Director of Public Prosecutions v Folau (Ruling No 3)
[2022] VSC 48
•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 3) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 48 |
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CRIMINAL LAW — Charges of murder, intentionally causing serious injury and home invasion — Application for exclusion of evidence of incident preceding the alleged offending — Whether evidence relevant — Evidence not relevant within the meaning of s 55 of the Evidence Act 2008 (Vic) — Application granted — Evidence excluded.
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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 third pre-trial ruling in relation to this matter.
The allegations against the accused 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 summarised in the following paragraphs of the prosecution opening concerning the earlier incident in which the accused was not a participant:
[12]On 15 May 2020, Ghattas was out of the house for most of the day, returning home in afternoon. He arrived to find Betts in the bedroom speaking to a person Ghattas knows as Christian. The prosecution says this is Christian Movondo.
[13]Ghattas had a discussion with Movondo which eventually turned to ice (methylamphetamine). At the time, Ghattas was a regular ice user. Movondo produced some ice in a pipe and asked Ghattas to try it. Ghattas smoked a little and asked Movondo how much it was and whether Movondo could help him to get some. Movondo made a call in an apparent attempt to do so, then told Ghattas he would see if he could get some more. He then left the house.
[14]At around 4:00 am the next day (16 May 2020), Betts woke Ghattas and told him that Christian was back, and that he had arranged something.
[15]Ghattas went to the lounge and found Christian and another male, Mark Tanuvasa, whom Ghattas had met a few weeks before and knew as “Junior”. Tanuvasa had known Movondo for about a year or two prior to the alleged offending, and will say that he was in regular Facebook contact with him, Movondo using the profile name of “Christian Dior”.
[16]Movondo told Ghattas that he had arranged for him to buy some ice from his mate, and that they had to go to the mate. They had a discussion about how much the ice cost. Ghattas said he had $1200 cash. Movondo said that was fine, and that they would work something out.
[17]The three men then left Nolan Drive in Tanuvasa’s vehicle, a Ford Falcon XR6. Tanuvasa’s partner was also in the car. Tanuvasa ultimately drove them to a location near the Doncaster Hotel. A short time later, a black BMW arrived and parked alongside the Ford. Ghattas gave Movondo the cash he had and was told it was $30 short. Movondo added $30 cash of his own, and Ghattas transferred him $30 via Pay ID, using Movondo’s mobile number, which he provided to Ghattas for that purpose.
[18]Bank records show that transaction took place at 6:09 am on 16 May 2020. The telephone number associated with the transfer was 0450 471 900 and the recipient’s name was “Christian Mavondo”.
[19]Movondo got out of the Ford. Two people got out of the BMW and walked towards the Ford. One had a mask on the bottom half of his face, covering his nose and mouth. Ghattas says this male looked Caucasian and had dirty blond coloured hair. He was carrying a baseball bat. Ghattas did not pay much attention to the second male. Tanuvasa is expected to say both men exited from a Mercedes, that they were both wearing masks, and that they were both carrying firearms.
[20]The male Ghattas recalled had a bat leaned into the open door of the car and started yelling at Ghattas, asking who he was. He said something along the lines that, “You guys are taking me for a goose” and ordered Ghattas to get out of the car, which Ghattas did. He then demanded Ghattas hand over all his belongings. Ghattas complied, and the male said, “That will teach you guys a lesson”. The two males then got back into the BMW and drove away. Ghattas heard a sound that thought was a gunshot, coming from the direction of the BMW.
[21]Movondo had left the vehicle at this point and Tanuvasa commented that he must have “legged it”. Tanuvasa drove the Ford off in the opposite direction to the BMW before doubling back. As the car neared where they had been parked, Movondo emerged from bushes and got into the car.
[22]Ghattas was driven home. Movondo and Tanuvasa said they would be back in an hour to sort things out and to get Ghattas his stuff back, however they did not return.
As I follow it, the happening of this incident is said by the prosecution to establish a motive on the part of the participants in the charged offending excluding the accused, and also explains how a photo identification of the accused came to occur the details of which become relevant in the next ruling on the admissibility of that identification.
Mr Desmond on behalf of the accused objected to this narrative being led on the basis of a lack of relevance. None of what is said to occur between Ghattas, Movondo and others on 15 May 2021 and in the early hours of 16 May 2021 involves or concerns the accused, even on the Crown narrative. Mr Desmond therefore submitted that the narrative in paragraphs [12]-[22] of the prosecution opening is consequently not relevant to any fact in issue between the Crown and his client. Mr Desmond also submitted that should the Court find the narrative to be relevant it should nevertheless be excluded pursuant to s 137 of the Evidence Act 2008 (Vic) (‘the Act’) given it can only be of slight probative value and the danger of unfair prejudice to the accused is great if it is led.
Ms Mahady on behalf of the prosecution submitted there are two reasons why this evidence is relevant to the case. The first is that it provides a motive for the accused and Segio’s attendance at 14 Nolan Drive, Epping and the ensuing offending, as the accused and Segio are said to be asking for Ghattas and drugs when they arrive at the house. The second reason is that it is relevant to the identification of the accused. It was submitted that it is a result of the armed robbery that has occurred in the early hours of 16 May 2020, and the involvement of Movondo, that causes the witness Paige Murray to look on Mavondo's Instagram profile, which then leads to the identification of the accused by witness Kelly Betts. That identification is also impugned and I will deal with that in ruling no. 4. Ms Mahady did not concede that the narrative in paragraphs [12]-[22] of the prosecution would result in any unfair prejudice to the accused within the meaning of s 137 of the Act.
Pursuant to s 55 (1) of the Act, evidence is relevant when, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. This definition directs attention to the capacity rather than the weight of the evidence.[1]
[1]DPP v Paulino (2017) 54 VR 109, [66]-[67].
The primary fact in issue in this trial is whether the accused participated in the events that caused the death of the deceased. I am unable to see anything in the evidence proposed to be led concerning the events that occurred on 15 May 2021 and the early hours of 16 May 2021 that could rationally affect that issue. It may invest others with a motive of some kind but not the accused in this trial.
I am of the view that the prosecution leading identification evidence of witness Betts, which is the subject of the fourth pre-trial ruling in relation to this matter, would not require reference to the alleged armed robbery. It is possible for the prosecution to lead the Facebook identification evidence without including the narrative of witness Murray overhearing the name ‘Christian’ come up in discussion about the armed robbery of Ghattas, then searching Movondo’s Instagram profile before coming across the Facebook pictures.
The evidence is consequently inadmissible pursuant to s 55 of the Act. In the circumstances, it is unnecessary to address counsel’s submissions regarding whether the evidence ought to be excluded pursuant to s 137 of the Act.
The evidence will be excluded.
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