Director of Public Prosecutions v Clifford (Ruling No 2)
[2025] VSC 157
•31 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0018
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| BAILEY CLIFFORD | Accused |
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JUDGE: | INCERTI J |
WHERE HELD: | Geelong |
DATE OF HEARING: | 26 March 2025 |
DATE OF RULING: | 31 March 2025 |
CASE MAY BE CITED AS: | DPP v Clifford (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 157 |
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CRIMINAL LAW – Evidence – Accused charged with murder – Tendency evidence – Whether tendency evidence sought to be adduced by prosecution concerning previous convictions of accused admissible – Whether tendency evidence sought to be adduced by prosecution concerning admissions supposedly made by accused admissible – Evidence Act 2008 (Vic) ss 97, 101.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C Parkes | Office of Public Prosecutions |
| For the Accused | Ms M O’Brien | Geelong Lawyers, Barristers and Solicitors |
HER HONOUR:
Bailey Clifford (‘the accused’) is charged with the murder of Paul Grapsas (‘the deceased’) and two charges of theft. The charges arise out of events alleged to have occurred on 14 and 15 September 2023 in Geelong. The accused does not dispute that he stabbed the deceased. However, he does dispute that precise events which transpired immediately before the deceased was injured, and the manner in which the deceased was injured, and argues that he was acting in self-defence (albeit that his actions were excessive in the circumstances). Specifically, the accused disputes that he was carrying the knife that was used to stab the deceased prior to the incident.
The accused faces a trial before a jury, due to commence on 31 March 2025. He has indicated that he intends to plead guilty to manslaughter at the commencement of the trial.
Prosecution case
The prosecution’s case for murder is put on the basis that the accused armed himself with a knife and stabbed the deceased seven times with murderous intent. To understand this case, and to provide context to the tendency evidence submissions below, consideration of pertinent parts of the prosecution chronology is relevant.
At some point after 10pm on 14 September 2023, the deceased left his home and took his dog for a walk; an activity the deceased regularly undertook at night. The walk would usually take the deceased around an hour and followed a route along Western Beach Road to The Esplanade, and from Mercer Street into Malone Street. He had the key to a Mitsubishi Lancer sedan which was registered in his wife’s name, but was used by the deceased when the deceased was on his own (as distinct from use for the family), along with keys to the house.
At 10:32pm, the accused was captured on CCTV cameras walking south along Western Beach Road, attempting to gain access to parked cars by pulling on their door handles.
At 10:37pm, the accused walked west from Western Beach Road towards Malone and Cavendish Streets.
At some point after 11:09pm, the deceased was captured on CCTV cameras walking his dog south on Mercer Street over Malone Street.
The accused, meanwhile, had approached the deceased’s Mitsubishi Lancer, which was parked on Malone Street, and gained access to the vehicle. He searched its interior to locate items to steal.
The deceased returned to the rear of his house in Malone Street and saw the accused inside the Mitsubishi Lancer. He walked up to the car, confronted the accused, and attempted to stop the accused stealing his property. The accused then produced a knife and stabbed the deceased seven times. Stab wounds were inflicted to the deceased’s rear left ear, chest, right middle finger, left hip, lower back, mid-back and upper-back. The precise injuries sustained by the deceased were:
·first, an oblique linear stab injury to the left post auricular region (behind the left ear), measuring 1.5cm;
·second, an oblique superficial stab injury to the midclavicular region (chest), 6 cm to the left of the midline, measuring 0.5cm;
·third, a sharp force injury through the distal interphalangeal joint of the right middle finger, resulting in a flap and measuring 2cm by approximately 1.8cm;
·fourth, a transverse stab injury to the left hip, measuring 1.5cm;
·fifth, a transverse sharp force injury to the lower back in the midline, 101cm above the heel, measuring 0.4cm;
·sixth, an oblique stab injury to the left mid-back, 118cm above the heel and beginning 8cm to the left of the midline at the lower aspect of the injury and 10cm to the left of the midline at the upper aspect of the injury, measuring 2cm; and
·seventh, and finally, a transverse stab injury to the left upper back, 133cm above the heel and beginning 12cm to the left of the midline, measuring 2cm.
The final injury was the deceased’s cause of death. This injury extended acutely downwards, for a distance of 13cm through skin and soft tissues into the chest cavity and into the lung, dividing a luminary vein. It resulted in a left tension pneumo-haemothorax and was associated with blood within the airway.
The deceased was gravely injured and collapsed onto the ground next to the vehicle, with his legs under the car on an almost 45 degree angle between the front and rear passenger doors in line with the centre pillar.[1] The accused stole his car key and wallet and ran from the scene.
[1]Depositions, 479 [5] (Senior Constable Goullet’s statement dated 19 December 2023).
Between 11:30pm and midnight, the accused called his friend Tye Brunt using Snapchat on his mobile phone. Mr Brunt was woken by the call. Mr Brunt stated:
Bailey was breathing really heavy. Bailey said he had really fucked up. I knew something was horribly wrong by the way he was breathing. I said, “what did you do?”. Bailey said, “I think I killed someone, I stabbed them”. My instant words was, “call the fucking the ambulance. Is he moving?”. Bailey was crying and struggling to speak. Bailey said he couldn’t call the ambulance. I think that was because he didn’t want to get caught. Bailey said he was walking away.[2]
[2]Depositions, 374 [5] (Mr Brunt’s statement dated 29 September 2023).
The accused asked Mr Brunt if he could come over to Mr Brunt’s house. Mr Brunt agreed and the accused said he would catch and Uber and be an hour. At 12:01am on 15 September 2023, the accused was captured on CCTV cameras walking south through the Geelong Waterfront skatepark towards Cunningham Pier.
At 12:03am, the accused arrived at Cunningham Pier and sat next to the toilet block.
At 12:07am, the accused ordered an Uber to pick him up from Cunningham Pier.
At 12:19am, the accused was picked up and requested to be dropped off in the vicinity of 2183 Warralily Boulevard, Armstrong Creek (being Mr Brunt’s address).
At 12:33am, the accused arrived at Mr Brunt’s home. Mr Brunt let the accused in the front door, before they went to the garage, where Mr Brunt asked ‘what the fuck have you done?’ The accused started to cry. The accused then told Mr Brunt the following:
(a) he had been breaking into cars that night;
(b) he had entered and sat in an unlocked car, had a torch with him, and had his left out of the door of the unlocked car;
(c) a man had run towards him yelling ‘I’m going to kill you’;
(d) the man came up to him and started laying punches into him, putting his left hand on the roof of the car and using his right hand to punch the accused;
(e) the accused became really scared, pulled out his knife and stabbed the man twice to the chest in a downward motion;
(f) the accused said it was twice, really quick, and described the stabbing as ‘bang, bang’;
(g) the accused said that he thought he got the man in the chest;
(h) the man landed on the road in between the car and the gutter, and did not move after that;
(i) the accused then ran away; and
(j) the accused said that the man was dead.
Mr Brunt was in shock and terror. He told the accused that he needed to hand himself into police. The accused kept crying and said that he could not hand himself in. Mr Brunt asked the accused if he still had the knife. The accused said yes, and pulled out the knife. It was a fishing knife with a black and blue coloured handle and had a sheath on it. The blade was around 15cm. Mr Brunt asked the accused whether there was blood on it. The accused then held up the knife and showed him the blade which had what appeared to be blood on it. Mr Brunt told the accused to take the knife and not leave anything at Mr Brunt’s house. The accused put the knife back in its sheath and returned it to his bumbag.
Mr Brunt then asked the accused whether he had stolen anything from the car. The accused removed a car key and wallet belonging to the deceased from his bumbag. Mr Brunt asked, and told, the accused ‘what the fuck, just put it away’. The accused returned the key and wallet to his bumbag.
The accused and Mr Brunt sat for a few minutes, with the accused organising for someone to pick him up. The accused then left Mr Brunt’s home. As he was leaving, Mr Brunt told him again to hand himself in, and not to go out and do anything stupid. The accused responded, saying he could not hand himself in.
At 7:20pm on 15 September 2023, the accused met Mr Brunt on the Surf Coast Highway, at a bus stop near to Mr Brunt’s home. Mr Brunt informed the accused that he had seen on Facebook that a body had been found in Geelong; he said to the accused ‘you killed him’. The accused started crying and hugged Mr Brunt, who told the accused that he needed to the right thing. The accused said that he could not do that and that he was too scared.
The pair left the bus stop. Mr Brunt asked the accused what he had done with the knife. The accused said that he had gotten rid of it, and indicated, once they reached a point between Romley Avenue and Ambarella Way, that he had ‘buried it in there’ (indicating towards some bushes on the left).
Tendency
On 25 October 2024, the prosecution filed a ‘Notice: Tendency Evidence’ (‘Tendency Notice’). In short, the prosecution relies on evidence of previous criminal charges that the accused pleaded guilty to and to which he was sentenced to a Community Correction Order, and evidence given by Tye Brunt at the pre-trial hearings[3] in this matter. The prosecution says that this evidence demonstrates the accused has the tendency to:
(a)act in a particular way, namely arm himself with a knife when committing theft [or attempting to commit theft][4] from a motor vehicle, at night and use the knife if confronted during the theft; and
(b)have a particular state of mind, namely an intention to arm himself with a knife when committing theft [or attempting to commit theft][5] from a motor vehicle and to use the knife if confronted.
[3]Conducted pursuant to s 198B of the Criminal Procedure Act 2009 (Vic).
[4]The ‘Outline of Prosecution submissions on tendency evidence’ filed 13 March 2025 foreshadowed, at [6], an application for leave to amend the prosecution’s Tendency Notice to include the italicised words. No formal application was made, nor was anything said on the matter. I consider that the inclusion of the phrase ‘or attempting to commit theft’ makes no difference and would have found the evidence is not admissible as tendency evidence, had the application for leave to amend been pursued, in any event.
[5]See footnote above.
The issues the prosecution submits this tendency are relevant to are:
(a) whether the accused was in possession of his own knife during the relevant period;
(b) whether the accused used his own knife to stab the deceased; and
(c) to rebut any assertion by the accused that he armed himself with a knife located at the scene of the stabbing and used that knife to stab the deceased.
In submissions filed on 14 March 2025, the accused objects to the admission of the tendency evidence and submits that it does not have significant probative value within the meaning of s 97(1)(b) of the Evidence Act 2008 (Vic) (‘Evidence Act’) and, in the alternative, that it should be excluded under s 101 of the Evidence Act.
Applicable law
Section 97(1) of the Evidence Act provides that:
Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The accused has not challenged compliance with the notice requirements under s 97(1)(a) of the Evidence Act. The sole issue before the Court is therefore whether the relevant tendency evidence will have ‘significant probative value’ for the purposes of s 97(1)(b).
The ‘probative value’ of evidence is ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[6] This requires the consideration of two interrelated but separate matters:
The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence…In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[7]
[6]Evidence Act s 3 Dictionary Part 1 ‘probative value’.
[7]Hughes v The Queen (2017) 263 CLR 338, 356–7 [41] (Kiefel CJ, Bell, Keane and Edelman JJ) (‘Hughes’).
In DPP (Vic) v Roder (a pseudonym),[8] the High Court unanimously held:
In Hughes v The Queen, the majority in this Court explained that with tendency evidence, “[t]he trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to [determining] the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue” (emphasis added). The process of reasoning involved is similar to the manner in which an assessment of the significant probative value of the evidence is undertaken by the trial judge for the purpose of determining its admissibility, namely, by first assessing the strength of the evidence in establishing the tendency and then considering “the extent to which the tendency makes more likely the elements of the offence charged”. In the language of Shepherd, the tendency is an “intermediate fact” that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the offence.[9]
(Footnotes removed.)
[8](2024) 307 A Crim R 283.
[9]Ibid 290 [24] (The Court).
Relevantly, in TL v The King,[10] the High Court unanimously held that:
There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of “significant probative value”. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning.[11]
(Citations removed.)
[10](2022) 275 CLR 83.
[11]Ibid 95–6 [29].
For completeness, s 101(2) of the Evidence Act relevantly states:
Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Tendency evidence may occasion prejudice to an accused for the purposes of s 101 of the Evidence Act in a number of ways, for example:
The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.[12]
[12]Hughes, 349 [17] (Kiefel CJ, Bell, Keane and Edelman JJ).
Evidence
The prosecution seeks to adduce two items of evidence in support of the alleged tendency:
(a) Item 1: evidence that the accused pleaded guilty to charges including attempted theft, possession of a controlled weapon without lawful excuse, and assault with a weapon arising out of an incident in Belmont on 24 April 2023 in which the accused was confronted when attempting to steal from a vehicle and pulled a knife, pointing it at the victim; and
(b) Item 2: evidence from Mr Brunt regarding admissions made to him by the accused that he had been breaking into cars on the night of the deceased’s death, that he was confronted by the deceased, and that during this confrontation he had pulled out ‘his’ knife and stabbed the deceased, and further evidence from Mr Brunt that he knew the accused to carry and conceal knives.
Item 1
As set out in Tendency Notice, the prosecution summarises the substance of this evidence as:
The victim, Mitchell De Man decided to go for a drive at around 2:45am – 2.50am on the 24th of April 2023. He went to his car which was parked in his garage and opened the garage door. He could see his other vehicle, a Holden Commodore, which was parked on the nature strip. He saw the accused’s legs hanging out of the passenger side door of that vehicle. The accused was searching through the centre console of the car. The victim started screaming at the accused to “get here" and the accused ran around the car and down Clyde Street towards Francis Street. The victim ran after him. The accused almost reached the corner of Francis Street and then he turned around and produced a knife, pointing it at the victim. The accused then stumbled and dropped the knife, at which point the victim tackled him to the ground. The accused managed to get up and tried to run away but the victim restrained him and neighbours called the police.
Police arrived and arrested the accused and he was found to be in possession of a knife.
He was also in possession of a bag containing numerous stolen items.
The knife that was produced was found by police on the ground at the intersection of Clyde and Francis Streets.
The accused was later charged.
The accused pleaded guilty to the following offences:
1.Attempted theft
2.Dealing with property suspected of being the proceeds of crime
3.Possession of a controlled weapon without lawful excuse
4.Assault with a weapon
5.Committing an indictable offence whilst on bail
The accused was sentenced on the 6th of June 2023 at Heidelberg Magistrates’ Court to a Community Correction Order for a period of 12 months on all charges.
The basis of this summary is drawn from the witness statements of Mr Mitchel De Man, Mr Daniel Atkinson, Detective Senior Constable Paul Stokes, various photographs said to be from the scene of the incident as well as photographs of seized exhibits, certified extracts of the Orders made in the Geelong Magistrates’ Court on 6 June 2023, and the preliminary brief for that matter.
Item 2
As set out in the Tendency Notice, the prosecution summarises the substance of this evidence as:
It is alleged that the accused made admissions his friend, Tye Brunt, that he had been breaking into cars that night. When he went into one unlocked car, he was sitting in the car when Paul Grapsas arrived and confronted the accused. The accused told Mr Brunt that during this confrontation he pulled out his knife and stabbed the deceased.
Mr Brunt has known the accused for a very long period. They were best friends. He stated that knew that the accused would carry knives and conceal them.
This summary of the evidence is drawn from the witness statements of Mr Tye Brunt dated 29 September 2023, 2 October 2023, and 27 March 2024.
Submissions
Prosecution
The prosecution submits that Items 1 and 2 establish the accused had an intention to arm himself with a knife when committing theft from motor vehicles and an intention to use the knife if confronted. Moreover, it establishes the accused had a tendency to arm himself with a knife when committing thefts from motor vehicles at night whilst also demonstrating a preparedness to use the knife when confronted during the course of the theft. The prosecution further submits, as regards Item 1, that the accused pleaded guilty on the basis that he was armed and used the knife when confronted.[13]
[13]Outline of Prosecution submissions on tendency evidence dated 13 March 2025, [14] (‘P subs – tendency’).
The tendency alleged strongly supports the proof of a fact in issue, being whether the accused was armed with a knife before the incident, and whether he intended to use the knife if confronted.[14] The prosecution submits that the conduct the subject of Item 1 is identical to the conduct described by the accused to Mr Brunt in Item 2:
this is evidence of a tendency to steal or attempt to do so from a motor vehicle, at a particular time (evening), when equipped with a particular type of weapon… Notably, there is no evidence that a knife was used to facilitate the thefts or attempted thefts. The purpose for which the accused carried the knife was to produce it if confronted, as in fact occurred.[15]
[14]Ibid [20].
[15]Ibid [21].
In oral submissions, the prosecution’s position shifted slightly. It submitted that:
the proposition alluded to by the defence that invokes the Belmont offending and the present case - the accused fortuitously found a knife in both cars and that he was able to quickly avail himself of the knives to use in his defence - in our submission, is just simply implausible. What is entirely plausible, however, is that on both occasion Mr Clifford already had a knife in his possession and he had it in his possession to use if required.[16]
[16]T22.8–16.
The prosecution submitted that evidence which is the subject of a charge on the indictment may be used to establish tendency, referring to DPP v Roder.[17]
[17](2024) 307 A Crim R 283, 291 [27] (The Court).
Finally, the prosecution submits that appropriate directions to the jury will reduce the risk of any misuse of the evidence to an acceptable level. In terms of the accused’s criminal history, the prosecution submits that this would not cause a risk of a jury engaging in an emotional response nor give rise to strong emotional reactions, comparing it to tendency in sexual offence or domestic violence cases (which tends evoke such a response).[18] In those circumstances, the prosecution submits that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, and so the evidence should not be excluded pursuant to s 101 of the Evidence Act.[19]
[18]T23.19–27.
[19]P subs – tendency, [22]–[23].
Accused
The accused objects to the admission of the tendency evidence. He submits that it does not have significant probative value and, in the alternative, should be excluded under s 101 of the Evidence Act.[20]
[20]Defence submissions re incriminating conduct and tendency evidence dated 13 March 2025, [20]–[22] (‘D subs – tendency’).
In respect of Item 1, the accused points out that the prosecution’s assertion that he pleaded guilty on the factual basis that he produced a knife and pointed it at a victim is unsubstantiated. The Tendency Notice refers to certified extracts of the Geelong Magistrates’ Court orders but does not include any reference to evidence of the facts upon which the accused’s pleas were entered. Moreover, no documents tendered at the plea hearing have been relied on, nor any transcript of the hearing produced. In those circumstances, the prosecution has failed to provide evidence of the factual basis upon which the accused pleaded guilty and therefore the Tendency Notice is defective.[21]
[21]Ibid [23]–[27].
In any event, Item 1 does not have significant probative value to the facts in issue in this trial. Relevantly here, the issue is whether the accused was in possession of a knife prior to breaking into the deceased’s vehicle. None of the witness statements, nor the preliminary brief handed up in the course of the hearing, relied on for Item 1 shed light on whether the accused was already in possession of a knife before he entered Mr De Man’s car or whether he obtained it from inside the car when he was confronted by Mr De Man. Even in the event that these witness statements are accepted into evidence, it does not bear out the alleged tendency as it says nothing about whether the accused was ‘armed’ with a knife before entering Mr De Man’s car, let alone that the accused pleaded guilty to having had the knife on his person prior to entering.[22]
[22]Ibid [28]–[31]; T28.15–25, T29.28–30.3.
The accused also submitted that there is a real risk that Mr De Man’s recollection of events may be coloured about what could, or may, have happened, particularly in circumstances where he was never cross-examined and will be aware that he is giving evidence in a murder trial.[23]
[23]T28.26–29.5.
The accused submitted that preliminary brief reveals that he was found to have a red Swiss Army knife on his person, upon being arrested. For completeness I take this to have been an error by counsel, as the preliminary brief reveals the knife the accused was found to have on his person was a yellow folding knife. He entered his plea on the basis that that knife was stolen. This, taken in combination with Mr Brunt’s evidence in the s 198B hearing that the accused would show up at his house with various items with him (small change, tools or a pocket knife, things he had come across or taken from cars),[24] supports the proposition that the accused came across or stole the yellow folding knife.[25]
[24]Depositions, 2131 (s 198B examination of Mr Brunt, T35.11–21).
[25]T25.28–26.31.
Additionally, the comparative difference between this incident and that in Item 1 is still a relevant consideration as to the admissibility of the tendency evidence. The nature of the confrontation in the two incidents are materially different: in Item 1, the accused was chased down the street by the victim, confronted, dropped the knife, and was tackled to the ground. In this proceeding, the forensic material supports the conclusion the accused was confronted by the deceased inside the confines of the vehicle.[26]
[26]D subs – tendency, [32].
In response to the prosecution’s oral submissions regarding implausibility, the accused noted that it smacks of coincidence evidence; a species of evidence with different tests and different notices.[27]
[27]T24.7–13.
Properly considered, Item 2 is not tendency evidence. It is evidence of an admission to, and only relevant to, the charged offence of murder.[28] To permit the prosecution to rely on these admissions as tendency evidence would be to ‘engage in an exercise in circular reasoning.’[29] It is classic bootstraps reasoning.[30] In respect to Mr Brunt having known that the accused would carry and conceal knives, these are vague assertions devoid of context, and do not provide support for proof of the tendencies asserted, which are highly specific factual contexts (i.e. carrying a knife when committing thefts from a motor vehicle).[31] Item 2 does not have significant probative value.[32]
[28]D subs – tendency, [35]–[36].
[29]Ibid [36].
[30]Ibid; citing R v Villella (Rulings 1-3) [2022] VSC 535, [87] (Croucher J).
[31]D subs – tendency, [37].
[32]Ibid [38].
In the alternative, the tendency evidence should be excluded under s 101 of the Evidence Act. There is a real risk that it will be given disproportionate weight by the jury and will facilitate the jury becoming aware of the accused’s criminal history, ‘which would’ cloud their emotional response to the tendency evidence. Additionally, there is a real risk the jury will in impermissible rank propensity reasoning.[33] The accused submits that jury directions would be insufficient to alleviate the risk of the jury misusing the tendency evidence, particularly given the highly emotive subject matter of this trial.[34]
[33]Ibid [41].
[34]Ibid [43].
In this regard, the accused specifically pointed to the preliminary brief and the reference therein to the accused having ‘stumbled and dropped the knife’ before Mr De Man tackled him, noting that the act of stumbling and dropping a knife is very subjective:
It may very well be that Mr Clifford intentionally dropped the knife when he was confronted. It may be that the stumble, for example, did not cause him to drop that knife. The cut and thrust of the Magistrates Court, as I'm sure Your Honour is well aware, means that summaries are ready every day of the week which don't necessarily reflect the precise circumstance of the events in question.[35]
The risk raised was that the jury will speculate as to what may have happened had the accused not stumbled and dropped the knife.
[35]T29.9–16.
Consideration
Tendency evidence is a form of circumstantial evidence. In essence, a party, relying on such evidence, seeks to establish that because a person has or had a tendency to act in a particular way, or to have a particular state of mind, it might be inferred that they acted in the same way, or had the same state of mind, on the occasion in issue.[36]
[36]Hughes, 348–9 [16] (Kiefel CJ, Bell, Keane and Edelman JJ); DPP v Dixon & Ors (Ruling No 1) [2020] VSC 743, [98].
All other things being equal, the greater the degree of generality expressed in a tendency notice, the less likely the tendency is to satisfy the threshold of ‘significant probative value’ in relation to a particular fact in issue.[37] The Court must look at each item individually and the collective force of that evidence in considering whether it amounts to tendency evidence.
[37]TL v The Kint (2022) 275 CLR 83, 95 [29] (The Court).
As outlined above, the prosecution contends that the evidence summarised in the Tendency Notice is relevant to the issue of whether the accused was armed with a knife prior to the incident with the accused and whether he intended to use the knife if confronted.
In the present case, in order to determine the admissibility of the tendency evidence sought to be adduced by the prosecution, it is necessary to address:
(a) whether the evidence sought to be adduced supports a conclusion that the accused had the particular tendencies specified in the Tendency Notice, namely, a tendency to arm himself with a knife when committing theft from a motor vehicle at night, and to use the knife if confronted during the theft, and an intention to arm himself with a knife when committing theft from a motor vehicle and to use the knife if confronted; and
(b) whether the tendency would rationally affect the assessment by the jury of the probability the accused acted in the manner contended for by the prosecution in this case (i.e. that the accused armed himself with a knife prior to committing theft and, when confronted by the deceased, the accused intended to use the knife).
Critically, the Tendency Notice is expressed in forward facing terms and indicates the alleged tendency is for the accused to arm himself with a knife prior to committing theft (‘arm himself with a knife when committing theft…and use the knife if confronted’).[38] In respect of the evidence the subject of Item 1, relevantly:
[38]I acknowledge that the tendency does not use the word ‘prior’ however, if there was any ambiguity, it must surely be resolved by the fact that the prosecution seeks to adduce tendency evidence to buttress their case that the accused brought a knife to the scene. See P subs – tendency, [2], [19].
·Mr De Man’s witness statement is completely silent on whether the accused had the knife prior to the incident or whether it was something that he had taken from Mr De Man’s car. It is unclear if there was any planning by the accused to arm himself and even less evidence that he armed himself with an intention to use the knife if confronted;
·Mr De Man does not indicate in what manner the accused ‘stumbled and dropped the knife’. It may be, as the accused submitted, that the two events should be read disjunctively (though I note that this interpretation may be somewhat neutralised by the accused attempting to run away again after being tackled and, in any event, it is not clear that that would be the most natural reading of the preliminary brief). The evidence is that the accused was running away from Mr De Man and that, at its highest, he pointed the knife at Mr De Man;
·Mr Atkinson’s witness statement mentions only that his partner told him that the accused had a knife.[39] It says nothing about Mr Atkinson having seen the knife let alone about the temporal element of the knife;
·Detective Senior Constable Stokes’ witness statement notes his being informed that ‘the accused was in possession of a knife which he had dropped’[40] and identifies it as a yellow handled retractable knife.[41] It goes on to mention ‘knives’ (plural) as being some of the items strewn across the street and which ‘appeared to have come [from] vehicles’.[42] Again, nothing in this statement indicates when the accused came into possession of the knife;
·the crime scene photographs include what appears to be a yellow handled retractable knife,[43] a wooden handled knife in a sheath,[44] and a black and a chrome multitool (though it is difficult to discern, as neither is extended open).[45] That these were the items recovered from the bag dropped by the accused in his attempt to evade Mr De Man says nothing about the origin of the knives;
·the certified extracts of the Geelong Magistrates’ Court orders do indeed indicate that the accused pleaded guilty to attempted theft, possession of a controlled weapon without lawful excuse, and assault with a weapon. As the accused submitted however, the orders do not record any references to evidence of the facts upon which the accused’s pleas were entered; and
·the preliminary brief mentions a ‘red Swiss army knife’ which was recovered from the bag dropped by the accused (incidentally, no such knife appears in the photographs so far as I was able to discern) as well as ‘a yellow folding knife’ that the accused ‘had in his possession’, having been located in his pocket.
[39]Depositions, 324 [10] (Mr Atkinson’s statement dated 27 December 2023).
[40]Depositions, 503 [4] (Detective Senior Constable Stokes’ statement dated 22 November 2023).
[41]Depositions, 504 [5] (Detective Senior Constable Stokes’ statement dated 22 November 2023).
[42]Ibid.
[43]Depositions, 1946–7.
[44]Depositions, 1955.
[45]Depositions, 1956.
Taken at their highest, when looked at individually, and collectively, none of the pieces of evidence relied on in support of Item 1 say anything at all about whether the accused armed himself with a knife prior to committing car thefts or that he armed himself with the intention of using the knife. While similarity is relevant to , but not determinative of probative value, the Mr De Man incident does not have any of the necessary qualities to establish the alleged tendencies. There is evidence Mr Clifford had a knife and other items in a shopping bag and that in the context of running away from the crime scene, having been discovered by Mr De Man, he has stumbled for some reason and simply pointed a knife. In the circumstances, I am of the view that the evidence is not significantly probative. I accept the accused’s submission that this evidence ‘does not provide evidence to support the tendencies asserted by the prosecution’.
The admission sought to be relied on appears in Mr Brunt’s second witness statement, dated 2 October 2023:
This is how Bailey described it to me. He said the guy came up to him and started laying punches into him. He described and showed me that the guy put his left hand on the roof of the car and used his right hand to punch Bailey who was sitting in the car.
Bailey said the punches were really solid. Bailey said he got really scared. Bailey said he pulled out his knife while he was getting punched. Bailey showed [me] that he used his right hand and in a downward motion stabbed this guy in the chest twice.
Bailey said it was twice, really quick. “Bang, bang” he said. Bailey had a lot of quick moments when he is on ice. [46]
…
Bailey said he thought he got the guy in the chest. Bailey said he didn’t really remember what happened after that. He said the guy landed in the road between the car and the gutter. I asked Bailey if he moved him. Bailey said he didn’t, that was just how it [sic] fell. I[t] just didn’t sound realistic the way the guy fell, but I believe Bailey that he didn’t move him.[47]
…
I asked Bailey, “do you have the knife on you?”. Bailey said, “yep” and pulled it out, still crying and shaking. He pulled out a fishing knife that had a sheath on it. It was a fishing knife, a filleting knife.[48]
…
The handle of the knife was black and blue. It was a medium fishing knife. I think the blade was about 150mm. It was definitely sharp. I could see it. It was long and skinny. I don’t know the brand of the knife but I know you can get them from k-mart. I don’t know that he get it from there, I just know that you can.[49]
I told Bailey to take it with him and not to leave anything at my house. Bailey put the knife back in the sheath and then he [put] it back in his bum bag. I do know that he has previously [kept] them in his pants, in the waist band at the front.[50]
[46]Depositions, 376 [16]–[18] (Mr Brunt’s statement dated 2 October 2023).
[47]Depositions, 376 [20] (Mr Brunt’s statement dated 2 October 2023).
[48]Depositions, 377 [25] (Mr Brunt’s statement dated 2 October 2023).
[49]Depositions, 377 [27] (Mr Brunt’s statement dated 2 October 2023).
[50]Depositions, 377 [28] (Mr Brunt’s statement dated 2 October 2023).
It seems to me that the entirety of the prosecution’s argument in relation to this admission, as it relates to tendency evidence, falls on the fact that Mr Brunt refers to the accused having said that he ‘pulled out his knife’, whilst the deceased was punching him. The prosecution’s submission is that this statement is ‘unambiguous’[51] and shows that the knife belonged to the accused. I do not agree with this submission. Taken at its highest, the evidence is equivocal. It does not strongly support proof of the alleged tendency; it would be a considerable leap to infer that by making reference to pulling out ‘his’ knife, the accused was referring to a knife which he brought in the event he was confronted whilst committing thefts from cars. It would require greater context before I would be satisfied that it had significant probative value.
[51]P subs – tendency, [15].
The prosecution submits that it is further supported by Mr Brunt’s evidence in cross-examination at the s 198B hearing to the effect that the accused did not mention taking a knife from the deceased’s car; rather, he was only shown a car key and wallet in response to having asked the accused if he had stolen anything from the car.[52] Moreover, the prosecution puts the point too highly. Whilst it is true that in Mr Brunt’s s 198B evidence he does not mention the accused taking a knife or any other items bar the car key and wallet from the car, he simply was not asked if there were any other items taken:[53]
You then asked – you asked Bailey if he'd taken anything from the car?---Yep.
And you were specifically asking if anything had been stolen from within the car?---Yep.
Yeah. He showed you a car key. Is that correct?---Yep.
Yeah. And a wallet?---Yep.
Yeah. You say he was crying and shaking as he did this?---He was, yes.
[52]Ibid [15]–[17].
[53]Depositions, 2142 (s 198B examination of Mr Brunt, T38.10–17).
I agree with the accused that the other ‘admissions’ sought to be relied on by the prosecution, that Mr Brunt knew the accused would carry knives and conceal them, are vague and devoid of context. It is worth setting the relevant parts out in full to illustrate the point:
(a) in his first statement dated 29 September 2023:[54]
[54]Depositions, 369–70 [7]–[9] (Mr Brunt’s statement dated 29 September 2023).
I know that Bailey carries knives. Nights I have seen him with other people, Bailey has just pulled out a knife and sat it on his leg. He hides the knives most of the time.
I would say Bailey first started carrying knives or weapons after he first went to prison.
I have seen Bailey carrying a knife about 3–4 times over 1–2 years. He didn’t say why he had them. I just took it that he was cooked (high on ice).
(b) in his second statement dated 2 October 2023:
In my first statement I mentioned that Bailey had previously carried knives. The knives were always different. I think the previous ones were pocket knives. They certainly weren't something he just pulled out of the kitchen.[55]
(c) for completeness, I record that the third statement dated 27 March 2024 is concerned with the location of the knife used to stab the deceased and does not relevantly contain any more general evidence about a tendency of the accused to carry knives.
[55]Depositions, 381 [57] (Mr Brunt’s statement dated 2 October 2023).
Additionally, though not relied on by the prosecution as set out in the Tendency Notice, I note that in cross-examination at the s 198B hearing Mr Brunt’s evidence included that he knew the accused was engaging in petty crime, and when he saw the accused he would sometimes have things like small change, a pocketknife, and tools that he had come across or had taken from cars.[56]
[56]Depositions, 2131 (s 198B examination of Mr Brunt, T28.11–21).
More generally I make the observation that, even taking Mr Brunt’s evidence at its highest, there will necessarily be challenges to Mr Brunt’s reliability, which are likely to be central issues in the trial, given the revelation that he ‘left out very key stuff’[57] from his first statement, and the evident differences between his first and second statements.
[57]Depositions, 374 [3] (Mr Brunt’s statement dated 2 October 2023).
There is simply no specificity in Mr Brunt’s various statements as to when the accused supposedly carried knives or for what purpose, including as regards the night in question. They do not provide support for proof of the tendencies alleged by the prosecution which have been particularised in a highly specific factual context: that is, in relation to carrying a knife when committing theft from motor vehicles and to use it if confronted. In those circumstances, the remaining ‘admissions’ do not have significant probative value.
Taken at its highest, Mr Brunt’s evidence does no more than suggest that the accused engaged in petty crime and that sometimes he would come to Mr Brunt’s house with various things he had come across or stolen from cars, and that he had seen the accused over a one to two year period have a knife three or four times. It requires a significant leap to use Mr Brunt’s evidence to support the tendencies alleged by the prosecution. I do not consider there is the necessary evidential foundation to establish the alleged tendencies. I also note that these ‘admissions’, taken at their highest, only goes to a select part of the tendency asserted; namely, that the accused would arm himself with a knife.
Finally, in this case the prosecution points to only one occasion involving behaviour of the kind said to establish a tendency of the same kind – the De Man incident. The Brunt evidence does not point to any particular incident he knew of, only that the accused was known to carry knives on the odd occasion. This factor, in this case, therefore at least limits its probative value as tendency evidence.
Conclusion
Accordingly, I consider that the evidence in each of the items in the Tendency Notice is not admissible as tendency evidence under s 97(1) of the Evidence Act. Had it been necessary, and for the reasons canvassed by the accused and summarised at [51] above, I would have excluded the tendency evidence on the basis that its probative value does not substantially outweigh the prejudicial effect it may have on the accused.
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