Director of Public Prosecutions v Folau (Ruling No 2)
[2022] VSC 47
•15 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0311
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| TORRIS FOLAU | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2021 |
DATE OF RULING: | 15 February 2022 |
CASE MAY BE CITED AS: | DPP v Folau (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 47 |
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CRIMINAL LAW — Charges of murder, intentionally causing serious injury and home invasion — Application for exclusion of witness’s evidence pursuant to ss 55, 90 and 137 of the Evidence Act 2008 (Vic) — Whether evidence relevant — Whether hearsay evidence is an admission — Whether admission of evidence is unfair — Whether probative value of the evidence is outweighed by the danger of unfair prejudice to the accused — Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Melissa Mahady with Ms Kathryn Hamill | Office of Public Prosecutions |
| For the Accused | Mr John Desmond | Matthew White & Associates |
HIS HONOUR:
Torris Folau (‘the accused’) is charged with one charge of home invasion, one charge of causing serious injury intentionally and one charge of murder, all of which allegedly occurred on the 16th of May 2020.
There are a number of issues to be resolved in advance of the trial before the jury. This is the second pre-trial ruling in relation to this matter.
The allegations are adequately set out for the purpose of this ruling in the introduction to the summary of prosecution opening filed pursuant to section 182 of the Criminal Procedure Act 2009 (Vic), which is as follows:
[1]The accused is charged with home invasion, intentionally causing serious injury and murder. It is alleged that, during the evening of Saturday 16 May 2020, the accused, in company with a person by the name of Chris Segio, attended at 14 Nolan Drive, Epping.
[2]One of the occupants of 14 Nolan Drive is Nadim Ghattas, a drug user. Ghattas had been the victim of an armed robbery in the early hours of that day. He suspected a person by the name of Christian Movondo to have had inside involvement in the incident and had made that suspicion known to Movondo during the day on 16 May 2020. The evidence shows that both Movondo, and a person by the name of Mark Tanuvasa – both of whom were present when Ghattas was robbed – were acquainted with the accused.
[3]A number of people, some of them drug users, were present at the home when the accused and Segio attended the property and remained outside for a period of time, the accused engaging with some of the occupants while outside, asking variously for Ghattas and for drugs. None of the occupants knew the accused or Segio.
[4]At approximately 8:30pm, the accused and Segio broke into the house by forcing the front door. Both went into a bedroom where the female occupants were hiding, and the accused took possession of a knife the women had placed on the bed for protection. They then left the bedroom and at some point, shortly thereafter, separated.
[5]The accused went to the lounge area, where Hashmat Nawabi and Ahad Mohamad were situated. He stabbed Nawabi accused (sic) several times to the head and neck with the knife, one of the wounds being immediately fatal, and assaulted Mohamad. As a consequence of that assault, Mohamad received a traumatic brain injury.
Objection has been taken on behalf of the accused to the evidence proposed to be led by the prosecution from the witness Kayla Cardamone. The objection is taken based on what appears in the prosecution opening which summarises that evidence and is in the following terms:
[62]Kayla Cardamone lives in Arcadia Avenue, Mickleham. She is a former partner of the accused, and they have a child together. Cardamone is expected to say that the accused arrived at her house, unannounced, during the evening of 16 May 2020. He told Cardamone he had driven there, though she did not see or hear his vehicle. He played with their daughter for about 15 minutes before leaving. Cardamone had last seen the accused the day before, in a blue Commodore, which Cardamone believed might have been his brother Tony’s car. On that occasion, he had visited her and stayed at her residence until around 2:00 to 3:00 am.
The objection to this evidence on behalf of the accused is pursuant to ss 55, 90 and 137 of the Evidence Act 2008 (Vic) (‘the Act’).
The submissions were as follows.
Mr Desmond submitted that the evidence was irrelevant and that it was not clear whether this incident occurred before or after the ‘charged event’ which occurred at about 8:30pm. He submitted that it was vague and imprecise as to when the accused arrived and therefore does not meet the threshold for relevance. He submitted that if what the accused said is an admission it should be excluded under s 90 of the Act on the basis of unfairness or under s 137 of the Act on the basis there's a real risk it could be unfairly used by the jury to conclude that he has arrived home after the murder, and he's told his partner that he's the driver of this car.
In her submissions, Ms Hamill for the Director noted that paragraph 57 of the prosecution opening refers to CCTV that was obtained from a number of locations in the street in which the alleged offending occurred, namely Nolan Drive, and streets throughout Epping to Wollert and then through to Mickleham, in the period subsequent to the offending.
The Crown argue that the CCTV plots the Commodore moving from Nolan Drive through to Arcadia Avenue in Mickleham which is where Ms Cardamone lives. The CCTV portion that shows the vehicle traveling past 65 Arcadia Avenue Mickleham, is timestamped 9:58pm. Other evidence is that the time stamp is accurate. The Crown therefore say that on the entirety of the evidence the jury will be asked to conclude that the visit occurs at that time. Ms Hamill also noted that Arcadia Avenue in Mickleham is not a through road and not a suburban street but rather semi-rural.
Bearing in mind the issue of identity in the trial, the Crown say this evidence is capable of placing the movements of the vehicle and places the accused in Arcadia Avenue on the night in question. Mr Desmond argues in response that the available CCTV evidence does not track the car continuously.
Ms Hamill also argued that what is said by the accused to Cardamone is an admission, or is capable of being used as an admission, because it is against the accused’s interest in the case as he has put identification in issue. If the jury accepts the evidence, that would assist in concluding that the accused was present. It was also argued that there was nothing unfair about the admission that would engage s 90 of the Act or that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused such as to enliven s 137 of the Act.
In my opinion Cardamone’s evidence is relevant and admissible on the issue of identity for the reasons outlined by Ms Hamill on behalf of the Director. It is a piece of circumstantial evidence that is, in the context of the available CCTV footage, capable of being properly used by the jury on the issue of whether or not the accused was the offender when the fatal incident occurred, and is thus relevant.[1] I am of the view that Cardamone’s evidence of what the accused said is an admission as it is adverse to his interest in the outcome of the proceeding.[2] I am not persuaded that admitting the evidence would be unfair to the accused within the meaning of s 90 of the Act or that it should otherwise be excluded pursuant to s 137 of the Act.
[1]DPP v Paulino (2017) 54 VR 109, [66]-[67]
[2]Evidence Act 2008 (Vic) ss 81-82; Haddara v The Queen [2014] VSCA 100, [125].
The application for the evidence be excluded is refused.
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