Director of Public Prosecutions v Kerr (Ruling No 2)

[2015] VSC 65

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0124
S CR 2014 0125

THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
DANIELLE KERR	First Accused
-and-
DARREN LEWIS	Second Accused

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JUDGE:	T. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2015
DATE OF RULING:	27 February 2015
CASE MAY BE CITED AS:	DPP v Kerr & anor (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 65

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EVIDENCE – Murder – First accused objects to the admissibility of evidence of the relationship between the first accused and the deceased – Whether evidence of relationship relevant – Relationship evidence – Hearsay –Whether probative value outweighs danger of unfair prejudiced to the accused – Risk of impermissible tendency reasoning – Relationship evidence admitted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Taylor QC with Ms Harper	Office of Public Prosecutions
For the First Accused	Mr S. Johns	Theo Magazis & Associates
For the Second Accused	Mr D. Dann	Valos Black & Associates

HIS HONOUR:

1. Both accused are charged with the murder of William Stevenson.  The prosecution does not nominate a particular accused as carrying out the acts that caused death.  It says that both accused are guilty of murder because they were part of a joint criminal enterprise, an object of which was to murder Mr Stevenson.  Accordingly, so the prosecution argue, regardless of which accused was responsible for the acts that caused death, but provided one or other was responsible, both are equally guilty of murder.

1. Ms Kerr says she was no part of any joint criminal enterprise to commit murder, although she concedes she was present whilst Mr Lewis killed Mr Stevenson and that she assisted Mr Lewis to dispose of the body.

1. Mr Lewis says that he was not part of any joint criminal enterprise to commit murder and that he was present when Ms Kerr murdered Mr Stevenson, and that he subsequently assisted Ms Kerr to dispose of the body.

1. In this context, in the case against Ms Kerr, the prosecution wish to adduce a body of ‘relationship evidence’ said to evidence acrimony in the previous relationship between Ms Kerr and the deceased man.

1. It is undisputed that Ms Kerr and the deceased lived for a time between about the beginning of 2013 and August of that year at the deceased’s Kerang unit.  Whether the relationship was a sexual one is in dispute.  Ms Kerr moved out of the unit in August 2013 and moved back in in about early December 2013.

1. On 1 January 2014, some of Mr Stevenson’s remains were found in his burnt out car near Mr Lewis’ farm in Wellsford.  Police took witness statements from both accused on 30 December 2013.  They gave identical accounts of last seeing Mr Stevenson on Christmas Day 2013 as he drove from Lewis’ Wellsford property.  Ms Kerr and Mr Lewis had been conducting a sexual relationship for a short time before these events.  There is a more detailed factual account of these circumstances in R v Lewis & Kerr Ruling No. 1.

1. Both accused were interviewed on 2 January 2014.  Both initially adhered to the exculpatory accounts given in their 30 December 2013 statements, but after a time, both departed from their original accounts.  Kerr, as I have indicated, said she was merely present while Lewis struck Mr Stevenson repeatedly to the head with a rock and stick.  Lewis told an investigator that Kerr hated the deceased, she stabbed him and hit him on the head with a rock.  He conceded that he hit the deceased once with a stick.

1. The relationship evidence being sought to be led is summarised in a helpful table provided by Mr Johns who appears for Ms Kerr.   The page references are to the depositions.  With adaptions to excise evidence no longer sought to be led, I reproduce that table.

6.  Witness	Statement	Committal	Temporal connection
J Boyd	P 214-218 Known dec since 25/11/12.  Dec was trying to get Kerr out of his flat.  She crashed his car.  About a month later she did it again, stole his car, wallet and phone.  He was afraid of her.  She assaulted him, kicked him and threw a heater at him.  He showed me bruising on his middle back, scratches under his eye and on his cheek.	Pages 2-7 Unclear what the argument was about	This witness does not provide any detail as to when the conversations occurred.
B Boyd	219-228 Bill turned up to work he had a black eye, sore ribs, skin off both hands.  Bill said Danielle had assaulted him, she was off her medication and was psychotic.  There was no violence up until about August.  Bill said it was a sexual relationship. Bill told me Danielle threw a gas heater at him.  He did not fight back as he was scared he’d get deported.  He wanted her out, he was scared of her when she was in her moods, he’d climb out the window.	8-15 Car smash around June 2013 Black eye in August 2013 Clear there was only one incident involving visible injuries.	One assault, involving black eye and a heater – August 2013
Chris Hunter	229-233 He was worried some friends of hers would come and beat him up because they had had an argument.  On another occasion – a few months before Christmas – he had a black eye, she had punched, kicked and thrown a portable heater at him.  He saw the scratches and black eye.  It was his understanding that Bill was trying to get Danielle to leave.	15-19 Saw the scratches and black eye.  It was a few months before Christmas.	One incident – portable heater – a few months before Christmas
Elizabeth Walder	234-239 A few months ago, I could hear her throwing things and calling him a name.  The day after – I noticed bruises and scratches on his face.  She also hit him on the shoulder with something – I saw a wide bruise on it.  He said she was attacking him, she had a knife to start with, throwing things, hit him on the shoulder with something heavy.  William told me that he had kicked Danielle out for what she was doing to him.	19-32 It was a few months before statement.  (Statement made 3/1/14) Couldn’t say what he was hit with on the shoulder.	Possibly same incident as others have referred to.  A few months prior to 3/1/14
Luke McIntyre	989-990 Bill said they had shagged a bit on and off but he had thrown her out a while ago after she had bashed him.  Bill mentioned something about an order being taken out against her for beating him up.  Bill showed me a picture on his phone and said this is what she did to me that day, he had cuts and scratches on his face and a big fat eye and bruising …	Nil
Sebastian Faraci	991-993 Saw scratches and bruises all over his body.  Arms, face, head.  He showed me some pictures on his phone of bruising.  He told me that he had been in an argument with her and she beat him up.  Hit him over the head with something, kicked him punched him.  He told me he asked her to leave.	Nil
Glenn Douglas	318-325 One night we were having tea in Danielle’s room and Bill started carrying on.  He was yelling at her telling her to come out and talk to him and carrying on like kids.  He was in her face and calling her a child.  She was telling him to stop.  They had a big argument it got physical.  Bill was in her face and she grabbed him and pushed up against the wall and hit him a couple of times.  He did not hit her back I saw a couple of little scrapes and skin off his head and that.  I got between them I did not get hit.  I got Danielle out and that was when she moved into Ken and Kim’s.	92	Around the time she went to stay at Ken and Kim’s.
Bruce Wright	240 On another occasion he came in and had a mark above his right eyebrow and cheek – said she threw a heater at him – bruise to hip.  He said he was curled up against the wall protecting himself while she was laying the boots into him.  He said he couldn’t fight back because he had an I/V order in Swan Hill.	32-46	Statement 1:  Dec 2013 Assault/heater: unable to place a time: earlier than statement 1.
Donna Stewart	294 Bill and Danielle Kerr had been sharing a flat in Kerang for a while about 18 months ago and then Bill threw her out.  I don’t know what happened to cause this as Bill actually never went into it.  About three weeks ago he let her move back in because he said he felt sorry for her.
Wayne Doidge	287 One time Bill told me that there had been a barney over a petty thing at his flat and she had attacked him, jumped all over him and punched and scratched him.	This occurred before the deceased kicked her out.

1. It is clear enough that the ‘heater incident’ is the subject of many of these witnesses’ evidence.  It seems to have occurred about August 2013.  Mr Stevenson variously described being punched or kicked and being struck with a portable heater.  This account is set out by J. Boyd, Hunter and Wright, and was accompanied by the witnesses observing injuries to Mr Stevenson.  I think it is likely that the account given by Mr Stevenson to Walder, B.Boyd, McIntyre and Faraci is a description of the same incident, but without specific reference to the heater.  All saw injuries and Walder and Faraci describe the deceased as saying he was hit with an object.  McIntyre’s evidence is that the assault was described to him as precipitating the deceased ejecting Ms Kerr from his flat.  Other evidence demonstrates this to be in about August 2013.

1. If this analysis is correct, then each of these seven witnesses gives evidence of Mr Stevenson describing a single event in August 2013; a highly charged single event with physical consequences to Mr Stevenson and an event which prompted the ejection of Ms Kerr from his unit.  Beyond this evidence, there is direct evidence of a different assault from Glenn Douglass that must also have occurred at about the same time (the Douglass incident).  Wayne Doidge’s evidence of an assault recounted to him by the deceased may relate to either the heater incident or the Douglass incident, or another separate incident.  Donna Stewart does not provide evidence of any acrimony in the relationship, but it does provide a context for Ms Kerr’s return to the Kerang unit.

1. Ms Taylor QC, who prosecutes with Ms Harper, submitted that the evidence that I have set out in paragraph [10] is relevant to critical facts in issue in the trial.  It may assist the jury in choosing between alternative explanations – complicity to murder or accessory after the fact; it demonstrates a climate of antipathy within the relationship; its absence would create an artificial vacuum in the evidence and it may assist the jury in assessing motive and thus the intent of Ms Kerr.

1. Ms Taylor submitted that the danger of any unfair prejudice that may accompany the admission of this evidence can be dealt with by direction.  The probative value of the evidence is submitted to be high.

1. Mr Johns submitted that, properly analysed, the evidence related to one, perhaps two, incidents months before the death of Mr Stevenson.  He submitted there was evidence of acrimony in the relationship independent of this evidence, and he pointed, to this end, to Mr Stevenson’s apparent fury on Christmas morning.  There is no overall pattern of antipathy and the position is further compounded by an absence of a reliable account of what prompted the ‘heater incident’.

Legal principles

1. The evidence must be relevant to facts in issue in the trial.  The ‘relationship evidence’ will be relevant if it assists the jury in choosing between alternative explanations.[1]  It is sufficient if the incident related makes a contribution which is not insignificant or insubstantial to a climate of antipathy.[2]  If the incident is isolated and at a considerable distance of time before the death, it may afford no evidence at all of relations between the parties at the time of the death.[3]  If it is not too remote, and its existence, along with other incidents or circumstances related in evidence, tends to establish a climate of antipathy, it is relevant.[4]  This type of evidence is traditionally admitted to prove motive, or to establish the intent of the accused at the time the alleged act occurred.[5]  The idea that there must necessarily be more than one event in a relationship as a precondition to its admissibility does not accord with principle and is unsupported by authority.[6]

   [1]Wilson v R (1970) 123 CLR 334, 339 and 344.

   [2]R v Iuliano [1971] VR 412, 416 (‘Iuliano’).

   [3]Ibid.

   [4]Ibid.

   [5]R v Anderson (2000) 1 VR 1, 12 [30] (Winneke P).

   [6]Ellis v R (2010) 30 VR 428, 440 [52] (Nettle, Neave and Harper JJA).

Conclusions

1. I consider the evidence to be relevant to facts in issue in the trial.  The prosecution contend that both accused agreed to kill the deceased and one or other or both carried out that plan.  The evidence of acrimony is relevant, in my view, to meet the defence assertion that Ms Kerr was no part of such an agreement and that Mr Lewis acted alone in killing the deceased, while she sat passively by.  It is also relevant to related sub-issues in the trial such as motive and intention.  It also provides a context against which the activities of the two accused and the deceased can be measured over the last few days of his life.

1. I consider that the impugned evidence does not relate to an isolated and insignificant event a ‘considerable distance in time before the death’.[7]  The ‘heater incident’ occurred in August, apparently a short time before Ms Kerr left the Kerang unit.  She was then absent from it and in no contact with the deceased until about December 2013.[8]  The ‘heater incident’ occurred, therefore, approximately four months prior to the death.  The relationship itself may have occupied perhaps one of those four months.  Further, the injuries bespeak of quite a significant assault.  Various witnesses observed or were told about a black eye, bruising on Mr Stevenson’s middle back, sore ribs, skin off both hands and scratches and bruises on the face and arms.  I have observed that the Douglass incident would appear to be a different incident, albeit one that must have occurred at about the same time.  It, too, involved Ms Kerr hitting the deceased apparently to the head. It follows that I do not accept Mr Johns’ submission that the evidence is irrelevant. 

   [7]Iuliano [1971] VR 412, 416.

   [8]Statement of Ms Kerr, 30 December 2013.

1. Alternatively, Mr Johns submits that I ought exclude the evidence under s 137 of the Act as its probative value is outweighed by the danger of unfair prejudice.  I consider the probative value of this evidence to be quite high.  I have spelt out my assessment of its relevance in paragraphs [15] and [16] of these reasons.  Whilst the evidence is to a large degree hearsay, and it is likely that the account given by Mr Stevenson will reflect only his side of events, in most cases his hearsay assertions are supported by objective evidence of injury.  I accept that the probative value of the evidence is diminished to some degree because it is hearsay will obviously not be be tested.  This is often the case in this type of ‘relationship evidence’ argument.  The probative value of the evidence is also diminished somewhat by the fact that the sum total of the various ‘heater incident’ accounts is incomplete.  There is no evidence as to what may have precipitated the incident.  After allowing for these limitations in the evidence, as I have said, I still consider its probative value to be quite high.  It provides some evidence of a climate of antipathy within the relationship and may assist the jury in assessing motive and Ms Kerr’s explanation and intentions at the time of the deadly assault.

1. In my view, there is some danger of unfair prejudice if this evidence is admitted.  The evidence involves prior misconduct by Ms Kerr and there is an obvious danger that the jury will reason impermissibly in a tendency manner.  There is also the forensic disadvantage that comes with this evidence being largely based on hearsay.  As I have observed, Mr Stevenson can never be tested about what is likely to be a partial or one-sided account.  Whilst this may diminish the theoretical probative value of this evidence, the fact remains that if it is admitted the accused has no opportunity to challenge the maker of the representations. I consider that I can attempt to mitigate the danger of unfair prejudice by offering strong directions on the impermissibility of tendency reasoning and the limitations of hearsay evidence.  I would also propose to give the jury an explanation of how they may permissibly use this evidence.  In my view, judicial directions will lower the danger of unfair prejudice that attaches to the reception of this evidence, but I doubt that it will completely eliminate that danger.

1. I am of the view that the danger of unfair prejudice does not outweigh the probative value of the impugned evidence and I will not exclude it under s 137.  There is one exception to this ruling.  In the statement of Brian Boyd, he recounts that the deceased told him that Ms Kerr, when she assaulted him, was off her medication and was psychotic.  I consider this amateur psychiatric opinion, expressed in a hearsay form, to have very little probative value as relationship evidence and to be potentially highly prejudicial.  I shall exclude it pursuant to s 137 should the defence request this.