of the trial);
c) that they could not find the accused guilty of manslaughter unless satisfied
beyond reasonable doubt of the truth and reliability of the essential aspects of
the account of Ms Harris;
d) that, even if satisfied beyond reasonable doubt of Ms Harris’s account, the
accused could not be found guilty unless the jury were prepared to go on and
draw certain inferences or conclusions from her evidence and other evidence so
as to make out all of the elements of manslaughter;
e) that, because of the ten matters mentioned above (which I set out for the
jury), it would be dangerous or unsafe to act on Ms Harris’s evidence;
f) that, as a result, they were entitled to return a verdict of not guilty now
rather than continue with this trial;
g) that that was an unusual course but was nevertheless a course that sometimes
occurs in trials;
h) that, if they wished to hear more of the case, they may do so;
i) that, if the matter went on, I would be explaining these concepts – and many
others – to them in more detail;
j) that they were to go into the jury room and consider what I had just told
them;
k) that they may come back and return a verdict of not guilty;
l) that they may not – and must not – return a verdict of guilty at this time;
m) that, if they did not wish to return a verdict of not guilty but instead
wished to hear more of the case, they were to indicate accordingly when they
came back; and
n) that, if they did wish to return a verdict of not guilty, they were to
indicate accordingly when they came back.
166 The jury retired to consider their course. About ten minutes later, they
returned and indicated they wished to return a verdict of not guilty. The
verdict was taken from them in the usual way. The accused was released from the
dock. The jury were discharged with the thanks of the Court.
Ruling No 10: Hearsay evidence
167 Finally, a good deal of hearsay evidence was led at trial without objection
by either party. Some of that evidence concerned assertions by witnesses that
others had made assertions or observations as to matters relevant to facts in
issue, including the possible involvement of others in the death of Mr Tascas.
An issue arose as to the uses to which those various pieces of hearsay evidence
might be put. Some was plainly relevant to the credit of Ms Harris and other
witnesses but some may also have gone in as to its truth. Some was so remote
that it may have been inappropriate to go in as to its truth but may have had a
relevance to potential arguments to be made about the investigation. Resolution
of these matters would have required close consideration of ss
60, 65 and 136 of
the Evidence
Act and perhaps other provisions.[22] The
parties addressed some argument on the matters but further argument and ruling
were deferred pending the outcome of the Prasad invitation.
168 Given the jury returned a verdict of not guilty and that I wished to hear
more argument on the matter before ruling, I consider it neither necessary nor
appropriate to express any views on the arguments that were put on these issues.
Elapsed time hinders probe into man's disappearance
Posted Mon
Jul 7, 2008 4:39pm AEST - ABC
Victorian police say solving the suspected murder of a man
missing for almost three years will be difficult.
Thirty-year-old Trevor Tascas of Geelong disappeared in August 2005, but a
friend recently told his mother they heard he had been murdered.
Homicide detectives have checked the information and say it is credible.
Detective Senior Sergeant Ron Iddles says the passage of time makes the
investigation difficult.
"In that period of time you've got things like the destruction of evidence
and a whole range of issues," he said.
Police say he was dealing heroin and amphetamines at the time of his
disappearance.
Detective Senior Sergeant Iddles says it will be tough to trace Mr Tascas'
final movements.
"One of the things when you're dealing drugs, you're constantly changing
your phone numbers and it's difficult for us to actually piece together his
movements." he said.
"We desperately need to locate the house that he moved to in East Geelong
and that might then give us a further start."
His mother Pamela Tascas only reported him missing last January.
"Someone would always say they seen him, or you know, he's doing well,"
she said.
Mr Tascas' car, a maroon Holden Calais, and dog are also missing.
The father of Geelong murder victim Trevor Tascas has called on his
unrepentant killer to reveal where he dumped his son's remains.
Lawrence Butler was jailed for 23 years on Tuesday for murdering his
roommate in October 2005, chopping up his body using a hacksaw and then
burning it in a barrel in the backyard of their Geelong home.
Butler, 45, placed the ashes and bone fragments into plastic bags and later
dumped them.
Mr Tascas' father Joe Van Der Wel pleaded with his son's killer and the
public to help find his son's remains.
"If anybody knows where we could start looking, to let us know any
information at all," he said.
"We have no closure at this point in time and it hurts every day.
"I would love for him (Butler) to say where he dumped it."
Victorian Supreme Court Justice Betty King said that after the grisly
murder Mr Tascas' dog Lulu, his car and furniture from the house were
sold.
She said that because Butler did not give evidence in court and there
were no witnesses to the murder, she was unable to pinpoint how Mr
Tascas was killed.
But she said she was satisfied the victim's body was burnt and disposed
of to prevent any forensic testing or examination.
Justice King said Butler, a father-of-three, had played games with
officers in an interview he gave police.
"It is chilling to watch," she said.
"It indicates quite clearly that you were playing word games and
attempting to outwit and to a degree patronise the officers that were
interviewing you over this serious matter.
"The interview does not assist you in any way.
"It also does not give me great comfort for the future in terms of
rehabilitation.
"There is no real explanation as to why you murdered Trevor Tascas and
your behaviour both immediately after the killing with the destruction
of his body and the contemptuous manner in which you used and dealt with
his possessions gives me real concerns as to your ability to change and
modify your behaviour."
Mr Van Der Wel said the sentence offered little comfort.
"I still feel for his family because they have done nothing wrong," he
said.
"I think justice has been done because it's a lengthy sentence, but
there are no winners here.
"Butler has not shown any remorse."
Butler was found guilty in October after contesting the murder charge.
He must serve at least 20 years before being eligible for parole.
In a written statement to the Geelong Advertiser, Butler's family said
they stood by the convicted killer.
"Lawrence's family love and support him and will continue to maintain
his innocence," the statement said.
Lawrence Butler's murder conviction quashed, manslaughter trial ordered
MAN convicted of murdering mate has conviction overturned because he might not
have intended to kill his victim.
HeraldSunDECEMBER
20, 20112:50PM
A MAN convicted of murdering a flatmate and disposing of his body in the
household garbage has had his murder conviction overturned because a court
found he might not have intended to kill the victim.
The Court of Appeal in a majority decision which it is claimed
contradicts High Court precedent, ruled that Lawrence Butler, 32, should
face a retrial for the manslaughter of Trevor Tascas, but not a murder
charge.
Appeal judge Justice David Ashley said although it was open for the jury
to conclude that Butler killed Mr Tascas and disposed of his body, it
was a possibility he did not have "murderous intent".
Butler cut up Mr Tascas's body in the bathroom of a house in
Whittington, a suburb in Geelong, in October 2005, burned it in a
backyard incinerator and then disposed of the remains with the garbage.
No trace of him has ever been found.
Justice Ashley said the jury heard Butler told a series of lies about
the killing, gave no alternative explanation, disposed of the body in
horrendous circumstances and asked others to cover up his actions.
Justice Ashley said the jury was entitled to believe the chief Crown
witness, Jodi Harris, who said Butler asked her to help him dispose of a
hessian bag that she believed contained Mr Tascas's body.
Ms Harris said Butler, who told police he did not know what happened to
the victim, said if she believed the bag contained Mr Tascas “you can
help me''.
"I do not doubt that it was open to the jury to conclude that the
applicant had killed Mr Tascas,'' Justice Ashley said.
"The evidence permitted a conclusion to the criminal standard not only
that Tascas was dead, but also that the applicant knew he was dead. But
it did not cast light on how Mr Tascas had met his death."
Justice Ashley, who was supported by Justice Ian Ross, ordered that
Butler's conviction should be quashed as a miscarriage of justice and he
should have a retrial on a manslaughter charge.
Appeal Court president Justice Chris Maxwell dissented with the decision
and said Butler's own defence counsel had never suggested his client
might have accidentally killed the victim.
"This was a case which called for explanation or contradiction in the
form of evidence from the accused," Justice Maxwell said.
Justice Maxwell said the majority appeal court decision went against
High Court precedent confirmed on a number of occasions.
"The failure of an accused to give evidence in a circumstantial case
such as this means that hypotheses consistent with innocence may cease
to be rational or reasonable in the absence of evidence to support them
when that evidence, if it exists at all, must be within the knowledge of
the accused," Justice Maxwell said.
A man recruited his girlfriend to help dispose of his flatmate's remains
when she asked about the contents of a hessian bag in the bathtub, a trial
has heard.
Lawrence Alexander Butler initially told Jodi Harris the bag held the
contents of a fishing trip, but she in turn asked if the trickle of blood
was coming from the remains of her boyfriend's flatmate, Trevor Tascas, the
Supreme Court heard on Monday.
The court heard Mr Butler replied: "If you think that you can come and help
me."
Prosecutor Patrick Bourke said Ms Harris agreed to help Mr Butler dispose of
the remains by putting the bag in a barrel and setting it alight in the
backyard of a flat in Whittington, a suburb of Geelong, in October 2005.
Mr Bourke said the couple then put the remains in plastic bags that were
then put in a wheelie bin and placed in the boot of Mr Tascas' Holden
Calais, which they later drove to Queensland and left in the possession of
another man.
Mr Butler, 49, has pleaded not guilty to one count of manslaughter.
Mr Bourke said Mr Butler told Ms Harris he had a "physical
confrontation" with Mr Tascas over rent money and that the latter man
had hit his head. Mr Tascas, who was 27 at the time, has not been seen
or heard from since.
The court heard Mr Butler had told police he had not seen his flatmate
since Mr Tascas drove to Bathurst to watch the famous car race, but that
he later gave the missing man's dog to a friend and said she could keep
it as "Trevor would not be returning".
Mr Bourke said if the jury believed Ms Harris' testimony, they would
find Mr Butler's behaviour to be "extreme" and that he was guilty of
killing Mr Tascas.
Defence counsel John Desmond also put an emphasis on Ms Harris'
evidence, in that she formed the entire Crown case.
He said there were no witnesses to any altercation, no body, no forensic
evidence and that the trial would "ask more questions than provide
answers".
Mr Desmond said Ms Harris had "cut a deal" with police to turn
prosecution witness and blame Mr Tascas' disappearance on Mr Butler,
that she had an amphetamine addiction and had involvement in "criminal
activities" for dishonesty offences, having also spent time in jail.
"We say she is lying and is, at the least, a wholly unreliable witness.
If you [jurors] don't believe her, my client is entitled to be
acquitted," he said.
The court heard Ms Harris and her former husband, Troy, took more than
$11,000 from Mr Tascas' bank account about nine months after his
disappearance.
Mr Butler is on bail. The trial, before Justice Michael Croucher,
continues.
Anguished family see son's accused killer around town
The Age
A Victorian mother has spoken of her loss after a coroner ruled her 27-year-old
son's mystery death was murder.
Trevor Tascas’ body has never been found, but police believe his remains were
hidden in a white hessian bag in the bathtub at his Geelong home before being
burnt in a barrel in his backyard in 2005.
His housemate’s girlfriend later told police she saw bone fragments in the
barrel’s ashy remains before they were swept into plastic bags and dumped.
On Tuesday, coroner John Olle declared Mr Tascas' disappearance a homicide.
Mr Tascas' mother Pamela Tascas says the finding has confirmed the
family's belief her son was killed.
"I’ve waited 14 years for [my son] to walk up the path and he hasn't
come," she said. "We’ve waited all this time."
At the time of Mr Tascas’ disappearance in early October 2005, he had
been living with a man named Lawrence Butler.
In 2009 Mr Butler was sentenced to 23 years in jail for his housemate's
murder, before his conviction was quashed on appeal.
The alleged killer was later retried for manslaughter before a jury
found him not guilty.
Mr Tascas’ family say they are now forced to leave restaurants across
Geelong as they bump into the man accused of being responsible for the
27-year-old's disappearance.
During a summary inquest on Tuesday, the Coroners Court heard Mr Tascas,
also known as Trevor John Van Der Wel, disappeared from Geelong's east some
time between October 7 and 10 in 2005.
After being released from prison in 2000 for a series of burglaries and
thefts, he had returned to Geelong to reconcile with his mother.
But he spiralled back into cannabis and methamphetamine use and lost contact
with her.
In 2005 he moved into a home in Thatcher Court, Whittington, with Mr Butler.
But within weeks he suspected his new housemate was "snooping" in his room
and they began to argue over money.
During the Bathurst V8 Supercars weekend in early October 2005, Mr Butler's
new girlfriend Jodi Harris attended the property and asked to use the
shower.
She told police that there, in the bath, she found a large white hessian
bag.
"The water was red in colour and I immediately thought it was blood mixed in
with the water," she told police.
Tuesday's inquest heard that when Ms Harris questioned her partner about the
bag's contents, he said it was fish.
In statements to police, Ms Harris said she later walked past Mr Tascas'
bedroom and saw a blood-soaked sheet. When she told her boyfriend she wanted
to leave, he allegedly replied: "You know what you've seen, you are now a
part of this."
Ms Harris said her boyfriend then dragged the bag outside into a large
barrel.
Days later Ms Harris said she returned to the Whittington home to find "bone
fragments" in the ash, some the size of fingers.
The inquest heard that several days later the pair drove Mr Tascas’ maroon
Holden Commodore to Queensland, where it was sold for cash.
Months later Ms Harris withdrew $10,000 from the missing man’s bank
accounts, giving some to her ex-husband to purchase a blue sports car.
The coroner Mr Olle acknowledged the police investigation was thorough.
"While Mr Tascas' body has not been located, there is sufficient evidence to
satisfy me that his disappearance is due to him being deceased and that the
death is a suspected homicide," he said.
Sister Kirsty Tascas said the family would never give up hope of finding out
what happened to her older brother.
"Hopefully it's chewing [the killer] up inside."
Mr Tascas’ father Joe Van Der Wel died of a heart attack last year, never
knowing what happened to his son.
Cold case: $1m reward offered for information about Trevor Tascas’ death
In a heartbreaking plea, the family of a man who mysteriously disappeared
back in 2005 have spoken out about losing their ‘cheeky boy’.
Mr Tascas’ mum Pamela and sister Kirsty broke down in tears on Wednesday,
saying they have been “stuck in a time warp since 2005”, with their family’s
lives turned upside down.
“He never came home. I have nothing, just photos.” Mrs Tascas said.
“It’s destroyed our daughters – It is just gut wrenching, 16 years of not
knowing and then having to hear the coroner say he‘s dead.”
The mother of three described her son as a “cheeky, cheeky boy” who loved to
surf and always protected his sisters.
“He loved his sisters, even though they fought a lot.” Mrs Tascas said.
“He was he was a likeable kid. Everyone liked him.”
Mrs Tascas begged the people responsible for her son’s disappearance and
alleged murder to “help us find him”.
“We need answers. Someone’s got away with murder.” she said.
“How do you live with doing something like this? Taking someone‘s life? How
do you live?”
After nearly two decades of investigating Mr Tascas’ suspicious
disappearance, Victoria Police is now offering a $1m reward for information
about those responsible for his death.
Detective Acting Inspector Tony Combridge of the missing persons squad said
the “life-changing amount of money” aimed to entice people to come forward
and do the right thing.
“I think that is a very strong incentive for people who may have moved in
these circles who have information that can open this case up for us,” he
said.
“We’ve arrived at a point where the offering of the reward is the way to
move it forward. And it’s likely to be one of the one of the only ways to
move it forward.”
Police believe the 27-year-old went missing sometime between October 7 and
10, 2005. His phone was last used on October 7, according to investigators.
Mr Tascas had been sharing an apartment with a man in Thatcher Court in the
Geelong suburb of Whittington at the time of his disappearance.
His mother officially reported him missing around six months later on April
1, 2006, after she became increasingly concerned not to have heard from him.
Mr Tascas’ disappearance has been treated as suspicious from the outset.
Police initially believed he had been murdered and investigations were
undertaken by the homicide squad, but his body has never been found.
Two years after he was reported missing, a man was charged with Mr Tascas’
murder. He was sentenced to 23 years imprisonment, but his conviction was
quashed during a subsequent appeal in 2011.
Police believe Mr Tascas was involved in an argument with another man before
he went missing. Inquiries found that a number of the 27-year-old’s personal
belongings were sold off and his dog was given away after he disappeared.
Police discovered withdrawals had also been made from Mr Tascas’ personal
bank account in July and August 2006. A woman was convicted of being an
accessory after the fact to manslaughter and obtain property by deception in
2009 and sentenced to three years in jail.
Inspector Combridge said police continued to believe Mr Tascas’
disappearance involved foul play.
“A significant investigation has been conducted over the past 16 years and
it remains our strong belief that Trevor was murdered,” he said.
“While two people have previously been charged in relation to Trevor’s
suspected death, no one has directly been held to account for his murder.”
In the years since Mr Tascas went missing, police have spoken to more than
70 people who were believed to have knowledge of the case.
An inquest into Mr Tascas’ suspicious death was held in 2020, but police
believe there are members of the public with information that could assist
the investigation.
The reward $1m reward will be paid for information leading to the conviction
of the person or persons responsible for the 27-year-old’s suspicious death.
Police are also interested in speaking to anyone who has knowledge of Mr
Tascas’ movements or interactions in the week prior to his disappearance. He
was well known in the Whittington area and police note many of his
acquaintances still live there.
“It is a unique set of circumstances, however we believe there are still
people out there who can assist us with this case and with providing
Trevor’s family with some level of justice,” Inspector Combridge said.
“While Trevor had his personal struggles, he was much loved by his family
and they are still grieving his disappearance.”
Police hope the significant financial reward will help motivate those who
were unable or unwilling to provide evidence in previous appeals.
Victoria Police 29th
July 2022
Detectives are continuing to appeal for information in
relation to the 2005 suspicious disappearance of Whittington man Trevor
Tascas.
Police believe the 27-year-old went missing some time between
7 and 10 October, 2005.
At the time he went missing, Trevor had been residing at an
address in Thatcher Court, Whittington with another man.
Trevor’s disappearance was treated as suspicious and
initially investigated by the Homicide Squad.
His body has never been located.
Investigators believe Trevor had been involved in a dispute
with his flatmate prior to his disappearance. Police have also confirmed
that after Trevor’s disappearance, a number of his personal items were sold
off and his dog was given away.
In July 2008, a man and a woman were charged in relation to
Trevor’s death, however the murder conviction was later quashed.
In July 2022, a $1M reward for new information in relation to
those responsible for Trevor’s death was announced.
