Director of Public Prosecutions v Hills (Ruling No 6)
[2010] VSC 486
•28 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1491 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAREN HILLS, NC, BRODIE COOPER, RAC |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2010 | |
DATE OF RULING: | 28 October 2010 | |
CASE MAY BE CITED AS: | DPP v Hills & Ors (Ruling No 6) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 486 | |
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CRIMINAL LAW – Trial – Evidence – Attempted murder and kidnap – Counsel for accused intending to cross-examine witness as to prior criminal conduct involving co-accused – Whether relevant – Whether tendency evidence – Evidence Act 2008 (Vic) ss 97, 135.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G Horgan SC and Ms E Ruddle | Office of Public Prosecutions |
| For the Accused Karen Hills | Ms C Randazzo SC and Mr J Desmond | Robert Stary Lawyers Pty Ltd |
| For the Accused NC | Mr S Bayles | Robert Stary Lawyers Pty Ltd |
| For the Accused Cooper | Mr W E Stuart | James Dousley & Associates |
| For the Accused RAC | Mr I Polak | Dowling McGregor |
HIS HONOUR:
The four accused, who are currently on trial, are Karen Hills, her son NC, Brodie Cooper and RAC. They are charged with a number of offences arising from events which are alleged to have occurred on 9 December 2008. In those events, Ms Leah Freeman was violently abducted from her home in East Brunswick, and driven in the boot of a motor vehicle to the Maribyrnong River, Keilor, where an attempt was made to drown her. The offences, with which the accused are charged, include kidnap and attempted murder. It is alleged that those offences were committed by the accused in company with Kylie Meulenbrock and Craig Hills. The trial of Craig Hills has been adjourned because he is too unwell to stand trial. In April this year, Kylie Meulenbrock pleaded guilty to charges arising out of the events of 9 December 2008. She is due to be called as the next witness in this trial.
The trial of the four accused commenced on 11 October. On that day the jury were empanelled and openings were made by the Crown and on behalf of each of the accused. The main witness, Leah Freeman, has given evidence. She was extensively cross-examined, in particular by Mr Desmond, junior counsel for Karen Hills. A number of other witnesses have also so far given evidence in the trial.
On Monday 25 October, for the first time, counsel for Karen Hills notified counsel for the co-accused that they intended to cross-examine Ms Meulenbrock, and, if necessary, call evidence, as to a violent assault in which it is alleged Meulenbrock was involved, together with NC and Cooper, on 25 November 2008. It has also been foreshadowed by Ms Randazzo SC, who appears with Mr Desmond for Karen Hills, that it is intended to cross-examine Ms Meulenbrock as to other violent criminal activities in which she might have been involved with Cooper and NC before 9 December 2008. Mr W Stuart, who appears for Mr Cooper, and Mr S Bayles, who appears for NC, have each objected to the foreshadowed cross-examination of Meulenbrock in that manner. That objection was supported by Mr G Horgan SC, who appears with Ms Ruddle for the Crown. In addition Mr Polak, who appears for the co-accused RAC, has objected to part of the foreshadowed cross-examination.
In order to determine the issue which has now been raised, it is necessary to set out, in short detail, the substance of the Crown case. Ms Meulenbrock will give evidence that at about 8.00 pm, while she was at a friend’s house, she was visited by her co-accused and Craig Hills, and invited to go for a drive. The Crown then alleges that the accused, together with Meulenbrock and Craig Hills, proceeded to drive to Ms Freeman’s house in Clara Street, East Brunswick. Cooper was driving one vehicle, and Karen Hills was driving the other vehicle. The two cars parked around the corner from Ms Freeman’s house. The Crown then alleges that all six offenders forcefully broke into Ms Freeman’s house, assaulted her, and abducted her. It is then alleged that Ms Freeman was forced into the boot of Ms Meulenbrock’s vehicle. From there she was driven to the Maribyrnong River. When they arrived at the river, the offenders removed her from the boot of Meulenbrock’s vehicle, and forced her to the banks of the Maribyrnong River. Freeman was then thrown into the river, where Craig Hills, with the encouragement of the co-accused, attempted to drown her. The Crown case is that the offenders desisted from their efforts in that regard, because they apprehended that another vehicle was approaching. They decamped leaving Freeman in the water. Ultimately, Ms Freeman extracted herself from the river, and, eventually, found her way to a service station.
The Crown alleges that the attack by the accused, Craig Hills and Meulenbrock on Ms Freeman, and the offences committed in relation to her, arose from a previous incident, in which the partner of a relative of Ms Freeman had stabbed Craig Hills. As a result of that incident, there was, it is alleged, ill feeling between Leah Freeman and Craig and Karen Hills.
In the present trial, the primary issue between the Crown and each of the accused concerns the question of the presence of the accused at the events related by Ms Freeman. Each of the accused has denied being present at, and participating in, those events. A notice of alibi evidence has been served on behalf of Karen Hills.
It is in that background that counsel for Karen Hills has foreshadowed cross-examination of Ms Meulenbrock concerning an incident on 25 November 2008. In order to determine whether the matters, which are sought to be elicited on cross-examination, are relevant to this case, I have been provided with a number of documents relating to the charges laid against Ms Meulenbrock, Cooper, NC and a fourth individual, Ms Koby Guy, arising out of those events. In essence, it is alleged that on 25 November 2008, at about 4.30 pm, Cooper, Meulenbrock, NC and Guy were travelling in Meulenbrock’s vehicle at the Brimbank Central Shopping Centre. At that time, the male victim Celerino Dell Rosario (Celerino) and his wife Winnie Dell Rosario (Winnie) were already present in the car park. An incident had apparently occurred in the car park between Celerino and a cyclist. When Ms Meulenbrock parked her car, it is alleged that, without warning or provocation, Cooper assaulted Celerino. As a consequence, Celerino fell to the ground. There, it is alleged, he was kicked by both Cooper and NC. In the meantime, Winnie Dell Rosario came to the aid of her husband. A short time thereafter, it is alleged that Meulenbrock and Guy began kicking and punching Winnie Dell Rosario, causing her to fall to the ground. Celerino attempted to assist his wife, whereupon Cooper again assaulted him.
As a result of those incidents, Meulenbrock, NC, Cooper and Guy have all been charged with a number of offences. Meulenbrock has pleaded guilty to recklessly causing injury, and as a result the three other charges against her were withdrawn.
When counsel for Karen Hills foreshadowed cross-examining Meulenbrock concerning the incident of 25 November 2008, counsel for her co-accused objected, inter alia, on the basis that the evidence which was sought to be elicited was “tendency” evidence under s 97(1) of the Evidence Act, in respect of which no notice had been given to the co-accused pursuant to s 97(1)(a) of that Act. Ms Randazzo responded that she did not intend to lead the evidence as tendency evidence. However, as an abundance of caution, on the evening of 25 October, a notice under s 97(1) was given to the co-accused of the intention to cross-examine Kylie Meulenbrock in relation to the matters which I have just related.
Ms Randazzo submitted that the evidence, which is sought to be adduced from Kylie Meulenbrock, is not tendency evidence. Rather, she submitted that the evidence is relevant to the relationship between Meulenbrock and the co-accused “to the exclusion of a relationship with Karen Hills, specifically on the issue of involvement in criminal activity”. In particular, it was submitted that each of the accused have been charged, in relation to the events of 9 December 2008, as being involved in those events pursuant to a joint criminal enterprise. The Crown will rely upon the pre-existing relationship between the parties as part of the circumstantial evidence to establish the joint enterprise. Thus, it was submitted, it is relevant for counsel for Karen Hills to “explore” that relationship, including to cross-examine Meulenbrock, and, if necessary, lead evidence, to the effect that the pre-existing relationship between Meulenbrock, Cooper and NC, involved them, without adult assistance, indulging in violent criminal activity. Indeed, it was submitted that counsel for Karen Hills should be entitled to cross-examine Meulenbrock, not only on the events of 25 November 2008, but also on “what activities, criminal or otherwise, Meulenbrock and particularly her co-accused (I interpolate NC and Cooper) got up to in the weeks leading up to the charged act”.
It was thus submitted that it was relevant to cross-examine Meulenbrock in relation to the incident of 25 November 2008, because it was relevant to a relationship, involving acts of violence by the three young persons being committed in company with each other, using drugs, and being young people who were “friends associating and prepared to be violent as a group within a short period of time prior to the charged incident”.
It was submitted that the cross-examination, to which I have just referred, as to the relationship of Meulenbrock with the other two young co-accused, Cooper and NC, is relevant to the issue of the alleged participation by Karen Hills in the events of 9 December 2008. As I understood Ms Randazzo’s argument, she submitted that evidence, that Meulenbrock, Cooper and NC had been involved in violent criminal assaults together, and without involvement of Karen Hills, is relevant to the probabilities as to whether Karen Hills was present at, and participating in, the events of 9 December 2008, in which Meulenbrock, Cooper and NC are alleged to have been involved.
Mr W Stuart, who appears for Cooper, submitted that I should not permit the cross-examination of Ms Meulenbrock as to the matters foreshadowed by Ms Randazzo. In particular, he made six primary submissions in support of that opposition, namely:
(1)The evidence, which is sought to be adduced from Ms Meulenbrock, is, if anything, tendency evidence. Reasonable notice of the intention to adduce that evidence has not been given to Cooper as required by s 97(1)(a) of the Evidence Act.
(2)The evidence is not admissible, as tendency evidence, pursuant to s 97(1), because the evidence is incapable of having any probative value, let alone significant probative value, as required by s 97(1)(b).
(3)The evidence is not relevant to any issue between the prosecution and Karen Hills.
(4)Insofar as it is proposed, on behalf of Karen Hills, to adduce evidence as to a relationship, involving criminal violence, between Meulenbrock, Cooper and NC, such evidence would relate to a collateral issue. The calling of that evidence would create a trial within a trial, which would distract the jury, and affect the proper conduct of the trial.
(5)If the evidence, sought to be adduced on behalf of Karen Hills, has any relevance, it should be excluded, in the exercise of my discretion, under s 135 of the Evidence Act.
(6)If evidence is admitted, the trial of Cooper would be unfairly prejudiced. As a result, he should be entitled to a separate trial from the trial of Karen Hills. Mr Stuart submitted that in those circumstances, the trial of Cooper should precede the trial of Karen Hills.
Mr Bayles, who appears for RAC, fundamentally supported the submissions of Mr Stuart. In particular, he submitted that the evidence, which is sought to be elicited from Meulenbrock in cross-examination, and which, it has been foreshadowed, might be led from other witnesses, is not capable of being probative of any fact in issue between the Crown and Karen Hills, and in particular it is irrelevant to the principal issue, namely, the presence of Karen Hills in the events of 9 December 2008. Mr Bayles also submitted that if I were persuaded that the evidence did have any probative value, I should exclude it in the exercise of my discretion under s 135 of the Evidence Act.
Mr Polak, who appears for RAC, also raised concerns as to the potential impact of the foreshadowed evidence on his client. The events of 25 November 2008 did not involve RAC. However, Mr Polak pointed out that, in the course of submissions, Ms Randazzo foreshadowed seeking to cross-examine Meulenbrock, and (apparently) call evidence, relating to other criminal activities which Meulenbrock might have been involved in with the co-accused, including RAC. He stated that in respect of such foreshadowed evidence, he supported the submissions made by Mr Stuart and Mr Bayles.
Finally, Mr Horgan also submitted that the foreshadowed cross-examination of Ms Meulenbrock by Ms Randazzo was incapable of having any probative value in relation to the issues between the Crown and Karen Hills, and, in particular, to the principal issue, namely, the presence and participation by Karen Hills in the events of 9 December 2008.
The critical question, then, is whether the evidence, which is sought to be adduced on behalf of Karen Hills, could be relevant to an issue between the Crown and Karen Hills. In particular, the question is whether that evidence could potentially be relevant to the issue as to whether Karen Hills was present at, and participating in, the events of 9 December 2008 as related by Leah Freeman.
Section 55(1) of the Evidence Act provides that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Thus, the question is whether the evidence, as to previous violent offending by Meulenbrock, NC and Cooper in company, could, if accepted, rationally affect the assessment of the probability of Karen Hills being present at the events of 9 December 2008.
It is appropriate to approach this question, first, by considering whether the evidence, sought to be elicited from Ms Meulenbrock, could be admitted as tendency evidence under s 97(1) of the Evidence Act. As I stated, Mr Stuart submitted that the evidence could not constitute tendency evidence for the purposes of that provision. In submissions in reply, Ms Randazzo, ultimately, conceded that point. In my view, that concession by Ms Randazzo was plainly correct.
There are a number of factors which would necessitate a conclusion that the evidence, which is sought to be extracted in cross-examination, could not amount to tendency evidence. In particular, there are a number of critical differences and dissimilarities between the incident of 25 November 2008 and the events of 9 December 2008. Those differences include the following. The incident of 25 November was apparently spontaneous; on the other hand, the incident of 9 December was pre-meditated. The incident of 25 November took place in a public place; the incident of 9 December commenced in the home of Leah Freeman. There appears to have been no motive for the assaults committed on 25 November; on the other hand, the incident of 9 December 2008 is said to have been motivated by some hostility between Leah Freeman and Craig and Karen Hills. The incident of 25 November involved four young persons acting in company. On any view, in the incident of 9 December, at least one adult was present, namely, Craig Hills. The incident of 9 December 2008 involved an abduction and kidnapping, which did not occur in the incident of 25 November. The incident of 9 December occurred over a substantial period of the evening of that day, whereas the incident of 25 November occurred over a short period.
It is well established that evidence of prior criminal conduct, by an accused, is not relevant to establish, generally, a propensity to violence by that accused. Rather, in order to qualify as tendency evidence under s 97, it needs to be demonstrated that there is a relevant degree of similarity between the previous conduct and the events with which the court is concerned; see GBF v The Queen[1]. There is no striking or other similarity between the manner in which the assault of 25 November occurred, and the manner in which the offences at 9 December were carried out. That is, the previous event of 25 November does not disclose any modus operandi, nor was it attended by any particular hallmark, which it relevantly shares with the incident of 9 December. Furthermore, the incident of 25 November was but one single event. In general, the courts are slow to accept that offending, or conduct, on one occasion, is significantly probative of a fact, for the purposes of s 97(1), unless there are significant or remarkable similarities between the previous incident and the incident in question.[2]
[1][2010] VSCA 135, [27], [31]; CGL v RPP [2010] VSCA 26, [38]; JLS v R [2010] VSCA 204, [20].
[2]GBF v The Queen (above) at paragraph 27.
For those reasons, in my view, it is clear that the evidence, which is sought to be adduced from Ms Meulenbrock, could not qualify as tendency evidence under s 97 of the Evidence Act. In other words, the evidence could not be admissible to establish a modus operandi between Meulenbrock, Cooper and NC to commit violent criminal offences together, without the involvement of an adult person. Similarly, the evidence could not be admissible to establish a tendency by Meulenbrock, Cooper and NC to be engaged in violent criminal offences, in the absence of an adult, such as Karen Hills. Any such attempt to justify the admission of the evidence on that basis would fail for the reasons I have just described. In particular, such an attempt would be fatally flawed by reason of the circumstance that, on any view, at least one adult, Craig Hills, was involved with the younger offenders in the events of 9 December.
The question, which then arises, is whether the evidence, sought to be adduced from Ms Meulenbrock by counsel for Karen Hills, is otherwise relevant to a fact in issue between the Crown and Karen Hills. Ms Randazzo submitted that the evidence was not sought to be relied on as tendency evidence. Rather, she submitted that it was evidence relevant to the relationship between Meulenbrock, Cooper and NC. Pausing there, such a characterisation by Ms Randazzo of the evidence evades, but does not address, the critical question, namely, as to why evidence, as to that relationship, should be relevant to a fact in issue between the Crown and Karen Hills. In particular, it does not address the question as to how evidence as to the involvement of Meulenbrock, Cooper and NC, in previous criminal acts together in the course of that relationship, could rationally affect an assessment of the probabilities of the issue whether Karen Hills was present at, and participating in, the events of 9 December 2008.
In answer to that proposition, Ms Randazzo pointed out that the Crown relied on a joint criminal enterprise between the four accused Craig Hills and Kylie Meulenbrock on 9 December. She submitted that accordingly it was relevant for her to “explore”, in cross-examination, the relationship between three of those participants, namely, Meulenbrock, NC and Cooper. She submitted that if she were not permitted to fully “explore” that relationship, including its criminal aspects, she would be unfairly precluded from cross-examining as to a relevant issue between the parties.
For the purposes of this decision, I am prepared to assume that it may be relevant for Karen Hills’s counsel to cross-examine Ms Meulenbrock in order to show that there was a previous friendly relationship between Meulenbrock, Cooper and NC. I am also prepared to assume that it may be relevant for counsel to demonstrate that Karen Hills was not a member of that group of friends. However, assuming for the purposes of this decision that such cross-examination might, conceivably, have relevance to the issues in the case, the question which remains is how it could be potentially relevant, to the primary issue between the Crown and Karen Hills, to demonstrate that the previous relationship between Meulenbrock, Cooper and NC involved them, from time to time, committing violent crimes together.
It is not put on behalf of Karen Hills that the three young people were parties in some type of conspiracy, existing exclusively themselves, to commit violent criminal offences. Rather what is sought to be put to Ms Meulenbrock is that in the course of their friendly relationship, the three young people, from time to time, violently assaulted other persons. In my view, it has not been demonstrated, in any way, how such evidence could rationally affect the probabilities of the case between the Crown and Karen Hills. It would seem that it is sought to be demonstrated that there was a relationship between Meulenbrock and the two co-accused, to the exclusion of a relationship with Karen Hills, which involved them in criminal activity. If that is the basis upon which it is put that the evidence is relevant, then that basis is patently flawed. Clearly, the fact that Karen Hills did not participate in the events of 25 November 2008 could not, rationally, affect the probabilities as to whether she was involved in the events of 9 December 2008. As Mr Horgan correctly submitted, any line of reasoning that, because Karen Hills was not present at the incident of 25 November 2008 (or at any other such prior incident) involving Meulenbrock, NC and Cooper, it is less likely that she was present at the events of 9 December 2008, would be a plain non sequitur. Such reasoning would be patently illogical.
Indeed, on analysis, it would seem that, notwithstanding the protestations of Ms Randazzo to the contrary, what is sought to be elicited, from that evidence, is the existence of a relationship between the three persons in which, from time to time, they were prone to indulge in violent criminal activity together, but without the involvement, or participation, of an adult. Viewed in that light, the evidence is impermissible tendency evidence which, Ms Randazzo correctly conceded, is not admissible. Further, the obvious fallacy in the argument relied on by Ms Randazzo is that, on any view, at least one adult, namely, Craig Hills, was present at, and participating in, the events of 9 December. Indeed, Craig Hills was, on the evidence of Leah Freeman and Meulenbrock, the principal participant in those events. Accordingly, even if it could be demonstrated that Meulenbrock, Cooper and NC previously were jointly involved in assaults, without the participation of an adult, such evidence could not, logically, bear on the probabilities as to whether they were involved in the events of 9 December 2008 without the participation of Karen Hills.
For those reasons, in my view the evidence, which is sought to be adduced in cross-examination of Ms Meulenbrock, is not relevant to any issue between the Crown and Karen Hills. Accordingly, it is irrelevant to the case. Further, if I were to admit that evidence, it would clearly prejudice the right of both Cooper and NC to a fair trial. I do not consider that the type of prejudice, which would be engendered by such evidence, could be appropriately nullified by a direction given by me to the jury. If, contrary to the views which I have expressed, there is any relevance in the evidence sought to be adduced on behalf of Karen Hills, such relevance is entirely tenuous, and is significantly outweighed by the prejudice which would be thereby occasioned to both NC and Brodie Cooper. For that reason, I would reject the evidence in the exercise of my discretion under s 135(a) of the Evidence Act. Further, in my view, such evidence would cause a result in an undue waste of time, and, for those reasons, I would refuse to admit it pursuant to s 135(c) of the Act. However, as I have already concluded, I do not consider that the evidence has any relevance at all.
For the above reasons, I uphold the objections made on behalf of both NC and Cooper and by the Crown to the cross-examination by counsel for Karen Hills of Meulenbrock as to the participation or involvement by Cooper and NC in the events of 25 November 2008. I also uphold the objection made on behalf of Cooper, NC and RAC, and by the Crown, as to the intended cross-examination by counsel for Karen Hills of Meulenbrock as to the participation or involvement of Cooper, NC and RAC with Meulenbrock in previous criminal activity, including violent offending, together.
That conclusion does not, of course, preclude counsel for Karen Hills from cross-examining Meulenbrock as to her own participation in the assaults which occurred on 25 November 2008, and as to her plea of guilty to those assaults. However, it does preclude counsel from cross-examining Ms Meulenbrock as to the identity of the persons with whom she committed those offences.
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