MAN CHARGED WITH MURDER WHERE THE PROSECUTION’S CASE DEPENDS ON A CONFESSION ALLEGEDLY MADE BY THE DEFENDANT TO A DRUG USER WITNESS
R v Carmichael [2020] QSC 326 (28 October 2020)
This is a murder case against Carmichael where the case of the defendant isdepends on a confession made by the accused to a Ms Messer who is a drug user.
Facts:
The defendant is charged with the murder of Gregory John Armrtrong. Mr Armstrong went missing around the time of his birthday on 7 May 1997. The admissions, including his disappearance without taking any personal papers, the absence of any banking transaction after 7 May 1997, his lack of contact with family and friends and the evidence in general all lead to the conclusion that Mr Armstrong probably died in May 1997.
Ms Messer is a critical witness for the prosecution since she is the only witness to whom the defendant is alleged to have confessed to killing Mr Armstrong. The prosecution case depends upon acceptance of her evidence that such a confession was made.
In further evidence-in-chief Ms Messer reiterated her recollection of being told by the defendant that before the shooting Mr Armstrong was egging the defendant on, doubting that he would pull the trigger and saying things like “Go on, then. Pull the trigger. Shoot me. Shoot me”. She also reiterated that, after being told about these things, she asked the defendant “Where’s the body? Where’s the gun?”, and was told that they were still out there, to which she just said “Well, you better go deal with them”.
Ms Messer could not recall when the defendant left her home. She could not say whether it was after half an hour or an hour. She could not even say whether the sun was up when he left, or whether her children were awake.
The Crown submits that Ms Messer gave a plausible, reasonable and truthful explanation as to why she did not mention anything about the defendant’s confession to police or the QCC. In short, she explained that she was living the life of a drug addict and a criminal and had a lot to hide. She finally told the authorities about the confession because of her realisation that “it just needed to end”. In her evidence she rejected the idea that she came forward because a $250,000 reward was on offer. She said that it had no relevance to her then or now.
Issue: Is the testimony of Ms. Messer sufficient to convict the accused of murder?
Law:
- R v Pentland [2020] QSC 231
- Watson v Foxman (1995) 49 NSWLR 315
Analysis:
Because of the serious reservations which the court has about the credibility and reliability of her evidence in general and of her evidence about the defendant’s alleged confession to her in particular, the court not satisfied that any such confession was made to her by the defendant.
It is possible that the suspicion that the defendant had killed Mr Armstrong became embellished with a story of how he had done so in the company of his associates at the Jew Hole. It is also entirely possible that such a rumour, which included Les Ryan as part of the narrative, reached Mr Ryan, and he told Ms Messer about it one night when they were shooting up on heroin together. Ms Messer was a bad drug addict at the time. She may have misunderstood what Mr Ryan said to her when they were sharing heroin on that occasion. He may have been telling her about a rumour and in their drug affected state she may have understood him to be giving a first-hand account of events. At some stage she must have reflected on her conversation with Mr Ryan. Alternatively, her recollection or reconstruction of the conversation may have led her to confuse what he had said as a first-hand account, rather than recounting a rumour.
This was the version which she gave to police on 20 August 1998 in which she recounted what Les Ryan had told her. She did not tell police that the defendant had confessed to her at around the same time. In fact, she told police that he had never spoken to her about what had happened and that she had never let on to him that she knew what Les Ryan had told her. If Ms Messer is to now be believed, she was lying to police when she said that the defendant had not confessed to her.
Her eventual disclosure to police in 2012 of his alleged confession comes against the background of admitted lies. As discussed, the explanations which Ms Messer gave for reporting the confession to police for the first time in 2012 are unconvincing.
Conclusion: The court hereby declares the accused not guilty for the crime of murder.
