Director of Public Prosecutions v Coulter and Giles (Ruling No 2)
[2013] VSC 30
•12 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT GEELONG
CRIMINAL DIVISION
S CR 2012 0120
2012 0121
| DPP |
| v |
| CHRISTOPHER LEIGH COULTER GARETH GILES |
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JUDGE: | OSBORN JA | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 4 -6 February 2013 | |
DATE OF RULING: | 12 February 2013 | |
CASE MAY BE CITED AS: | DPP v Coulter & Giles (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 30 | |
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CRIMINAL LAW – Whether hearsay relationship evidence should be excluded – Whether tendency evidence contained in laptop computer entries should be excluded – No proximity to facts in issue – Whether tendency evidence of statements by accused as to state of mind concerning killing admissible – Whether evidence of ‘weird things’ should be excluded – Evidence Act 2008 (Vic) ss 97(1) and 101.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Gibson | Office of Public Prosecutions |
| For the FirstnamedAccused | Mr P Chadwick SC | James Dowsley & Associates |
| For the Secondnamed Accused | Mr S Johns | Robert Stary Lawyers |
TABLE OF CONTENTS
Background facts................................................................................................................................ 3
The deceased’s behaviour shortly prior to his death.................................................................. 3
The evidence of Pyke........................................................................................................................ 5
Injuries observed on Giles............................................................................................................... 8
The record of interview with Giles................................................................................................. 8
Text message evidence...................................................................................................................... 8
The laptop computer evidence........................................................................................................ 9
Ryan Hall........................................................................................................................................... 20
HIS HONOUR:
On the night of 5 January 2012 Russell Hammond was strangled to death at his home in Barnards Lane, Drysdale.
The accused men, Coulter and Giles, are charged with his murder and Giles has pleaded not guilty. In their respective records of interview Giles and Coulter each admit going to the deceased’s home on the night of his death. They also each admit involvement in the subsequent removal of his body and the burning of the body and of the deceased’s car at different locations. They each separately assert that during the course of events at the deceased’s home they left the deceased with the other accused temporarily. Each of them says he then returned to find the other accused strangling the deceased.
The trial on a joint indictment was fixed for last week at Geelong, but late in the previous week counsel for Coulter raised the issue of his fitness to stand trial and tendered to the Court reports of a forensic psychologist and a neuropsychologist.
In consequence, the prosecution has sought the opportunity to obtain an independent assessment of Coulter’s fitness to stand trial from Forensicare. Although this has not yet been obtained, on Wednesday 6 February 2013, following submissions and after receiving evidence as to the circumstances in which Coulter is currently being held in custody, I reserved the question of Coulter’s fitness to stand trial for investigation pursuant to pt 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and gave consequential directions.[1]
[1]DPP v Coulter & Giles (Ruling no 1) [2013] VSC 28.
Coulter cannot be arraigned and a joint trial cannot proceed (if at all) until the issue of Coulter’s fitness is resolved.
Counsel for Giles has, however, raised a series of preliminary issues relating to his trial and this ruling seeks to resolve those issues so far as it is practicable and proper in the present circumstances.
Background facts
The prosecution case is that Giles was born in Geelong in 1987. He left school after Year 9 or 10. At the time of the deceased’s death he was unemployed and living with his mother and sister, as did Coulter. His sister was Coulter’s girlfriend and pregnant with Coulter’s child.
Giles had met the deceased in late 2005 or early 2006 when Giles participated in a Work for the Dole scheme in the Geelong area. The deceased and Giles struck up a friendship.
In October 2006, Giles left home and lived with the deceased for some months. During this period his mother did not know his whereabouts or have contact with him. In March 2007, police attended at the deceased’s home and asked Giles to contact his mother. Shortly after this, his mother first contacted Giles and then collected him from the deceased’s home. When she picked him up Giles had a number of items he had apparently been given, including a laptop computer, bedding, clothes and empty alcohol bottles.
The deceased’s behaviour shortly prior to his death
On Monday 2 January 2012, the deceased attended work at Salmat (a call centre) in South Melbourne. Alice Pyke, a workmate with whom he had a good relationship, states as follows:
On the Monday night when I came in Russell was really happy, Russell was normally a happy sort of person but he was more so on this night. The first thing he said to me was my ex boyfriend showed up on my doorstep. He said that they broke up three years ago. He did not say why they had broken up at this stage. He said that his ex boyfriend wanted to talk to him about something, he didn't know what it was. He said that they were going to go out for dinner to talk about what ever it was that his ex boyfriend wanted to talk about. He did not say where he was going to go for dinner, but they were going out for dinner on the Tuesday night before Russell came to work. This was just a brief conversation and then we started working as the first hour at work was really busy.
When he told me about the ex boyfriend, he normally doesn't talk about that sort of stuff so I didn't want to push it with him so I didn't ask him what his name was. Russell didn't normally talk to me about that sort of stuff, and I had the feeling that there was not anything going on in his love life so it seemed pretty out of the blue.
…
… On the Tuesday at work Russell said to me that he went to dinner with his ex boy friend. And that he had told Russell that he wanted them to move back in together. He said that he wasn't sure if they were to move into Russell's house or into the boyfriend's house. I said to him are you going to move into your house as I knew that he had a mortgage on his house that was about $5000.00. Russell said he didn't know and he thought that his ex had a mortgage on his house as well, so he could not tell me either way which house they were going to move into.
I got the impression that this person lived either in Geelong or somewhere near Geelong. Russell said they went out for dinner and this person asked him if he wanted to move back in together again. I am assuming that they had lived together at some stage. I asked Russell if this person had a good reason for breaking up with him in the first place. Russell said, yeah he had a good reason. He didn't tell me what the reason was so I didn't push him on what the reason was.
Russell told me that the break up was amicable. He the told me that when they had broken up, he had dropped this person home from a date and he never heard from him again. Russell also told me that this person said he still had feelings for Russell and he still had feelings for this person. That was about the extent of the conversation. Russell was happy, I felt really good for him, he was a great guy and it was good he still had feelings for this guy. I did find it a little odd that they were talking about moving in together.
…
On the Wednesday night I started work at 9.30p.m. I don't know what time Russell started work. On the Wednesday Russell was the same as he had been the last couple of days, he was just smiling, it was just normal Russell stuff. When he was talking about this ex boyfriend his whole face sort of lit up, he was really happy. It was very obvious that he was really happy that this ex boyfriend had re entered his [life].
On the Wednesday night at work Russell and I only had a really brief discussion about his ex boyfriend. I was sort of talking about how it was going, and how the dinner went. He said that dinner went good, and he said [that] he was going to go and see the house that he could possibly be living [in] on the Thursday night.
…
He had never really named any ex boyfriends, if he ever talked about them it was always very general like in then context of my boyfriend back in university. If he had ever talked to me about him I wouldn't know.
David HUYNH told me that Russell had an ex boyfriend who was Malaysian. He said that he had talked to Russell at one time, but I am not sure if this was the same person or not. He did not tell me the name of the ex boyfriend or if he was Malaysian or how old he was. Because he told me about this person and he was normally so quiet about things like this. So I didn't push him on this.[2]
[2]Statement of Alice May Pyke taken 10 January 2012, 3-6.
On Thursday 5 January 2012 the deceased left work shortly after 6:00 am, driving his 1996 Mercedes Sedan. He stopped at Hungry Jack’s in Newcomb for a meal at 7:21 am. The following morning his car was located, engulfed in flames, on Portarlington Road, Leopold. In the afternoon the deceased’s body was found partially incinerated in Broderick Road, Corio.
The evidence of Pyke
Pyke’s evidence is the subject of a hearsay notice pursuant to s 67 of the Evidence Act 2008 (Vic). Section 65 of the Evidence Act provides that, in a criminal proceeding, if a person who made a previous representation is not available to give evidence about an asserted fact then the hearsay rule does not apply to evidence of that representation if the representation was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.[3]
[3]Evidence Act 2008 (Vic) s 65(1) and (2).
The prosecution submits that the evidence is relevant in that it assists the jury to understand the relationship between the deceased and the accused. More particularly, it is submitted that if there had been a rekindling of a relationship between Giles and the deceased in the days leading up to the killing, it would assist in explaining why the deceased would:
· let Giles into the house at night on the night of the killing, being 5 January 2012;
· allow Giles to bring a male friend into the house who was a complete stranger to the deceased;
· not be on his guard in the presence of Giles; and
· be inclined to trust Giles.
Objection is taken to the admission of Pyke’s evidence on the basis that it is irrelevant unless it could satisfactorily support an inference that the representations made by the deceased to Pyke were an account of conversations the deceased had with the accused Giles.
In my view the defence submission should be accepted:
· There is no evidence Giles was in fact ever the deceased’s boyfriend. The only evidence as to their relationship is that of the deceased’s mother and Giles himself. Neither characterises the relationship this way.
· The period during which Giles lived at the deceased’s house was some five years earlier, not three years earlier.
· There is no evidence Giles had dinner with the deceased on the Tuesday night. The highest the evidence goes is phone records which tend to show that Giles was in the Clifton Springs area on 3 January 2012 between 2:17 pm and 4:08 pm and was not at home. In his record of interview, Giles also says he had seen the deceased in the week prior to the deceased’s death.[4]
· The circumstances described in the conversations with Pyke do not fit Giles. Giles had no home into which the deceased might have moved. Giles did not previously break up with the deceased in the manner described. There is no evidence of a ‘good reason’ for the breakup and the evidence is not that the ‘breakup’ occurred when the deceased dropped Giles home from a date but rather that it occurred when Giles’s mother collected him from the deceased’s home.
· The absence of detailed evidence as to the existence or absence of romantic relationships with other men during the period in question cannot be regarded as positively supporting the prosecution scenario.
[4]In cross-examination at the committal Pyke was unsure of the exact days of the week on which conversations occurred. This further weakens any inference that might otherwise be drawn from the phone records.
It is entirely consistent with the prosecution case that Giles has never had a romantic relationship with the deceased.
There is no evidence that the deceased’s relationship with Giles was ever other than amicable. There is no reason to suppose Giles had to resort to trickery in order to visit the deceased.
There is no suggestion that the deceased’s death was self-inflicted. The question of whether he was in a good mood or not on the previous day is in itself of doubtful relevance.
I accept Mr Johns’s submission that if Pyke’s evidence were regarded as having some contextual relevance, it should be excluded because its probative value is outweighed by the danger of unfair prejudice to the accused.[5] The Dictionary to the Evidence Act defines the ‘probative value’ of evidence as meaning ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[6] For the reasons I have explained, the probative value of the evidence of Pyke (if any) is low. On the other hand, it carries with it the inherent risk that it might lead the jury to speculate that Giles engaged in an elaborate web of lies in order to engineer the meeting at the deceased’s house on the night of the killing. This possibility arises because the circumstances which the former boyfriend is said to have described to Pyke simply do not fit those of Giles in a number of significant respects. Most obviously, he did not have a place of residence to which the deceased might have moved. There is no satisfactory evidentiary basis for this hypothesis of deceit. On the other hand, if it were entertained as speculation, it has the capacity to be seriously prejudicial to Giles.
[5]Evidence Act 2008 (Vic) s 137.
[6]Evidence Act 2008 (Vic) Dictionary pt 1.
Lastly in this connection, I observe that there is no necessity for the prosecution to establish precisely what circumstances led the deceased to allow the accused into the deceased’s home. Each of the subsidiary circumstances the prosecution seeks to support by Pyke’s evidence is both essentially speculative and ultimately equivocal.
Injuries observed on Giles
The draft prosecution opening[7] foreshadows reference to scratches observed on Giles after his arrest. The defence objects that any connection whatsoever between the forensic evidence and the facts in issue is speculative.
[7]At [37].
The prosecution accepts this submission given the way the case currently stands. It is not contended there is evidence of a struggle that would explain the scratches in any way.
The record of interview with Giles
Questions and answers 749-751 of the record of interview relate to the scratches found on Giles. They should be deleted.
There are continuing discussions between counsel as to whether other aspects of the record of interview should be deleted. It is unnecessary to resolve these matters at this point in time.
Text message evidence
Objection is taken to evidence of the following:[8]
67On 3rd January 2012 Heather Giles forwarded a text message to her son at 3:14 pm stating, ‘Where R U?’ and ‘What U doing?’. At 3:21 she forwarded a second text message stating ‘Answer now’.
68A review of Giles’s call records reveals that on Tuesday 3rd January 2012 between 2:17 pm and 4:08 pm Giles’s mobile phone was utilising a cell tower in the Drysdale and Clifton Springs area.
[8]Prosecution opening, [67]-[68].
Although in the first instance the prosecution put this evidence forward in conjunction with and as supplementary to that of Pyke, it is independently admissible (as the prosecution submits) on the basis that it simply shows Giles whereabouts in the period immediately leading up to the killing.
The laptop computer evidence
The prosecution seeks to adduce evidence of the contents of Giles’s laptop computer upon which he was accustomed to record his thoughts. A statement has been obtained from Richard Rosalion, a digital forensic analyst attached to the Victoria Police E-Crime Squad. Mr Rosalion has now been cross-examined upon a basha enquiry.
The computer entries fall into three categories. First, they include two plans to kill. Secondly, they include a series of statements which are said to reflect Giles’s ongoing state of mind with respect to homicide. Thirdly, they include an entry confirming the content of a discussion with the proposed witness Ryan Hall (to whose evidence I shall next come).
There is no dispute that the first category of computer entry is admissible. It is put forward as evidencing an intention to deliberately kill the deceased. It is relevant to set out both of the entries they form a context relevant to consideration of the other entries. The entries relevantly state:
3) ADVOCATE - 1ST TEST ALT.wps
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1. CATCH BUS TO VIC'S HOUSE.
2.ADVOCATE MAKES AN ENTRANCE WITH BASEBALL BAT TO VIC’S KNEECAPS.
3. TIRE VIC UP WITH ROPE AND DUCT TAPE.
4.TAKE VIC’S POSSESSIONS, I.E. CAR KEYS, SHOVELS, WALLET.
5. TAKE VIC OUT BACK.
6. THROW VIC IN BACKOF VIC’S CAR.
7. THROW VIC’S POSSESSIONS IN BACK Of CAR.
8. DRIVE TO BURIAL SITE.
9. DIG HOLE 'WITH VIC'S SHOVELS.
10. TELL ADVOCATE TO SCOUT THE IMMEDIATE AREA.
11. WAIT 3 MINUTES.
12.BLEED VIC (SOMEWHERE NOT LIFE-THREATENING, I.E. WRIST).
13. WAIT FOR ADVOCATE TO RETURN.
14. ADVOCATE KILLS VIC.
15. COLLECT SKULL.
16. BURY VIC.
17. COVER UP BLOOD WITH DIRT.
18. PACK UP TOOLS.
19. DRIVE CAR TO BURNING OR DROWNING SITE.
20. TAKE LICENCE PLATS.
21. BURN OR DROWN VIC'S CAR.
22. LEAVE.?[9]
[9]Page 3 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
Page 4 of 39 states:
4) ADVOCATE - 1ST TEST.wps
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1. CATCH BUS TO VIC'S HOUSE.
2.ADVOCATE MAKES AN ENTRANCE WITH BASEBALL BAT TO VIC’S KNEECAPS.
3. TIRE VIC UP WITH ROPE AND DUCT TAPE.
4.TAKE VIC’S POSSESSIONS, I.E. CAR KEYS, SHOVELS, WALLET.
5. TAKE VIC OUT BACK.
6. THROW VIC IN BACK OF VIC’S CAR.
7. THROW VIC’S POSSESSIONS IN BACK Of CAR.
8. DRIVE TO BURIAL SITE.
9. DIG HOLE WITH VIC'S SHOVELS.
10. ADVOCATE KILLS VIC.
11. COLLECT SKULL.
12. BURY VIC.
13. COVER UP BLOOD WITH DIRT.
14. PACK UP TOOLS.
15. DRIVE CAR TO BURNING OR DROWNING SITE.
16. TAKE LICENCE PLATS.
17. BURN OR DROWN VIC'S CAR.
18. LEAVE.?[10]
[10]Page 4 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
It can be seen that the plans reflect a number of elements involved in the deceased’s killing.
The second category of computer entries forms part of a larger number of files created on 2 September 2011. It is necessary to set out the contents of the documents which the prosecution has selected.
Page 13 of 59 states:
13.1) DEATH IN LIFE.doc
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13.2) Information Extracted from Internal Structure of Document
Title: FILTERING IS THE KEY TO A STABILIZED MIND,
Subject:
Author: DRAKEN
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LIVE TO AVOID DEATH
BUT LIVE TO DIE
DEATH IN LIFE
LIVE TO KILL
KILL TO LIVE[11]
[11]Page 13 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
Page 18 of 59 states:
18.1) FIRERY METALIC DARKNESS.doc
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Title: FILTERING IS THE KEY TO A STABILIZED MIND,
Subject:
Author: DRAKEN
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FIRE, METAL, DARKNESS.
WHAT IS IT ABOUT THESE THREE THINGS?
THEY'RE ALL COMPLETELY DIFFERENT, COMPLETELY SEPARATE,
AND YET THEY'RE ALL LINKED SOMEHOW, IN ME.
THESE THREE THINGS SHOULD NOT BE APART OF ME.
BUT THEY ARE, LAVING DORMANT ISIDE.
SO WHAT WOULD HAPPEN IF THEY WERE TO AWAKEN?
SOMETHING GOOD, OR SOMETHING BAD.
EITHER WAY IT'LL BE SOMETIHING POWERFULL,
SOMEHTING DANGEROUS SOMEHTING …...... TO HIDE.
NO MATTER WHAT OUTCOME THEY HOLD,
I MUST FIND OUT THEY'RE SECRET.[12]
[12]Page 18 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
Page 19 of 59 states:
19.1) First Kill.doc
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19.2) Information Extracted from Internal Structure of Document
Title: Will lwaqui be my first kill
Subject:
Author: DRAKEN
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WILL IWAQUI BE MY FIRST KILL?
IF SO I MUST COLLECT HIS SKULL NO MATTER THE COST, OR
CONSEQUENCE.[13]
[13]Page 19 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
Page 26 of 59 states:
26.1) IMPULSES.doc
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26.2) Information Extracted from Internal Structure of Document
Title: To strangle the last remaining whispers of their essence away from them,
Subject:
Author: garreth
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To strangle the last remaining whispers of their essence away from them.
And extinguish their live.[14]
[14]Page 26 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
Page 33 of 59 states:
33.1) MELAJUSTED FUCK.doc
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33.2) Information Extracted from Internal Structure of Document
Title: I THINK I SHOULD USE MY MELAJUSTED FRIEND
Subject:
Author: DRAKEN
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I THINK I SHOULD USE MY MELAJUSTED FRIEND.
I THINK I SHOULD BLEED HIM AND TAKE A FEW PERSESIONS.PERSESIONS SUCH AS HIS LAPTOP.[15]
[15]Page 33 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
Page 35 of 59 states:
35.1) OWNING KILLS.doc
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35.2) Information Extracted from Internal Structure of Document
Title: TO SUCCESSFULLY OWN A KILL, THE DAMAGE HAS TO BE INSTANTANEOUS
Subject:
Author: DRAKEN
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TO SUCCESSFULLY OWN A KILL, THE DAMAGE HAS TO BE
INSTANTANEOUS.
THINGS THAT AREN'T COMPLETELY IN YOUR CONTROL DO
NOT COUNT.
TRAPS SUCH AS BOMBS AND BOOBY TRAPS DON'T COUNT
EITHER.
WHICH IS WHY BLADE TYPE WEAPONS SUCH AS SWORDS AND
KNIFES, ARE SO GOOD FOR COLLECTING KILLS.
BUT EVEN GUNS ARE ADEQUATE DUE TO THEIR HIGH SPEEDAND THE USERS CONTROL OVER THE WEAPON.[16]
[16]Page 35 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
Each of these documents contemplates killing or circumstances which can be thought to prefigure aspects of the deceased’s death and the desecration of his body and disposal of his car.
Nevertheless it can also be seen that each was written between May and September 2006 and there is a substantial time gap between their creation and the date of the alleged crime. Whilst it is true that the evidence otherwise shows Giles met the deceased in late 2005 or early 2006 and hence the entries could refer to the deceased by way of description such as ‘my melajusted friend’, nevertheless it is difficult to regard the entries as probative of Giles’s statement of mind in the period leading up to the killing.
The prosecution case is in effect that the evidence shows Giles contemplated killing, then planned to kill and then in fact killed. The evidence of computer entries is put forward as admissions of Giles’s state of mind. It is submitted that he in effect affirmed the entries when they were accessed on 2 September 2011 and hence they can be regarded as probative of Giles’s state of mind at that date. I do not accept this submission. As Mr Rosalion acknowledged, the probability is that they were simply downloaded as part of a large body of files on that day. The recorded times of immediately successive entries strongly support this conclusion.
In my view the evidence in issue is properly characterised as tendency evidence; namely evidence going to Giles’s particular state of mind. Section 97(1) of the Evidence Act provides:
(1)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.
Section 101 further provides:
(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2)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.
(3)This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the accused.
(4)This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the accused.
The scope of these provisions is wide. In Middendorp v The Queen,[17] Redlich JA (with whom Mandie JA and Whelan AJA agreed) observed:[18]
In any event, the scope of tendency evidence is not as narrow as the applicant contends. The Act is not framed in the terms, as recommended by the Australian Law Reform Commission, that ‘evidence of a person’s past conduct on some occasion should only be admitted to establish a tendency to act or think in a particular way and thereby infer similar conduct on some relevant occasion if it could be shown that the circumstances of the two occasions were “substantially and relevantly similar.’’’ While evidence of this sort will frequently constitute admissible tendency evidence, it does not follow that evidence of prior conduct that is not ‘substantially and relevantly similar’ to the offending conduct cannot amount to admissible tendency evidence.
[17][2012] VSCA 47.
[18]Ibid [20].
Insofar as s 97(1) is concerned, no point is taken by the defence with respect to the requirement to give reasonable notice in writing but it is submitted that the evidence does not have significant probative value because:
(a) the computer entries are of a fanciful and fictitious character; and
(b) they cannot be regarded as evidencing Giles’s state of mind sufficiently proximate to the killing to be relevant.
Significant probative value means something more than relevance, but something less than a substantial degree of relevance.[19]
[19]R v Lockyer (1996) 89 A Crim R 457; KRI v The Queen (2011) 207 A Crim R 552; DSR v Director of Public Prosecutions (Cth) (2012) 215 A Crim R 349; Stubley v Western Australia (2011) 242 CLR 374.
I do not accept that the apparently imaginative or fictional quality of some of the computer entries deprives them of the potential to be regarded as of significant probative value. These qualities are matters which a jury could assess and which do not deprive the entries as a whole of relevant meaning.
On the other hand it must be acknowledged that there is an inherent uncertainty as to what is meant by phrases such as:
I think I should bleed him and take a few persesions [sic].
This uncertainty must affect the probative value of the entries to some material extent.
I further accept the submission that the date of writing of each of the entries in issue means that they cannot be regarded as significantly probative of a tendency to have a particular state of mind either at the date the plans were created or at the date of the killing. Hence they can neither be materially probative contextually of the character and meaning of the plans nor of Giles’s actions thereafter.
The prosecution submits that, in some circumstances, relationship evidence of considerable age has been adduced to demonstrate a long-standing sexual interest in an alleged victim.[20]
[20]Eg RHB v The Queen [2011] VSCA 295.
I accept that this is so, but the entries here in issue all date from a particular period in 2006 when Giles was aged 19. They do not expressly relate to the deceased. It is a very long bow to seek to infer that they demonstrate a tendency to have a particular state of mind some five years later, when Giles may be presumed to have materially matured.
The prosecution also submits the entries are relevant because they demonstrate ‘moral turpitude’. Conversely the defence submits they are essentially a form of character evidence rather than evidence which is directly probative of facts in issue.
I do not accept either of these submissions. The evidence is relevant if at all as tending to establish a particular state of mind which is contextually relevant to the evaluation of the plans and the circumstantial case as a whole. It may also be regarded as identifying a possible motive.
The difficulty is, as I have said, that no satisfactory inference can be drawn from the evidence as to Giles’s state of mind at the relevant time. In my opinion it is not of significant probative value.
Further, insofar as the evidence is capable of being regarded as having some probative value, when viewed in conjunction with the plans to kill and the evidence of Hall to which I shall shortly turn, such value does not substantially outweigh the prejudicial effect it might have. There is a very real danger that it could be regarded as evidencing a continuing state of mind in a way which it does not. It is also inherently prejudicial because of what Mr Johns characterised as its ‘dark nature’. Hence it does not satisfy s 101.
The relevant concept was encapsulated by McHugh J in Pfennig:[21]
If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.[22]
[21] Pfennig v The Queen (1995) 182 CLR 461.
[22]Ibid 528–529.
Ryan Hall
It is proposed to call evidence from Ryan Hall, a neighbour and friend of Giles. Hall recalls having conversations with Giles in which Giles expressed the view that it was ‘OK to kill an innocent person’ and that ‘he wouldn’t mind having the experience of prison one day’. Ryan Hall also states that Giles would often have his laptop with him and that Giles told him ‘he would write his thoughts’ and that he would make up codes.
The defence objects that the evidence is not as to his state of mind proximate to the deceased’s death and is fundamentally vague in its nature. Hall’s police statement is to the following effect in part:
I remember having a moral conversation with Gareth. His view was that he felt it was OK to kill an innocent person. I didn’t like that Gareth thought that way and I told him a while ago I didn’t want to talk about those things with him.
Gareth sometimes spoke about weird things like bleeding people out to get powers. I think he got a lot of ideas from movies. I don’t like those sorts of ideas and years ago I told him so. Gareth wouldn’t often bring it up with me after I asked him not to. If he tried to talk like that I would change the subject.
While Gareth spoke about killing people he never mentioned any specific plan he had. He never spoke of anything specific at all.
In cross-examination at the committal, all agreed he could not recollect when these conversations took place and that it could have been many years earlier, possibly even six to seven years earlier.
Entry 25 of 59 in Giles’s laptop computer is as follows:
25) HYPOTHETICALS.wps
Full Path D:\KRADEN’S\TALK TO RYAN\HYPOTHETICALS.wps
File Created 02/09/11 10:59:30
Last Written 27/05/11 05:17:35
Last Accessed 21/10/11 20:59:35
Is Deleted No
Logical Size 9,216
HYPOTHETICALS
QUESTION:
IF I SOMEHOW MANAGED TO BECOME A HITMAN, WOULD HE WANT TO JOIN ME?
REPLY:
NO ….. HE’D BE TOO WORRIED ABOUT GETTING CAUGHT.
EVEN IF HE HAD HE’S OWN RULES TO PREVENT GETTING CAUGHT, HE’D STILL BE TOO PARANOID ABOUT IT.
QUESTION:[23]
[23]Page 25 of 59 in Exhibit B (voir dire), report ‘ECS 123/0186 Documents of Interest from Dell Inspiron 6400 S/N 6 PBQP1S’ prepared by Richard Rosalion and annexed to statement of 15 January 2013 by Richard Rosalion.
In my view this entry is sufficient to enable the jury to conclude that conversations concerning the killing of an innocent victim continued into the period relevantly proximate to the killing. In May 2011 Giles was asking Ryan whether he would join with Giles if he somehow became a hitman. In turn such conversations are capable of bearing on the view the jury take of Giles’s state of mind both at the time of preparation of the plans to kill in November 2011 and at the time of the killing in January 2012. When Ryan’s evidence as to the attitude of Giles to killing people is combined with the relevant computer entry, the plans and the circumstantial case as a whole, it is significantly probative of Giles’s state of mind at the time of the killing. It thus meets the requirements of s 97(1)(b).
Furthermore the limitations and relative weight of the evidence are readily capable of rational evaluation by a jury. In particular, the distinction between discussing in abstract the killing of an innocent person on the one hand and the forming of the intention to actually kill a particular individual is obvious. The jury would be entitled to treat the evidence as to Giles’s state of mind over a period prior to the killing as relevant to their understanding of the plans to kill and the circumstantial case as a whole. They could not, however, treat that evidence as itself evidencing an intention to kill the deceased. It is in essence context evidence.
Once these obvious distinctions are borne in mind then in my view the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and the provisions of s 101(2) are satisfied. Accordingly, I would admit the evidence of Ryan Hall as to discussions concerning killing an innocent victim.
I would however exclude the evidence of discussions concerning ‘weird things’.[24] It is not significantly probative of the prosecution case and any probative value it has is substantially outweighed by its obvious potential for prejudice.
[24]Paragraph [2] of the statement quoted at [58] above.
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