Director of Public Prosecutions v Denis Mariona (a pseudonym)[1]
[2019] VSCA 107
•17 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0039
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DENIS MARIONA (a pseudonym)[1] | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the respondent and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | MAXWELL P, PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 April 2019 |
| DATE OF JUDGMENT: | 17 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 107 |
| JUDGMENT APPEALED FROM: | DPP v [Mariona] (Unreported, County Court of Victoria, Judge Condon, 25 February 2019) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Circumstantial case – Motive – Evidence of prior animosity between accused and victim – Whether probative of state of mind – Whether probative of fact of offending – Evidence admissible – Appeal allowed – Evidence Act 2008 ss 135, 137, Criminal Procedure Act 2009 s 295.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A J Grant | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr P J Hannebery SC with Ms C B Hollingworth | Michael J Gleeson & Associates |
MAXWELL P
WEINBERG JA:
Summary
The respondent, Denis Mariona, is facing one charge of stalking, two of burglary, two of theft and nine of criminal damage. All of the offending is alleged to have occurred at a property in Christmas Hills (‘the target property’).
The target property was created by the subdivision of a larger property on which, at the time of the subdivision, Mr Mariona resided with his partner. Until the subdivision, Mr Mariona had had access to the land which became the target property, and had used a large shed on that land which was close to what became the boundary between the two properties.
The prosecution case is that Mr Mariona had a grievance against the new owner of the target property (‘S’), because S’s purchase of the land denied him the access he had previously enjoyed. It is alleged that Mr Mariona committed the offences in an attempt to prevent S from using the land and the shed and, ultimately, to force him to move away altogether.
The question raised by the present application is the admissibility of evidence of statements allegedly made by Mr Mariona to S, which are said to show his animosity to S. On more than one occasion, S will say, Mr Mariona told him that he ‘would do everything he could’ to get rid of him. Mr Mariona allegedly claimed to have a large amount of money and said he would ‘do whatever it takes to get rid of’ S.
The trial judge ruled that the evidence was not admissible. In her Honour’s view, it had ‘minimal or little probative value’. The inference sought to be drawn from the evidence — that Mr Mariona had a motive to take hostile action against S, and had acted on that motive — involved ‘nothing more than rank speculation’. The evidence was excluded, her Honour said, either in the exercise of her discretion under s 135 of the Evidence Act 2008 or under the mandatory exclusion provisions of s 137 of the Act.
For reasons which follow, we respectfully disagree. In our opinion, the evidence of the hostile statements made by Mr Mariona to S, and of the circumstances in which they were made, has substantial probative value in this case. The admissibility of the evidence rests on well-established principles concerning evidence of prior animosity between an accused person and the victim of subsequent offending.
The very terms in which the general threats were allegedly made — that ‘he would do everything he could to get rid of him’ and ‘do whatever it takes to get rid of you’ — were expressive of an intention to persist in a course of hostile conduct for as long as might be necessary to achieve the stated objective. On the assumption which must be made — that the evidence is accepted by the jury[2] — it is well capable of being viewed as probative of Mr Mariona’s involvement in the offending conduct.
Background circumstances[3]
[2]IMM v The Queen (2016) 257 CLR 300, 312 [39].
[3]Paragraphs 3–18 are taken from the Reasons of the primary judge.
The offences were allegedly committed between 1 March 2010 and 14 March 2016, at a semi-rural property at 238 Ridge Road, Christmas Hills. That property was originally part of a larger block of land known as 228 Ridge Road, Christmas Hills. Some time prior to the commission of the alleged offences, the owner subdivided 228 Ridge Road and created 238 Ridge Road, the target property. The new block of land consisted of 30 acres. It included a number of old structures, including an old bluestone cottage and a 600-square-metre shed.
At the time of the alleged offences, Mr Mariona was in a long-term relationship. He and his partner moved to 228 Ridge Road in about 1997. Prior to the subdivision, he had had access to the 30 acres that were subsequently removed from the title. He used the land and the large shed, which was close to the boundary of the subdivision. After the subdivision and the subsequent sale of the 30-acre parcel of land to S, however, Mariona was no longer legally entitled to use that part of the property.
S took possession of the target property some time after settlement on 22 February 2010. Not long after he took possession of the property, he began to experience difficulties in his relationship with Mariona. There was a disagreement about the use of the driveway, as Mariona claimed that he was entitled to use it.
S asserts that, on more than one occasion, Mariona told him that ‘he would do everything he could to get rid of him’. Mariona claimed to have a large amount of money and said he would ‘do whatever it takes to get rid of you’.
At some unknown stage, S also placed locks on the gates of the property. Mariona confronted him and said ‘Hey fuckwit, lose the fucking locks’. S subsequently removed the locks from the gate in an attempt to keep the peace. These locks appear to relate to the question of an easement on the property, which was a bone of contention between the two parties subsequent to S taking possession of the property.
The allegation of stalking is that, between 1 March 2010 and 19 June 2011, Mariona stalked S by a series of acts which are said to constitute a course of conduct. Some of those acts, as particularised in Charge 1, also form the basis of individual charges on the indictment.
Charge 2 alleges that, between 24 November 2010 and 1 December 2010, Mr Mariona stole a roll of fencing wire belonging to S. Charge 3 alleges that between 9 December 2010 and 11 December 2010, he stole four Maremma sheepdog puppies belonging to S.
On 10 December 2010, S attended the Heidelberg Magistrates’ Court to seek an intervention order to prevent Mr Mariona from verbally abusing him. He attended Court a further four times, the last of which was the date set down for the contested hearing (27 September 2011). On that occasion, S withdrew his application.
Charge 4 alleges that, between 15 December 2010 and 17 December 2010, Mariona damaged a padlock belonging to S. Charge 5 alleges that, between 20 December 2010 and 21 December 2010, Mariona damaged five CCTV cameras belonging to S. Charge 6 alleges that, in the same time frame, Mariona damaged a water tank belonging to S.
Charge 7 alleges that, between 28 January 2011 and 26 February 2011, Mariona damaged five CCTV cameras belonging to S. Charge 8 alleges that, in the same time frame, Mariona damaged five padlocks belonging to S. Charge 9, also in the same time frame, is a charge of burglary.
Charge 10, also in the same time frame, is an allegation that Mariona damaged electrical wiring, a water tank and a water filtration system belonging to S. Charge 11 alleges that, between 1 March 2011 and 21 March 2011, Mariona damaged three padlocks belonging to S.
Charge 12 alleges that Mariona damaged two windows at the home of S’s mother on 2 June 2011. Charges 13 and 14 are allegations of burglary and criminal damage. The final allegations are that Mariona broke into the property at 238 Ridge Road and damaged 18 windows, a mirror and a shower screen belonging to S.[4]
[4]The date range is between 1 September 2015 and 14 January 2016
The evidence proposed to be led by the prosecution in support of these allegations was summarised by the judge as follows:
(i)evidence of an antagonistic relationship between Mr [Mariona] and [S];
(ii)evidence of a motive to commit the offences … as revealed in exchanges in which Mr [Mariona] is said to have told [S] that he would do everything he could to ‘get rid of him’;
(iii)the timing of the alleged offences and opportunity to commit them. The prosecution submit that the fact that the alleged offences commenced on 31 October 2010 (although … the stalking charge contains an allegation of March 2010), some eight months after the property settled, is a piece of circumstantial evidence that purportedly links Mariona] to the commission of the alleged offences, as is the fact that he is [S]’s neighbour in a semi-rural area;
(iv) the nature of the damage caused to the property; and
(v)the coincidence between the timing of some of the alleged offences[5] and the days upon which [S] attended the Magistrates’ Court to seek an intervention order against [Mariona].
[5]This reasoning relates only to Charges 5–6 and 7–10.
As her Honour noted:
There is no physical evidence that links the accused man to any of the acts in question. There is no DNA evidence, no fingerprints, no surveillance evidence, no CCTV, nor other identification evidence, which links the accused man to any of the charges on the Indictment. Therefore, the prosecution relies heavily on the evidence of relationship and motive in order to invite a jury to infer that it was the accused man who was responsible for each and every one of the acts in question.
The evidence of motive
The substance of the disputed evidence is set out in the prosecution opening in these terms:
The accused also threatened [S] and told him that he would do everything he could to get rid of him. He claimed to have a large amount of money and would do ‘whatever it takes’ to get rid of him.
[S] placed locks onto the gates of the property. The accused confronted him and said, ‘Hey fuckwit — loose [scil, lose] the fucking locks’. [S] subsequently removed the locks from the gate in an attempt to keep the peace.
The prosecution submitted to the judge that the evidence had probative value in establishing Mariona’s motive to offend. The defence response was that it would involve ‘bald assumption and undue speculation’ for the prosecution to ask the jury to infer that, because of the threats uttered to S, Mr Mariona had acted on those threats and was therefore the perpetrator of the offending.
The defence contended that it was a ‘highly unusual’ case because — apart from the evidence said to show motive — there was no other evidence from which the jury could infer that Mr Mariona was guilty of the alleged offences. In ruling that the evidence should be excluded, her Honour accepted the submission that the case was different from those discussed in the authorities. In those cases, her Honour said, there had been
other independent or objective evidence combined with motive from which a jury could reasonably infer that the accused person perpetrated the acts in question with the relevant intent.
Her Honour went on:
As to the particulars of the threats made, there is no evidence as to the specific occasions upon which the accused, Mr [Mariona], is said to have made the threats to [S]. There is no evidence that any of the occasions were proximate to any of the alleged offences. The most that can be said of these exchanges is that at some time between February 2010 and October/November 2010, some threats were made to [S] by Mr [Mariona] about getting ‘rid of him’.
Furthermore, no context was provided as to the meaning behind the threat. While [S] interpreted it to mean that Mr [Mariona] wanted him off the property, this is clearly not admissible and it illustrates very well the dangers underlying admission of this evidence. It can only invite speculation as to the meaning behind it.
In my view, exercising my discretion pursuant to s 135 of the Act, I refuse to admit this evidence. The probative value of this evidence derives from an inherently speculative form of reasoning. While I do note the question of relevance was conceded by the defence, there is an argument open here that because the inference sought to be drawn from it is inherently speculative, then the evidence has minimal or little probative value. Be that as it may, I refuse to admit the evidence in the exercise of my discretion under s135 of the Evidence Act or, in the alternative, the evidence is excluded on the same basis pursuant to s 137 of the Act.
As to the alleged demand to remove the locks, her Honour accepted that the evidence might be relevant to the question of motive and/or the relationship between the parties, but continued:
To my mind, it is the inference that is sought to be drawn from this evidence that is a barrier to its admissibility. Similarly, with [the evidence of threats], the prosecution seeks to draw an inference from this exchange as a piece of circumstantial evidence upon which a jury can find that the accused man acted upon his motive, assuming they were to find that he did in fact have a motive. This, to my mind, involves nothing more than rank speculation. For these reasons and those expressed in the course of oral argument, the evidence is excluded pursuant to s 135 or, in the alternative, s 137 of the Evidence Act.
Consideration
It has long been accepted that evidence will be admissible to prove that an accused person had the motive to commit the offence(s) charged. As Gaudron, McHugh and Hayne JJ said in De Gruchy v The Queen:
Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged.[6]
Their Honours quoted the following observation by Lord Atkinson in R v Ball:
Evidence of motive necessarily goes to prove the fact of the homicide by the accused … in as much as it is more probable that men are killed by those who have some motive for killing them than by those who have not. [7]
[6](2002) 211 CLR 85, 92 [28].
[7][1911] AC 47, 68 (‘Ball’).
More particularly, evidence of prior dealings between an accused person and a victim of subsequent offending is admissible if it ‘tends to prove motive or enmity of the accused’ at the time of the offending.[8] Such evidence is admissible to prove not only the accused’s state of mind but also his/her responsibility for the offending.[9] Whether the evidence in question is relevant, and has probative value, will depend on all of the circumstances, including in particular the nature of the prior dealings and whether they can be ‘reasonably viewed’ as having a connection with the offending conduct.[10]
[8]R v Tsingopoulos [1964] VR 676, 681 (‘Tsingopoulos’).
[9]Ball [1911] AC 47, 68.
[10]Tsingopoulos [1964] VR 676, 681.
One of the most significant factors affecting admissibility is likely to be the lapse of time between the prior dealings and the offending conduct. In Tsingopoulos, for example, it was held that evidence of adverse statements made by an accused man about his wife some years before her death was inadmissible at his trial for her murder. The Full Court concluded that, although the evidence supported an inference that the accused man had ‘entertained hostility towards his wife’ at the time the statements were made, the evidence ‘reasonably viewed’ did not support an inference that he still had the same feeling at the time of her death.[11]
[11]Ibid 681–2.
In Wilson v The Queen,[12] by contrast, the High Court upheld the admissibility, in the trial of a husband for the murder of his wife, of evidence of statements made by the deceased to the accused more than a year before her death. She had been heard to say, ‘I only know you want to kill me for my money’ and, later, ‘I know you want to kill me, why don’t you get it over with?’. The Court quoted with approval the following statement by Kennedy J in R v Bond:
The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.[13]
[12](1970) 123 CLR 334 (‘Wilson’).
[13]Ibid 338, quoting R v Bond [1906] 2 KB 389, 401.
Chief Justice Barwick expressed the view that this proposition would apply to evidence of:
any act of the accused the proof of which is itself relevant to the question whether the accused in fact did the act charged.[14]
His Honour quoted the following statement by Duff CJ in R v Barbour:
If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well.[15]
[14]Ibid 338.
[15]Ibid, quoting R v Barbour [1939] 1 DLR 65, 67.
Menzies J said:
It seems to me that nothing spoke more eloquently of the bitter relationship between [the couple] than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.[16]
[16]Ibid 344.
More recently, in Higgins (a pseudonym) v The Queen,[17] this Court was concerned with the admissibility of evidence tending to show the state of mind of the accused person on previous occasions. The Court there referred to the principle that
[17][2016] VSCA 47 (‘Higgins’).
earlier, but proximate, conduct or state of mind evidence might form an integral part of a ‘transaction’ so as to enable a proper understanding of the charged conduct and is so admissible.[18]
The Court cited the following statement by Dixon J in O’Leary v The King:
Without [the evidence in question] the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner’s general violent and hostile conduct might well serve to explain his mind and attitude, and therefore to implicate him in the resulting homicide.[19]
The Court in Higgins concluded by saying:
it is sufficient for present purposes that we state that proof of a connected series of events, not necessarily closely contemporaneous in a temporal sense to the act charged, but which evince a particular continuing state of mind may be admissible for purposes other than for tendency reasoning.[20]
[18]Ibid [15].
[19]Ibid, quoting O’Leary v The King (1946) 73 CLR 566, 577–8.
[20]Ibid [19] (emphasis added) (citations omitted).
As McHugh J pointed out in Harriman v The Queen, evidence of this kind is properly categorised as circumstantial evidence.[21] In the present case, the evidence of the statements is admissible — as part of a circumstantial case — not only to prove Mr Mariona’s ‘particular continuing state of mind’ but also to prove that he was the offender.[22]
[21](1989) 167 CLR 590, 633–4.
[22]See, eg, R v Hissey (1973) 6 SASR 280, 289.
With respect to her Honour, it is not correct to say that the impugned evidence — the statements allegedly made by Mr Mariona to S — is the only evidence linking Mr Mariona to the offending. Other relevant circumstances are:
·his occupation of the un-subdivided property up to the time of subdivision, and his use during that period of the target property and the shed;
·his continued occupation of 228 Ridge Road after the subdivision, and his inability to use the land and the shed as he had formerly done;
·the fact of S’s application for an intervention order against Mr Mariona, during the period of the offending. This is capable of proving hostility on the part of Mr Mariona towards S of a kind, and to a degree, sufficient to prompt court action; and
·the character of the offending conduct, much of which was directed at disrupting S’s enjoyment of the property and interfering with his efforts to keep it secure. It is of particular significance, in our view, that three of the charges involve damage to padlocks, as one of the alleged statements involved specific reference to locks.
In that setting, in our view, the evidence of the alleged statements is of high probative value. On the assumption which must be made for the purposes of assessing admissibility — that the evidence will be accepted by the jury — the impugned evidence is capable of demonstrating not only Mr Mariona’s motive to take adverse action against S but — crucially — his strongly-expressed intention to do so.
Moreover, as already pointed out, the terms in which the statements of intention were made are such as to remove any possible issue of temporal disconnection. On the evidence, Mr Mariona wanted to convey to S that he would pursue every possible course of action to ‘get rid’ of him — that is, to drive him away from the target property — and that he would persist with that course of action for
as long as was necessary to achieve that objective.
With respect, for the prosecution to invite the jury to reason in this way will not be to invite them to engage in speculation. On the contrary, the evidence is properly relied on, as part of a circumstantial case, to invite the jury to draw what might be thought to be an obvious and direct connection between statements of intent to take hostile action against S and a series of acts of precisely that character.
There is, in our view, little likelihood of the evidence being used for any other purpose. The danger of unfair prejudice is minimal. It follows, in our opinion, that the decision to exclude the evidence was not reasonably open to the judge in the circumstances of the case.
PRIEST JA:
With respect to the Director’s applications concerning the ‘S’ indictment, I agree with the orders proposed by Maxwell P and Weinberg JA, whose reasons I have had the benefit of reading in draft.
In her ruling, the judge excluded the evidence set out in paragraphs 13 and 14 of the Prosecution Opening dated 19 February 2019:
13. The accused also threatened [S] and told him that he would do everything he could to get rid of him. He claimed to have a large amount of money and would do ‘whatever it takes’ to get rid of him.
14. [S] placed locks onto the gates of the property. The accused confronted him and said, ‘Hey fuckwit — loose [scil, lose] the fucking locks’. [S] subsequently removed the locks from the gate in an attempt to keep the peace .
Relying on ss 135 and 137 of the Evidence Act 2008 (‘the Act’), the judge refused to admit the evidence summarised in paragraph 13 — despite counsel for the respondent having conceded its relevance — because ‘[t]he probative value of this evidence derives from an inherently speculative form of reasoning’. Her Honour noted, first, that ‘there is no evidence as to the specific occasions’ upon which the
respondent is said to have made the threats to S; secondly, that there is no evidence that any of the occasions ‘were proximate to any of the alleged offences’ (the ‘most that can be said’ of those exchanges being that they occurred sometime between February and October or November of 2010); and, thirdly, that ‘no context was provided as to the meaning behind the threat’. Importantly, the judge observed:
While I do note the question of relevance was conceded by the defence, there is an argument open here that because the inference sought to be drawn from it is inherently speculative, then the evidence has minimal or little probative value. Be that as it may, I refuse to admit the evidence in the exercise of my discretion under s 135 of the [Act] or, in the alternative, the evidence is excluded on the same basis pursuant to s 137 of the Act.
As to the evidence at paragraph 14, the judge said that ‘this evidence may well pass the relevance test as it may be relevant to the question of motive and/or the relationship between the parties’, but that ‘it is the inference that is sought to be drawn from this evidence that is a barrier to its admissibility’. Her Honour said that ‘the prosecution seeks to draw an inference from this exchange as a piece of circumstantial evidence upon which a jury can find that the [respondent] acted upon his motive, assuming they were to find that he did in fact have a motive’. The judge said: ‘This, to my mind, involves nothing more than rank speculation’. She excluded the evidence pursuant to ss 135 and 137 of the Act.
The judge was wrong, in my view, to exclude the evidence.
In the course of her ruling, the judge summarised the prosecution’s submissions as follows:
[The prosecutor] says that the evidence is both probative and admissible against the [respondent]. [The prosecutor] says that the evidence is relevant to the question of motive/relationship between the parties. The prosecution argues that the inference sought to be drawn from the exchange between the two is not speculative. The prosecution says that it is a reasonable and safe inference that, combined with the other evidence in the case, is open to the tribunal of fact. The prosecution relies on various authorities to support the contention that evidence as to motive is admissible to prove that an accused perpetrated a criminal act.[23]
[23]Chamberlain v The Queen[No 2] (1984) 153 CLR 521; Plomp v The Queen (1963) 110 CLR 234; Rv Koeleman (2000) 2 VR 20.
The essential error infecting her Honour’s reasoning is to be found in the immediately following passage:[24]
I note, here, that as I apprehend each of the authorities put before me, they were all cases unlike the present one, in which there was other independent or objective evidence combined with motive from which a jury could reasonably infer that the accused person perpetrated the acts in question with the relevant intent. I also interpolate here that admissible evidence as to motive and relationship should not be conflated with admissible evidence that goes to proof of intent.
[24]Emphasis in original.
With respect, I consider that there is other evidence in this case which, when taken with the impugned evidence, might properly go in proof of the charges on the S indictment. Moreover, insofar as her Honour seems to have thought that the evidence of alleged motive could not be used to prove that the respondent ‘perpetrated the acts in question’, and did so with ‘the relevant intent’, she was incorrect.
Resorting to first principles, evidence is relevant in a proceeding if, were it accepted, it ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.[25] Except as otherwise provided by the Act, relevant evidence is admissible.[26] A fact in issue in a criminal proceeding is one that bears on an element (or elements) of a charged offence.[27]
[25]Section 55(1) of the Act. See DPP v Paulino (2017) 54 VR 109, 124–5 [66]–[67] (Priest JA) (‘Paulino’).
[26]Section 56(1) of the Act.
[27]Murdoch (a pseudonym) v The Queen (2013) 40 VR 451, 468-9 [76] (Priest JA).
In the present case, one of the principal facts in issue — if not the principal fact in issue — is whether the respondent performed the various physical acts forming the basis of the individual charges on the indictment. In order to be relevant and admissible, therefore, the impugned evidence must — when considered with the other evidence in the case — have the capacity rationally to affect the probability of that fact in issue.
Evidence that a person had a motive for doing an act has long been regarded as admissible circumstantial evidence going to prove that he or she did the act. Thus in Plomp[28] it was held that, on a charge of murder, proof of the accused’s motive for the killing may — considered with all of the other circumstantial evidence — be used as evidence both that the deceased was killed and that the death was occasioned by the accused; and that it is not necessary to prove that some act of the accused caused the death before evidence of a motive for killing can be used to prove guilt. Hence, Dixon CJ observed:[29]
It is objected that Plomp’s motives cannot be taken into account until it is shown by evidence that in some physical way his actions were responsible for his wife’s death. ... Until that is shown, evidence of motive cannot be used, so it is said, to prove guilt. There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
[28]Plomp v The Queen (1963) 110 CLR 234.
[29]Ibid 242 (emphasis added). See also 247–50 (Menzies J).
To like effect, Gaudron, McHugh and Hayne JJ said in De Gruchy:[30]
Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R v Ball:[31]
Evidence of motive necessarily goes to prove the fact of the homicide by the accused . . . inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.
[30]De Gruchy v The Queen (2002) 211 CLR 85, 92–3 [28].
[31][1911] AC 47 at 68.
As a matter of common experience, often a piece of circumstantial evidence will have little probative value on its own, but, when considered with other pieces of circumstantial evidence (themselves perhaps flimsy if viewed in isolation), will support a compelling inference of fact.[32] In this case, if taken on its own, the evidence of motive may have had little (if any) probative value. Quite clearly, however, the evidence of motive had to be considered with all of the other circumstantial evidence in the case. Hence, there was evidence that the respondent had used a large shed near the boundary of the subdivision, and had become disgruntled by exclusion from its use after the property was sold. Further, the property was located in an isolated and semi-rural location; the respondent had been residing in the adjacent property with his long-term partner for many years; and the offences took place very shortly after S took possession. And importantly, it is open to infer that the damage on charges 4 to 12 was specifically targeted at measures that S had taken to secure the property. Thus, there was damage to padlocks; a surveillance system; electrical wiring; a water tank; and a water filtration system.
[32]Paulino, 131 [97].
For these reasons, the evidence of motive in this case has not insubstantial probative value which is not outweighed by the risk of any unfair prejudice to the respondent (or any danger that the evidence will be unfairly prejudicial to the respondent; be misleading or confusing; or cause or result in undue waste of time).
For these, and the reasons advanced by Maxwell P and Weinberg JA, the judge’s ruling with respect to paragraphs 13 and 14 of the Prosecution Opening must be set aside.
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