Citation: R v Michael Phillip Martin; R v Candace Martin [2017] NSWSC 1106
Court: Supreme Court of New South Wales
Date: 22 August 2017
Judge(s): Hamill J
Background
A husband and wife stood jointly charged on an indictment alleging attempted murder, causing grievous bodily harm, and murder of the husband's father. The prosecution case was that the two accused entered a joint criminal enterprise, motivated in part by life insurance policies totalling $2.5 million taken out on the deceased's life. The husband was alleged to have procured a third party to carry out an initial stabbing attack in April 2014, and to have personally stabbed his father to death in June 2014. The wife, prior to trial, pleaded guilty to two counts of accessory after the fact, while maintaining she was not part of any joint enterprise to kill.
The central evidentiary issue arose from a lengthy, emotionally discursive letter that the husband wrote to his wife in late February or early March 2015, while both were held in custody. The Crown sought to tender the wife's failure to rebut certain inferences in that letter as a tacit admission of her involvement in the offences. The wife also applied for a separate trial from her husband.
Legal Issues
- Whether the wife's failure to refute inferences in the husband's letter constituted a tacit admission by silence, making that silence admissible as evidence against her
- Whether the wife's attempt to retrieve the letter, and her lies to police about knowledge of it, were admissible on a different basis
- Whether the wife should be tried separately from her husband, having regard to the different ways the letter would be used in each accused's case and the overall interests of justice
Decision
On the tacit admission question, Hamill J ruled that the wife's silence in response to the husband's letter did not amount to an admissible admission. The principles governing tacit admissions require that the circumstances be such that a reasonable person would naturally be expected to deny or respond to the statement if it were untrue. The letter was long, emotionally discursive, and focused predominantly on the couple's romantic history. Its inferences about the wife's involvement were not sufficiently direct or clear to make her silence a natural acknowledgment of guilt.
The court also noted that the relationship between the accused as a married couple, and the context of custodial correspondence, were circumstances that diminished any inference that silence meant agreement. Where the surrounding circumstances do not clearly call for a denial, silence cannot reliably be treated as an admission.
However, the court held that the wife's conduct in attempting to retrieve the letter, and her false denials to police about her knowledge of it, were admissible on a different basis. That conduct was probative of consciousness of guilt and could be placed before the jury for that purpose, even though the silence itself could not be used as an admission.
On the separate trial application, Hamill J ordered that the wife be tried separately from her husband. The letter would need to be used differently in each accused's trial: in the husband's case as a direct admission by him, and in the wife's case only as evidence of consciousness of guilt through her subsequent conduct. The court found that a joint trial carried a real risk of embarrassment or prejudice to the wife in the conduct of her defence, and that the interests of justice favoured separation.
Orders Made
- The letter and the responsive text message are not admissible as an admission by Candace Martin
- Evidence of Candace Martin's attempt to retrieve the letter, and her lies to police about it, are admissible as evidence of consciousness of guilt
- Candace Martin is to be tried separately from Michael Phillip Martin
Key Takeaways
- A tacit admission by silence requires circumstances in which a reasonable person would naturally be expected to deny a statement if it were untrue. A long, emotionally discursive letter does not readily satisfy that threshold, particularly where the incriminating inferences are indirect.
- The marital relationship between co-accused and the context of custodial correspondence are relevant circumstances when assessing whether silence in response to a letter carries the quality of an admission.
- Where silence itself is inadmissible as a tacit admission, subsequent conduct relating to the same communication (such as attempting to retrieve a letter or lying about its existence) may still be admissible to prove consciousness of guilt, on a distinct evidentiary basis.
- Separate trial applications in joint prosecutions turn substantially on whether the interests of justice require separation. A significant factor here was that the same piece of evidence would serve fundamentally different evidentiary purposes in each accused's trial.
- Hamill J confirmed that co-accused jointly charged as participants in a common criminal enterprise are ordinarily tried together, but that this default position yields where a joint trial would embarrass or prejudice one accused in the conduct of their defence.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Guimond v The Queen (1979) 44 CCC (2d) 481
- Mundey v Askin [1982] 2 NSWLR 369
- R v Freeman, unreported NSWCCA 18 December 1986
- R v Grills (1910) 11 CLR 400; [1910] HCA 68
- R v Middis and Ors, unreported SC (NSW), 27 March 1991
- R v MMJ [2006] VSCA 226
- R v Pham [2004] NSWCCA 190
- R v Roff [2015] NSWSC 1853
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259
- Redman v R [2015] NSWCCA 110
- Symss v R [2003] NSWCCA 77
- Thatcher v Charles (1961) 104 CLR 57; [1961] HCA 5
- The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32
- Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23