Director of Public Prosecutions v Asling (Ruling No 3)
[2017] VSC 41
•13 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0092
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN JOHN ASLING |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 February 2017 |
DATE OF JUDGMENT: | 13 February 2017 |
CASE MAY BE CITED AS: | DPP v Asling (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 41 |
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CRIMINAL LAW – Murder – Evidence — Admissibility — Evidence Act 2008 s 65(2)(d), s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC with Ms S Flynn | Solicitor for Public Prosecutions |
| For the Accused | Mr M O’Connell SC with Mr M Goldberg | Stary Norton Halphen |
HIS HONOUR:
Objection has been taken on behalf of the accused to a number of different pieces of evidence which the prosecution seeks to adduce in the forthcoming trial. I have already set out the background, to the proceeding, in two previous rulings in this case.[1] It is not necessary, for the purposes of this ruling, to repeat those facts.
[1]DPP v Asling (Ruling No 1) [2017] VSCA 37R; DPP v Asling (Ruling No 2) [2017] VSCA 38R.
Before considering the individual items of evidence that are in dispute, it is useful to make a preliminary observation. As noted by Mr M O’Connell SC, who appears with Mr Goldberg on behalf of the accused, it is unavoidable that there will be a substantial body of evidence in the trial that potentially could have an unfair prejudicial effect on the right of the accused to a fair trial. Those matters are a necessary, and inextricable, component of aspects of the proofs which the prosecution is entitled to adduce in the case. They include the fact that the accused has previously spent time in prison, that he has associated with criminals, and, in particular, that he has been involved with the alleged co-offender, Blewitt, and witness P, in the commission of criminal offences. In essence, the prosecution will seek to prove that the association between those three men was essentially one that was criminal in nature. That aspect of the proof is relevant to enhance the probabilities that both the accused and Blewitt made admissions to witness P, as to their involvement in the murder of Graham Kinniburgh, shortly after the event.
It is for that reason that, in this ruling, it is necessary for me to make a careful assessment of the degree of probative value of each individual piece of evidence, and of its potential prejudicial effect, particularly for the purposes of s 137 of the Evidence Act 2008 (‘the Act’). In considering that equation, it is necessary to bear in mind that, as the case already involves the introduction of evidence that is prejudicial to the accused, it is important not to add to or compound that prejudice by the admission of further evidence that might have that effect, unless that evidence has important probative value in the case.
It is with those principles in mind that I now turn to the individual pieces of evidence that are in dispute.
The possession by the accused of firearms
The prosecution seeks to lead evidence from both witness C and witness P that, at various times, they had observed the accused in possession of firearms. It is submitted by the prosecution that that evidence is significant. The evidence of witness A is that Williams provided to him two revolvers, which, in turn, he gave to the accused and Blewitt for the purposes of killing Kinniburgh. The forensic evidence establishes that Kinniburgh suffered two bullet wounds, namely: a bullet wound to the head from a .38 calibre revolver; and a bullet wound to the abdomen from a 9 millimetre pistol. For those reasons, it is submitted on behalf of the prosecution that it is important to prove that the accused had access to a pistol at or shortly before the time of the killing of Kinniburgh.
The evidence of witness C is that he first met the accused in prison in 2006. He states that after his release from custody in December 2007, he renewed his acquaintance with the accused. In paragraph 26 of his first statement (dated 2 March 2010) witness C states that he had seen the accused with a firearm on a few occasions, and that, in particular, on one occasion he noted that it was a .32 calibre handgun, that had a magazine. In paragraph 27 of his first statement, witness C stated that he observed the accused with the same gun at his home ‘last year’, that is, in 2009.
That evidence has no relevance to the case. The fact that the witness observed the accused with a handgun some five or six years after the death of Kinniburgh could not rationally affect the probabilities of whether the accused had access to any such weapon in December 2003. If the evidence has any probative value to that effect (which I do not consider it does), such evidentiary effect is slight, and is clearly significantly outweighed by the unfair prejudice to the accused in admission of it. I therefore rule that that evidence is inadmissible.
In paragraph 25 of his statement, witness P stated that the accused and Blewitt never discussed the fact that the accused was armed at the time of the murder, but that he had seen the accused before that with guns on plenty of occasions. On one occasion, at the St Kilda Inn, he had seen the accused in possession of a semi-automatic gun.
The evidence of witness P, to that effect, is of some probative value, because it does demonstrate that the accused, at or about the time of the killing of Kinniburgh, had access to guns. However, in the context of the case, I do not consider that it adds substantially to the Crown case. As I have already noted, the evidence will clearly demonstrate that the accused is a man with criminal associations, who himself had committed serious criminal offences. In those circumstances, the issue of the potential access of the accused to weapons, and the availability of them to him, is unlikely to be of any significance in the case.
On the other hand, the evidence, sought to be adduced by the prosecution, could potentially have a significant unfair prejudicial effect on the trial of the accused. The fact that the accused had been observed, by witness P, on a number of occasions to be in possession of a handgun, including in public places, would invite the jury to indulge in impermissible propensity reasoning. There is no suggestion that the accused had access to guns, of the type described by witness P, other than for criminal purposes. Accordingly, evidence that he was commonly in possession of such a weapon would invite the jury to reason that he was the sort of person given to committing offences, including violent offences, by use of a handgun. In my view, any direction to a jury, that it must not engage in such reasoning, would require the jury to engage in a sophisticated and fine distinction between the permissible and impermissible uses of the evidence sought to be adduced. In particular, it would be difficult for a jury to comprehend that, while it was permitted to know, not only that the accused was a criminal, but that he was commonly armed with a weapon, it would not be permitted to reason, from those two facts, that the accused was a man who was given to committing crimes with weapons.
In those circumstances, the probative value of the evidence, in paragraphs 26 and 27 of the statement of witness P, is outweighed by its potential prejudicial effect. The evidence is therefore excluded under s 137 of the Act. Accordingly, I would exclude that evidence under s 137 of the Act.
Witness C first statement paragraph 8
Witness C will give evidence that after he met the accused in prison in 2006, and while they were in prison, the accused made admissions to him that he had been involved in the killing of Kinniburgh. In paragraph 8 of his first statement, witness C states that he first met the accused, when the accused stated to him that he was a ‘mate’ of a mutual acquaintance, and that he (the accused) ‘had a message from outside to look after’ witness C.
The prosecution submits that that evidence is admissible, because it provides relevant information concerning the nature of the relationship of witness C and the accused, so as to enhance the probabilities that the accused confided in witness C by telling him about his involvement in the killing of Kinniburgh.
On the other hand, objection is taken on behalf of the defence on the basis that the evidence is of limited probative value, but, on the other hand, it has the potential to occasion prejudice to the accused, by portraying him as a ‘standover man’ in the prison environment.
In my view, the evidence is of limited probative value. There is no suggestion that, after their first meeting, the accused did in any way provide any protection or assistance to witness C. The remark made by the accused to witness C is thus part of the initial introduction to their relationship, and no more. On the other hand, I accept that the evidence does have unfair prejudicial potential, because it portrays the accused as a man who purported to act as a protector or standover person in prison. The probative value of the evidence is outweighed by its prejudicial effect, and thus, pursuant to s 137 of the Act, I exclude it.
Witness C second statement paras 5, 6 and 12
Witness C made a second statement dated 8 February 2016. In that statement, he details further admissions made to him by the accused after they had both been released from prison, and after they had renewed their acquaintance. In paragraph 5 and 6 of the statement, witness C states that the accused told him that both he and Blewitt had been shot by Kinniburgh, that the accused showed to witness C a scar on his back, and that the accused also stated that when the police first charged him they did not see the scar, because they only looked at the front of his body. In paragraph 12, witness C provided a more detailed description of the killing of Kinniburgh, stating that he and Blewitt ambushed Kinniburgh, and that in the ensuring cross fire Kinniburh hit both the accused and Blewitt with bullets before they ‘finished Kinniburgh off by shooting him’.
It is submitted on behalf of the prosecution that that evidence has additional probative value, above the evidence of witness C as to the admissions made to him by the accused while they were in prison. In particular, it is submitted that the admissions made by the accused while in jail might, arguably, be characterised as an attempt by the accused to aggrandise his reputation in the eyes of his fellow prison inmates. On the other hand, the admissions, that are referred to in witness C’s second statement, were made after his release from jail, and therefore were not affected by that consideration.
To that extent, the evidence does have probative value. However, in the context of the case, it does not add substantially to the prosecution case. As I understand it, the principal issue will be whether the accused made admissions to witness C, and not whether those admissions were truthful or otherwise. On the other hand, the introduction of the evidence, of matters stated by witness C in his second statement, will necessarily involve a considerable difficulty for the defence. The evidence in the trial will be that Blewitt was last seen by his girlfriend (Kathleen Stanton) on 12 April 2004. Other evidence will demonstrate that, on that date, the accused, Blewitt and witness P travelled to the north of Victoria. There is other evidence — which will not be admitted in the trial — that together they there attempted to commit an aggravated burglary of premises. Their enterprise went awry, and, while the three men attempted to decamp, Blewitt was fatally shot. In his second statement, witness C states that the accused described to him how he concealed Blewitt’s body by having it buried by use of an excavator. Blewitt’s body was not recovered until 2016, when it was unearthed in Thomastown. In his second statement, witness C states that his memory, of the matters that are contained in that statement, was triggered by the finding of Blewitt’s body, because the accused had described to him how he had buried Blewitt’s body.
None of those matters, of course, will be adduced in evidence in the present trial. However, if witness C were permitted to give evidence of the admissions made by the accused, relating to the killing of Kinniburgh, that are detailed in the second statement, counsel for the accused would be significantly hamstrung in seeking to contest that evidence. In particular, counsel would not be able to venture, at all, into the question as to why witness C had omitted those matters from his first statement, which was made only two or so years after his release from prison. The omission of those matters, from the first statement, is a matter of some significance. It calls for an explanation. However, it would be most hazardous for counsel for the accused to seek to explore that matter, in order to contest the credibility and reliability of witness C’s evidence, as to the admissions which he claims were made to him by the accused, and which are detailed in the second statement.
In my view, that circumstance is a matter of significant prejudice to the right of the accused to a fair trial. While as I stated the additional admissions made to witness C are of probative value, I consider the probative value of that evidence is outweighed by the prejudicial effect of the introduction of it. Accordingly I exclude it under s 137 of the Act.
I should add one qualification to the foregoing, namely, that the question of the admissibility of those parts of witness C’s second statement may become enlivened, if the defence embarks on any line of cross-examination of witness C that should make them otherwise relevant. For those reasons, no doubt, counsel for the accused will need to take particular care in how they address their cross-examination of witness C in order to avoid that consequence.
Witness C second statement paragraph 13
The prosecution also seeks to adduce evidence from witness C, contained in paragraph 13 of his second statement, that in the conversations which they had after their release from jail, the accused told him that the reason why he and Blewitt killed Kinniburgh was that Kinniburgh allegedly masterminded an armed robbery at the airport, but when it went wrong, they blamed Kinniburgh for setting them up and telling the police.
For the reasons that I have set out in relation to the admissions detailed in paragraphs 5, 6 and 12 of the statement, I would also exclude the matters contained in paragraph 13 of witness C’s second statement. In addition, and apart from those considerations, I would have excluded the evidence in any event. The assertion, that the accused had been involved in an armed robbery at the airport which went wrong, would, obviously, have significant prejudicial potential for the accused. The probative value of the evidence contained in paragraph 13 would be outweighed by that prejudicial effect. Accordingly I exclude the contents of paragraph 13 of witness C’s second statement pursuant to s 137 of the Act.
Witness A statement paragraph 5
Counsel for the accused has raised some matters as to the form in which the matters, contained in paragraph 5 of witness A’s statement, are to be led. In particular, it is not clear whether some of the matters contained in that paragraph are matters stated to witness A by Williams (which would be admissible), or whether they are conclusions or inferences drawn by witness A from the conduct of Williams (which would not be admissible). Apart from those matters, objection is also taken to the third last sentence in paragraph 5 in which witness A stated that he introduced the accused to Williams ‘because (the accused) had a hatred of the Morans’.
In my view that evidence is clearly inadmissible. Witness A does not make it clear how he knew that the accused hated the Morans. Thus it is not demonstrated that that evidence is other than hearsay. The fact that witness A knew (or believed) that the accused hated the Morans is irrelevant.
I therefore rule that the evidence of witness A that the accused hated the Morans, is not admissible.
Witness P paragraph 7
In paragraph 7 of his statement, witness P described how, after he, Blewitt and the accused became friends, they began to trust each other, and started to discuss doing burglaries and robberies, and ‘anything else we could do to make money’. In paragraph 10 he stated that when he and the accused stole the blue Ford vehicle, it was intended that it be used for burglaries and robberies, and that they discussed places which they could rob.
Mr O’Connell has accepted that it will be necessary for the prosecution to establish that the relationship between the accused and witness P was in the background of both of them being involved in criminal offences, and both of them discussing and planning the commission of crimes together. He argued, albeit briefly, that, for the purpose of adequately portraying the nature of the relationship, it is not necessary for the prosecution to prove that the crimes discussed and planned between the accused and witness P included robberies.
In my view, the evidence as to that effect is relevant and of some significant probative value. The evidence of witness P is of significant importance in the trial. The central question in relation to his evidence is whether the accused, and Blewitt, each revealed to witness P their involvement in the murder of Kinniburgh. Thus it is significant for the prosecution to be able to establish that the relationship between witness P and the accused (and Blewitt), was one of trust, in which they were, in effect, close partners in crime together. As part of that proof, it is relevant for the prosecution to prove that the accused and witness P were partners, not only in petty crime, but in committing offences that were quite serious. That factor would enhance the degree of trust and understanding between the men, which, the prosecution submits, provides an important understanding as to why the accused and Blewitt might have felt no constraint in telling witness P about their involvement in the murder of Kinniburgh.
For those reasons, I accept the submission by Mr A Tinney SC, who appears with Ms S Flynn on behalf of the prosecution, that the evidence, sought to be adduced, is of significant probative value. I accept that it does have prejudicial potential. However, that potential can be reduced by an appropriate direction to the jury that they must not engage in impermissible propensity type reasoning that, because the accused was a person involved in committing burglaries and robberies, he was the type of person who might have been involved in the murder of Kinniburgh. In my view such a direction would be clear, it is a direction that is commonly given to juries, and I would be confident that a jury would have little difficulty in understanding it and adhering to it. In those circumstances, I rule that the evidence, as to the involvement of the accused and witness P in the commission of robberies, is admissible.
I add one caveat to that ruling. In paragraph 10 of his statement, witness P describes a plan by himself, the accused and Blewitt to rob an Armaguard van near Melton. Mr Tinney has properly accepted that the prosecution will not lead that evidence, as it would be unfairly prejudicial to the accused, and is necessary for the purposes for establishing the nature of the relationship between the accused, Blewitt and witness P.
Witness P statement paragraph 7: car theft
In the balance of paragraph 7 of his statement, witness P, in some detail, describes how he and the accused, in 2002 or 2003, stole a vehicle in St Kilda, and then left it at another location near the Port Melbourne Bowling Club, as a ‘safe place’, so that it could be used in subsequent offences. Objection has been made on behalf of the accused to the admission of that evidence.
The prosecution submits that the evidence is relevant for two purposes. First, it is submitted that it is relevant, because it provides further detail as to the relationship between the accused and witness P, which, it is contended, is relevant to the probabilities as to whether the accused confided in witness P that he had murdered Kinniburgh. In my view, the evidence is not relevant for that purpose. The fact that the two men engaged in the theft of a motor vehicle, on one occasion, is of little value in portraying the type of relationship that existed between the accused and witness P, and to which I have just referred. Insofar as it has any probative value, it is outweighed by the prejudicial effect of it to which I shall shortly refer.
The prosecution has also submitted that the evidence is relevant, because it is a piece of ‘circumstantial evidence’. In particular, it concerns the circumstances of the theft of a vehicle, and the parking of it in a ‘safe location’ for later use in crimes, which, it is submitted, is similar to, and relevant to, the evidence of witness P that he and the accused stole the Ford vehicle, and stored it in a different location using a similar method.
Thus stated, it is clear that the prosecution seeks to adduce the evidence to prove a ‘tendency’ that the accused and witness P had to steal, store and use vehicles in a particular way, in order to enhance the probability that the accused and witness P stole and stored the Ford, which was later (according to the prosecution) used in the murder of Kinniburgh. Mr Tinney disavowed seeking to adduce the evidence as ‘tendency evidence’, and indeed he would not be permitted to do so, since notice of it has not been given to the defence as required by s 97(1)(a) of the Evidence Act. In my view, however, the use that the prosecution wishes to make of the evidence is that of ‘tendency evidence’, namely, as circumstantial evidence directed to the probabilities of the accused and witness P stealing and using the Ford vehicle in the manner described by witness P.[2]
[2]R v Cittadini (2008) 189 A Crim R 492, 495 [22]–[23]; R v PWD (2010) 205 A Crim R 75, 86-87 [59]–[63]; Elomar v R & Ors (2014) 316 ALR 206, 278 [359].
For those reasons, the evidence is not relevant, and is not admissible. Further, if the evidence were admitted, it would involve some unfair prejudice to the accused, because it would invite the jury to engage in impermissible propensity reasoning. More significantly, for reasons outlined in submissions, it would also involve a degree of collateral inquiry concerning the alleged car theft, which would distract the jury and divert them from their task. For those reasons, the evidence is not admissible.
Witness P statement paragraph 11
In paragraph 11 of his statement, witness P states that he and the accused would always burn stolen motor vehicles after using them in a job, because they were aware that their DNA was on police files. He said that the stolen car would be burnt before getting into a ‘safe car’, which was one of the cars that they used.
Mr Tinney submitted that the evidence is admissible for two reasons. First, again, it portrays the level of the relationship between the accused, Blewitt and witness P. Secondly, Mr Tinney described the evidence as a piece of circumstantial evidence, which was relevant, because, after the killing of Kinniburgh, the stolen blue Ford vehicle was found nearby in a burnt state.
In my view the evidence is not admissible. It does not materially enhance the prosecution case as to the nature of the relationship between the accused, Blewitt and witness P, for the purpose of enhancing the probability that the accused and Blewitt each confided in witness P as to their involvement in the killing of Kinniburgh. Further, it would seem that, despite the contention of Mr Tinney to the contrary, the prosecution is seeking to use the evidence as tendency evidence. In essence, the prosecution seeks to establish that, because the accused, Blewitt and witness P were given to burning stolen vehicles after they had committed a crime using those vehicles, they (or at least the accused and Blewitt) were the persons involved in the burning of the Ford vehicle immediately after the killing of Kinniburgh. That line of reasoning is clearly tendency reasoning. The prosecution has not given notice of an intention to adduce the evidence as tendency evidence, and Mr Tinney disavowed an intention to do so. The use of the evidence in that way is therefore impermissible.
For those reasons, the evidence is not relevant. If it does have any probative value, it is outweighed by the risk of the jury engaging in the type of tendency reasoning, that I have outlined above, which would not be permitted in this case. Accordingly, I exclude that evidence.
Witness P statement paragraph 11 — use of Ridge vehicle
In paragraph 11 of his statement, witness P also states that the accused, Blewitt and he used Stuart Ridge’s Hyundai Excel ‘on one job but had borrowed it at other times’. Objection has been taken on behalf of the accused to the reference by the witness to using the vehicle ‘on one job’. It is submitted that that evidence emphasises the fact that the accused has been involved in the commission of criminal offences.
In my view, the evidence is admissible. Immediately after the killing of Kinniburgh, two men were seen to leave the scene in a vehicle described by one witness as a green Hyundai Excel vehicle. The fact that the accused and Blewitt felt free to use Ridge’s green Hyundai Excel vehicle, not only for every day purposes, but also for criminal purposes, is a relevant fact in the case. It does enhance the probabilities that the persons driving the vehicle that left the scene of the murder were the accused and Blewitt. To that limited extent, it is relevant. I do not consider that any additional prejudice is occasioned to the accused by the introduction of that evidence, given that the prosecution will, as I have stated, be adducing evidence as to the involvement of the accused in crimes such as burglaries and robberies. Accordingly the evidence is admissible.
Evidence of Kathleen Stanton
As I stated, Kathleen Stanton was, at the time, the partner of Blewitt. In her statement, she states as follows:
Terry would talk about some of his activities with me when he was drunk. When he sobered up, he would ask me what he had said. I would deny that he told me anything. One such occasion was:
Around January or February 2004, Terry was very drunk one night and again was talking about things that he wouldn’t normally talk about. I vividly remembered Terry telling me, ‘Graham let a couple go before he went down’. … Terry wouldn’t normally talk to me about criminal associates when he was sober. He told me that it was his way of protecting me.
Mr Tinney submitted that that evidence is admissible, because Blewitt could not have known that Kinniburgh had fired shots, before he died, unless Blewitt was present at the murder. Thus it is submitted the evidence is relevant to prove that Blewitt was one of the co-offenders involved in the murder of Blewitt.
As I pointed out in the course of submissions, it would seem to me that the evidence is essentially hearsay. The prosecution seeks to rely on the statement made by Blewitt to Stanton as conveying the implied representation that he was present at the murder of Kinniburgh. Mr Tinney submitted that if that is so, the evidence is admissible under s 65(2)(d) of the Act, which I have discussed in my earlier ruling[3].
[3]DPP v Asling (Ruling No 2) [2017] VSCA 38R
In particular, Mr Tinney submitted that the statement was made by Blewitt to Kathleen Stanton in circumstances that made it likely that the representation is reliable, so as to satisfy the requirement of s 65(2)(d)(ii) of the Act. He relied on the following factors: the relationship between Blewitt and Stanton; the fact that Blewitt was ordinarily quite discreet about discussing his criminal conduct with Stanton; that he spoke to her about the topic when he was intoxicated; and that the conversation took place only one or two months after the murder of Kinniburgh.
In my view, the evidence is hearsay. It is sought to be relied on by the prosecution as an implied representation by Blewitt to Kathleen Stanton that he was present at the murder of Kinniburgh. I do not consider that the circumstances, in which the representation was made, make it likely that the representation was reliable. As pointed out by Mr O’Connell, in her statement, Ms Stanton said that at that time, the relationship between her and Blewitt had deteriorated such that she wanted to leave him. Thus the relationship was not one of close and trusting partners. Further, the fact that Blewitt was intoxicated, if anything, reflects adversely on the reliability of the evidence. It certainly does not enhance its reliability, but only provides an explanation why Blewitt might have spoken to Stanton about the killing of Kinniburgh. As pointed out by Mr O’Connell, Stanton’s witness statement provides no context to the conversation other than that Blewitt was very drunk one night. Taken together, those circumstances do not enable me to make an affirmative judgment that the circumstances in which Blewitt spoke to Stanton was such as to make it likely that the representation was reliable. Accordingly, the evidence is not admissible under s 65(2)(d) of the Act.
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