Director of Public Prosecutions v McDermott (Ruling No 12)
[2016] VSC 823
•18 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG McDERMOTT |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 17 & 18 May 2016 |
DATE OF RULING: | 18 May 2016 |
CASE MAY BE CITED AS: | DPP v McDermott (Ruling No 12) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 823 |
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CRIMINAL LAW — Evidence — Murder — Incriminating conduct — Post-offence conduct — Flight from scene — Disposal of weapon — Whether evidence intractably neutral — Jury Directions Act 2015 (Vic) ss 18, 19, 20
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr B Kissane QC with Ms E Ruddle | Office of Public Prosecutions |
For the Accused | Mr J Desmond | Doogue O’Brien George |
HER HONOUR:
The accused in this trial has been charged with the stabbing murder of his former partner on 16 April 2014.
On 18 May 2016, I ruled that the prosecution could rely on certain evidence of the accused man’s post-offence conduct as evidence of incriminating conduct in this trial. These are my reasons.
The prosecution filed a ‘Notice: Evidence of Incriminating Conduct‘ on 17 September 2015 (the ‘notice’) as required under s 19 of the Jury Directions Act 2015 (Vic).
The notice stated that the prosecution would be relying on the following alleged post-offence conduct of the accused as evidence of incriminating conduct:
a. Fleeing the scene of the offending;
b. Failing to stop when challenged by witnesses; and
c. Disposing of the knife used in the offending as to attempt to hide the knife.
The notice referred to the various passages in the depositions which contained the evidence of alleged incriminating conduct. During the trial, the evidence was led from witnesses as part of the background narrative to the events which took place in the aftermath of the stabbing of the deceased.
The stabbing took place in the Sunshine shopping precinct near the intersection of Hampshire Road and Devonshire Road at around 12.20 pm. The accused man’s flight from the scene of the stabbing was seen by a large number of eyewitnesses. He was pursued to his car by some of the witnesses who tried to intercept him. A few witnesses saw a knife or similar object in the hand of the accused as he ran away.[1]
[1]Transcript of Trial, DPP v McDermott (Supreme Court of Victoria, S CR 2014 0195, Jane Dixon J, 6 April – 26 May 2016) (Trial Transcript) 1131 (Ian Jones); Trial Transcript 1339-42 (Lieu Thi Tran); Statement of Christine Brown, 22 April 2014, contained in Depositions 1367.
Shortly after, further eyewitnesses saw the accused at a nearby construction site on Anderson Road.[2] The project manager at the site approached the accused as he was about to jump over the fence around the site but was told by the accused to ‘fuck off’.[3] Construction workers then observed the accused in a part of the site that was closed to the public.[4] He was seen to bend down into a trench behind a pipe, and then to abruptly leave. The knife used in the stabbing was located very promptly afterward at the location where the accused had been observed to bend down.
[2]Trial Transcript 1713-4 (Ken Davis); Trial Transcript 1712-3 (Matt Swanwick); Trial Transcript 1691 (Joseph Sette).
[3]Trial Transcript 1691 (Joseph Sette).
[4]A witness said that the accused stood out because he was not wearing a neon safety vest: Trial Transcript 1715 (Ken Davies).
Mr Kissane QC, for the prosecution, submitted that the evidence of flight and disposal of the knife used in the killing was relevant to proof of the specific intent for murder. He further submitted that the evidence was relevant to proof that the act that caused death was performed consciously, voluntarily and deliberately, and to rebuttal of self-defence.
He argued that the evidence was capable of being used by the jury as incriminating conduct when viewed in connection with other evidence forming part of the prosecution case, in particular that:
(a) the accused purchased the knife just before the killing;
(b) after purchasing the knife, the accused lay in wait for the deceased to return to her car and purposefully attacked her; and
(c) the accused then had the presence of mind to return to his car and make good his escape.
He also argued that the urgent flight by the accused after the stabbing, along with his failure to respond to others who tried to intercede, was inconsistent with a self-defence scenario in which the accused was taken by surprise by the deceased producing the knife.
He submitted that the conduct of the accused in keeping hold of the knife used in the attack and the lengths to which he went to hide it at the construction site were inconsistent with the accused’s assertion that the deceased had unexpectedly presented the knife when the accused had approached her.
He also argued that the post-offence conduct was inconsistent with the accused lacking voluntariness or acting without control or awareness of his faculties.
He submitted that the trial had not been conducted in such a way that the main issue for the jury was between murder and manslaughter, with some significant degree of ambiguity about the accused man’s actions and intentions that led to death. The prosecution case was that the accused inflicted a number of stab wounds to vital parts of the deceased’s body in a sudden attack that took less than a minute and occurred in broad daylight in a busy public thoroughfare. The actions and manner of the accused man’s flight after the stabbing and his disposal of the knife were arguably the putting into effect of a planned killing and a planned escape.
Mr Desmond, for the accused, argued that the accused’s post-offence conduct was intractably neutral as to proof of the specific intent for murder. He argued that the accused man’s behaviour in fleeing the scene and hiding the knife was explicable by his panic in circumstances where a fatal stabbing had occurred and people were gathering and some were chasing him.
The post-offence conduct, he conceded, could be used toward an inference that the accused was aware that he had committed an unlawful killing. But he argued that it was equally consistent as between the specific intent for murder and the intent for manslaughter, and that it was, therefore, incapable of being used by the jury as evidence of incriminating conduct.
Section 18 of the Jury Directions Act 2015 defines ‘incriminating conduct’ and related terms:
"conduct" means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
"incriminating conduct" means conduct that amounts to an implied admission by the accused—
(a) of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
"offence charged" includes any alternative offence.
Section 20(1)(b) of the Jury Directions Act 2015 sets out the test to be applied in considering whether alleged post-offence conduct should left to the jury for consideration as evidence of incriminating conduct:
Evidence of incriminating conduct
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless –
…
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
In R v Ciantar,[5] the Court of Appeal pointed out that post-offence conduct is an aspect of circumstantial evidence that can be taken into account by a jury together with all of the other evidence, giving to it such weight as the evidence allows:
Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent.
[5]R v Ciantar (2006) 16 VR 26 [52] (‘Ciantar’).
Ciantar has been applied in several cases in Victoria where the issue of whether post-offence conduct is intractably neutral as between murder or manslaughter has arisen.[6]
[6]See, eg, Chalmers v The Queen (2011) 37 VR 464; Butler v The Queen (2011) 34 VR 165; Brooks v The Queen (2012) 36 VR 84; Zhu v The Queen (2013) 38 VR 77; DPP v Zhuang (Ruling) [2014] VSC 276.
In Zhu v The Queen,[7] the offender stabbed the deceased in the neck during an altercation with a group of people. He then fled the scene of the stabbing. On appeal, it was submitted that the evidence of flight was intractably neutral because of the inherent probability that the offender had fled the scene out of fear for his safety. In rejecting that submission, the Court of Appeal said:
In addressing that question, it must be understood that the court does not consider the post offence conduct, or lies, in isolation from any other evidence. Essentially, lies and post defence [sic] conduct, are a species of circumstantial evidence. As such, the question whether they had probative value must be considered in the context of all the evidence in the case.[8]
[7](2013) 38 VR 77.
[8]Ibid [40].
After consideration of the events immediately preceding the stabbing, the Court held:
In that context, in our view, the flight of the appellant from the scene could not be properly characterised as ‘intractably neutral’ of the question whether the appellant had intentionally inflicted the wound to [the deceased’s] neck. Certainly, there was an alternative explanation available for the appellant’s flight, namely, that he was frightened for his safety. However, in the circumstances in which the appellant had conducted himself in the manner in which we have just described, it could not be concluded that that alternative explanation was so inherently probable that the evidence of the appellant’s flight from the scene was thus ‘intractably neutral’.[9]
[9]Ibid [42].
In the present case, the prosecution case was that there was evidence of a building animosity culminating in expressions of frustration and anger by the accused towards the deceased in the days before the killing, as a result of family law proceedings ending unfavourably for him. Just hours before the killing, the Sunshine Magistrates’ Court had made final a family violence intervention order preventing him from approaching the deceased and their children. It is in that context that the prosecution allege that the accused purposefully bought a knife, lay in wait for the deceased before approaching her in public (in breach of the intervention order) and fatally stabbed her.
Under s 20(1)(b) of the Act and consistently with authority, I was obliged to consider the alleged post-offence conduct in conjunction with the whole of the evidence in the case, including the background circumstances and events and the relationship between the deceased and the accused in the lead up to the stabbing.
I determined, on the basis of the evidence as a whole, that the alleged post-offence conduct was reasonably capable of being viewed by the jury as evidence of incriminating conduct. I concluded that the prosecution should be entitled to rely on the conduct in question as going toward proof that the accused had stabbed the deceased:
(a) consciously, voluntarily and deliberately;
(b) with the specific intent for murder; and
(c) without a subjective self-defence belief.
In my view, it was open to the jury to conclude on the whole of the evidence before them that the accused man’s actions at the scene of the incident were planned and intentional. The pre and post-offence conduct of the accused as described by witnesses, shown in CCTV footage or able to be inferred from circumstantial evidence included the following series of actions, according to the Crown case:
(a) the accused observed the deceased’s parked car and parked his car nearby and close to the Granary Cafe;
(b) the accused bought a knife from the Spare Change store;
(c) the accused returned to the Granary Cafe to wait for the deceased to appear;
(d) the accused moved quickly towards the deceased when he saw her crossing the road at the intersection of Hampshire Road and Devonshire Road;
(e) the accused stabbed the deceased and continued the attack despite people shouting at him to stop;
(f) the accused left the deceased on the ground in a critical state and ran to his nearby car, despite others trying to intercede;
(g) the accused drove off without waiting to speak to anyone, including his son who was with him at the Granary Cafe and who had approached the car as the accused got in and drove away;
(h) the accused backed into another parked car in his haste to escape the scene;
(i) the accused stopped at a nearby construction site and gained entry by jumping over fences and road works;
(j) the accused hid the knife in a trench behind a pipe in the construction site; and
(k) the accused continued to make good his escape.
Viewed in that context, I concluded that the post-offence conduct of the accused in fleeing from the scene of the stabbing and hiding the knife was reasonably capable of being viewed by the jury as the actions of a person who knew that he had committed a planned and deliberate stabbing attack on the deceased in public, inflicting multiple stab wounds to vital parts of her body with murderous intent and leaving her mortally wounded on the footpath, and that that he knew he needed to take a number of swift and immediate actions to escape apprehension.
The post-offence conduct was also capable of being viewed by the jury as inconsistent with the accused’s actions being involuntary or non-deliberate, or performed in self-defence in circumstances of a knife being suddenly produced by the deceased and being turned by the accused back onto the deceased. Instead, the actions were capable of showing that the accused had the presence of mind to run away on foot avoiding his pursuers, recalling exactly where he had left his car, where his car keys were and what kind of location would be a good place to stop his car and hide the knife as he fled the scene. This was relevant in light of the accused man’s claims not to remember much of the stabbing and its immediate aftermath.
In accordance with the Jury Directions Act 2015, the jury would need to be given warnings about alternative explanations for the arguments advanced by the prosecution that the conduct amounted to an implied admission of guilt and could be used towards proof of the disputed elements of murder or to negate self-defence.
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