Director of Public Prosecutions v McEwan, Robb and Dambitis (Ruling No 1)
[2012] VSC 139
•17 April 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Nos. 78, 79 and 112 of 2011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN McEWAN, JAMES ROBB AND NORMUNDS DAMBITIS |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 16 April 2012 | |
DATE OF RULING: | 17 April 2012 | |
CASE MAY BE CITED AS: | DPP v McEwan, Robb & Dambitis (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 139 | |
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CRIMINAL LAW – Evidence – Murder – Consciousness of guilt – Whether flight capable of amounting to consciousness of guilt.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC with Ms J Condon | Solicitor for Public Prosecutions |
| For the First Accused (McEwan) | Mr B Cash | |
| For the Second Accused (Robb) | Mr A Lewis | C D Traill Lawyers |
| For the Third Accused (Dambitis) | Mr J Toal | Michael J Gleeson & Associates |
HIS HONOUR:
The three accused are charged with the murder of Scott Shaw on 18 September 2009. Those charges arise out of a brutal assault which was inflicted on Scott Shaw at about 9.45 pm on Saturday 12 September 2009, on the eastern side of the South Gippsland Highway just north of the intersection of that highway with Huon Park Road. The assault took place next to a Cranbourne Transit bus. In the course of the assault, Mr Shaw suffered severe head injuries, including three separate fractures to the skull, one of which extended into the base of the skull. As a result of his injuries, Mr Shaw died in the Alfred Hospital six days later.
Mr A Tinney SC, who appears with Ms J Condon for the prosecution, seeks to rely on two pieces of evidence as demonstrating a “consciousness of guilt” on behalf of the accused. The first item of evidence concerns what Mr Tinney describes as the “flight” by the three accused from the scene of the assault. The second item of evidence, which relates only to the accused man Stephen McEwan, concerns evidence that, while the accused and two other men were departing from the scene, McEwan told them “not to talk about it”.
The prosecution case is now well advanced, with some 40 witnesses having already given evidence in the trial. It is not anticipated that any further evidence, to be called by the prosecution, will affect the question whether the prosecution should be entitled to rely on the two pieces of evidence, to which I have just referred, as evidence demonstrating a “consciousness of guilt” on behalf of the accused. There has been some delay in the trial, because, in recent days, some of the jurors have been ill. Accordingly, I have heard argument on this issue. The ruling which I now give in relation to it is based on the evidence which has been given to date. Of course, if further evidence is given in the trial, which might affect the issue, then the conclusions which I reach in this ruling may need to be revisited.
Shortly before the incident in respect of which the three accused men are charged, the deceased man, Scott Shaw, and his friend, Troy Broughton, had been involved in an unprovoked assault on a 17 year old youth, Kayde Brown, nearby in Lawless Drive. Shortly after that incident, Shaw and Broughton then became involved in an unprovoked assault on three other youths, Jacob Wellington, Tipene Wellington, and Christopher Stilo, in the service lane which is on the south eastern corner of the intersection of the South Gippsland Highway and Huon Park Road. In the course of that incident Mr Shaw took possession of a machete.
That incident was observed by the three accused men, who, at the time, were travelling with two other men, Michael Burgess and Rodney Gillespie, in Mr McEwan’s Chrysler motor vehicle on the South Gippsland Highway, near the intersection of Huon Park Road. As a result, McEwan drove his vehicle into the service lane. When someone in the Chrysler told Shaw and Broughton to leave the younger men alone, Shaw ran at the Chrysler vehicle, and struck it at least two times with the machete. The three accused then alighted from the Chrysler. There is some dispute in the evidence as to whether they immediately gave chase to Shaw. It is however undisputed that, at about that time, Shaw either walked or ran north along the South Gippsland Highway. At one stage, he was observed on the central median strip. He left the median strip, and approached two vehicles who were stationary at the lights, brandishing the machete.
It is not in dispute that at some stage the three accused men then chased Shaw. Footage, from the four cameras on the bus which was stationary near the intersection, has been tendered in evidence. The video from the front of the bus depicts McEwan leading the chase of Shaw, with Dambitis close behind him. Robb is some distance behind them, and closer to the eastern side of the highway. Shaw is seen to have an implement in his hand. The video also discloses that McEwan and Dambitis each had implements also in their hands.
Shaw, McEwan and Dambitis then ran to the driver’s side of the bus, while Robb, who was some distance behind, remained on the side of the highway. Dambitis is then seen to run to the passenger side of the bus. As he did so, Robb threw an object (which was a beer can) towards the passenger side of the bus. Shortly after he did so, the window of the front door on the passenger side of the bus was smashed. Shortly after that, Shaw was then seen by witnesses to be surrounded by three or more men near the rear of the bus on the passenger side of it. Witnesses described how Shaw was then struck to the ground, and brutally bashed and kicked, while he was on the ground.
As I stated, it is not in dispute that the three accused men pursued Shaw towards the bus. The principal factual issue in the case is whether the prosecution has proven, beyond reasonable doubt, that the three accused, or any of them, were involved in the assault of Shaw, in the course of which the fatal blow or blows were struck which caused the death of Shaw. The prosecution case against each of the three accused men is that they engaged in a joint criminal enterprise to murder Shaw. There is some evidence that, if the prosecution does prove that the three men were involved in the fatal attack on Shaw, they might have been acting in self-defence, either themselves, or of others. Thus it is common ground that self-defence should be left to the jury, together with the uncharged alternatives of defensive homicide and manslaughter.
It is also not in issue that, at some stage, the three accused left the area near the bus, and made their way, south, to the Chrysler vehicle. Burgess, in his evidence, states that Robb was first seen walking towards the Chrysler, and that shortly after, McEwan and Dambitis appeared, running. When they got to the car, someone said “get in, get in”. Pausing there, the departure of the three accused, from the scene, is the first piece of evidence, on which the prosecution seeks to rely as evidence of a consciousness of guilt by the accused.
According to Mr Burgess, while the Chrysler was departing from the scene, the accused man, McEwan, said “I disarmed him, he tried to hit me with it”. Shortly after that, McEwan said to the other occupants in the car that they were “not to talk about this”. That statement, made by Mr McEwan, is the second piece of evidence, upon which the prosecution seeks to rely as evidence of consciousness of guilt by McEwan. I should interpolate that Mr B Cash, who appears for McEwan, has accepted that that evidence may be left to the jury as evidence of consciousness of guilt. I agree with the concession made by Mr Cash in that respect.
Mr Tinney has submitted that the evidence of the flight of each of the three accused, after the assault of Shaw, is capable of constituting evidence that each of the accused were conscious of three of the elements of murder, namely:
(a)That they had been involved in the attack on the deceased man.
(b)That in assaulting the deceased, they had intended to cause the death of Shaw or to cause him really serious injury.
(c)That they were not acting in self-defence in assaulting Shaw.
In the course of submissions, Mr Tinney accepted that it was more realistic to confine his reliance on the evidence of flight, relating to consciousness of guilt, in respect of the first and third elements, to which I have just referred. Put broadly, Mr Tinney would seek to submit that the evidence of the flight of the three accused demonstrated that each of them were conscious that they had been involved in the attack on Shaw, in which he had been brutally assaulted, and that they had done so without any lawful justification.
In the course of submissions before me, Mr Tinney accepted that he could only rely upon the departure of the three accused men from the area, which was close to the assault on Shaw, and their departure from the overall scene, if that departure commenced after Shaw had been assaulted. In my view, that concession is correct. The departure of each of the three accused, from the scene, could only be relevant conduct, if they had commenced to leave, after they knew that Shaw had been the victim of the brutal assault, which was described by a number of witnesses as occurring alongside the Cranbourne Transit bus. That fact is very much in issue. As I understand it, the defence case is that, at the least, there is a reasonable hypothesis, consistent with innocence, that the three accused, or some of them, were involved in disarming Shaw, but that they departed from the scene shortly after they had done so. If the jury is not satisfied beyond reasonable doubt that the accused commenced to depart the scene after the fatal assault on Shaw, then their conduct, in leaving the scene, could not be conduct, which was relevant in relation to the offence with which they are charged.
Ordinarily, where the issue of flight arises in a case, it is not in issue that the flight has taken place after the actus reus constituting the offence. Thus, in those cases, the fact of flight is not relied on to prove that the offence had already occurred; rather, it is relied on to prove the accused person’s criminal involvement in that offence.
Here, as I stated, there is a live issue whether the departure of the three accused, from near the bus, occurred before or after the assault on Shaw. Their departure could only relate to a material issue in the case – that is it could only be relevantly connected to the events with which the accused are charged[1] – if, in all the circumstances, the jury were satisfied that the particular offence (the fatal assault on Shaw) had occurred. On the evidence in this case, there is nothing about the flight, of itself, which could prove that the flight took place after the offence had occurred. In that sense, it could be described as being “intractably neutral” of the issue whether the accused departed before or after Shaw had been assaulted. The accused men had not been intending to run towards the bus to catch it; nor had they intended to continue to run or walk in a northerly direction beyond it. The fact that they left the side of the bus to return to the Chrysler, could not, of itself, prove that, at the time at which they did so, the particular assault on Shaw had already taken place.
[1]R v Dung Chi Dang [2004] VSCA 38; R v Konstandopoulos [1998] 4 VR 381, 390 (Callaway JA).
As I stated, Mr Tinney has accepted that, to be able to rely on the issue of “flight” as consciousness of guilt, the prosecution must prove, beyond reasonable doubt, that the departure of the three accused, from near the side of the Cranbourne Transit bus, took place after Mr Shaw had been fatally assaulted. I have undertaken the above analysis to demonstrate the importance of that concession, and to underline directions, which I will be giving to the jury in respect of it, if I were otherwise persuaded that the “flight” of the three accused, from the scene, was capable of constituting evidence of a consciousness by the accused that they had been involved, without lawful justification, in the fatal assault of the deceased man.
Those observations bring me to the particular matter, which was in issue in the submissions before me. Mr Tinney submitted that the evidence of the departure of the three accused men from near the bus, and their departure from the overall scene in the Chrysler vehicle, is evidence capable of demonstrating a consciousness by the accused that they had been involved in the fatal assault on Shaw, and that they were not acting in self-defence when doing so. In particular, Mr Tinney submitted that a jury is entitled to conclude, beyond reasonable doubt, that if the accused had not been involved in the assault, which had taken place on Shaw, they would not have departed the scene, but, rather, they would have remained at it to render him assistance, and to summons the ambulance and the police. Mr Tinney submitted that it is a matter for the jury to determine whether they could exclude, as reasonable explanations for the departure of the accused men from the scene, other hypotheses, such as that they left because they panicked, that they were concerned for their own safety, or that they were concerned that they might become falsely implicated in the brutal assault which had just taken place on Mr Shaw.
In response, Mr A Lewis, who appears for Mr Robb, submitted that the evidence of “flight” is not capable of constituting evidence of a consciousness of guilt by his client of the involvement in the fatal assault on Shaw. Mr Lewis submitted that the Crown could not rely on the departure by Mr Robb from the locality, in McEwan’s vehicle, as evidence as consciousness of guilt, because Mr Robb was only a passenger in the vehicle. In particular, he submitted that a jury could not reasonably conclude that the only reasonable inference, to be drawn from Mr Robb’s departure from the area, was that he had been involved in the assault on Shaw, in which Shaw had sustained the fatal injuries from which he later died. He then submitted that the departure by Mr Robb from the vicinity of the bus, was so closely connected, in time, with the events, that it is “intractably neutral”. He submitted that a jury could not rationally exclude the hypothesis that a innocent person would have done the same thing in the circumstances.
Mr Lewis also pointed to the evidence of the video, which showed Mr Robb as being some distance from the bus, when he was last observed on the video. He further pointed to the fact that there was no evidence that Mr Robb had, at any stage, acquired a weapon, whereas a number of the witnesses who described the fatal assault on Shaw stated that each of the assailants were holding weapons. I interpolate that those two matters, while relevant to the issue as to whether Mr Robb did participate in the fatal attack on Shaw, do not, I consider, advance the proposition by Mr Lewis that a jury could not reasonably exclude an innocent explanation for the departure by the accused men from the scene.
Mr J Toal, who appears for the accused man Normunds Dambitis, supported the submissions of Mr Lewis. He submitted that, notwithstanding the directions which I have already foreshadowed, a jury might make an impermissible leap from the evidence as to the departure of the accused from the scene, to reason that that departure of itself was evidence that the assault on Shaw had already taken place. I interpolate that I do not accept that argument. In my view, a clear direction that, in order to rely on the evidence of flight, the jury must be satisfied beyond reasonable doubt that that flight took place after the fatal assault of Shaw, would be sufficient to identify clearly to the jury that it could not reason in the circular manner suggested by Mr Toal.
Mr Toal also submitted that there was no direct evidence of the identification of Dambitis as one of the persons involved in the assault on Shaw. Again, whether or not that proposition holds good, I do not understand how that proposition advances the argument made on behalf of defence counsel that the jury could not reasonably conclude that the only rational explanation for the flight of the three accused men, after the assault on Shaw, was that they had been unjustifiably involved in that assault.
The principles, relating to the use by juries of post-offence lies or other conduct, as evidence of “consciousness of guilt”, have been the subject of a number of appellate decisions in recent years, and it is not necessary, for the purposes of this ruling, for me to set them out at any length. Essentially, the prosecution seeks to invite the jury to draw an inference from the evidence of the departure of the three accused men from the side of the bus, and from the scene, shortly after the assault of Shaw. The prosecution argument is that the only reasonable inference, which could be drawn from that conduct of the accused, is that they each knew that they had been involved in the fatal attack on Shaw, without acting in self-defence, and that they knew that, if they remained at the scene, they would be correctly implicated in that assault.
The question whether a jury should draw a particular inference is, of course, a question of fact for the jury. My role, as the trial judge, is not to determine whether the jury should draw such an inference. Rather, at this stage, my task is to determine whether the jury, acting rationally, could (not should) conclude that the inference which is contended for on behalf of the prosecution, is the only reasonable inference to be drawn from the flight by the three accused from the scene.[2] That is, I must determine whether the jury could reasonably exclude any other explanation, for the flight of the accused, which is consistent with their innocence.
[2]R v Cengiz [1998] 3 VR 720, 721 (Ormiston JA), 735, 738 (Harper AJA).
The reasoning, relied upon by the prosecution in this case, involves the prosecution making good three particular propositions, namely:
(a)That each accused left the side of the Cranbourne Transit bus, and departed from the scene, shortly after the assault had taken place on Shaw.
(b)That that conduct was material to the offence with which the accused have each been charged.
(c)That the only reasonable explanation for that conduct by each accused is that they each knew that they had been involved in the fatal assault on Shaw, without lawful justification, and that if they remained at the scene, they would be correctly implicated in that offence.
In my view, there is sufficient evidence for the jury to be satisfied beyond reasonable doubt of the first such proposition. That evidence includes the footage from camera number 4 (the front of the bus) (exhibit R 6), and the evidence of the witnesses Kevin Hillyer[3], Kahlee Sawyer[4] and Karem Lopez[5]. It is a matter for the jury whether they are satisfied, beyond reasonable doubt from that evidence, that the three accused departed from the area of close proximity to the side of the Cranbourne Transit bus after Shaw had been assaulted. However, in my view, that evidence would be sufficient to entitle a jury to draw that conclusion.
[3]T 679 to 683.
[4]T 975-977.
[5]T 1142 to 1146.
As I have already indicated, provided that the jury were satisfied, beyond reasonable doubt, that the three accused left the side of the Cranbourne Transit bus, after Shaw had been fatally assaulted, the jury would be entitled to conclude that that conduct is material to the offence, with which the accused are charged.
The question, then, is whether a jury could reasonably conclude that the only reasonable explanation for the “flight” of the three accused was because they had been involved in the fatal assault of Shaw, and, in doing so, were not acting in self-defence.
The principle focus of the submissions made by both Mr Lewis and Mr Toal were that their clients were each passengers in McEwan’s vehicle. They each submitted that accordingly the jury could not exclude, as a reasonable possible explanation for the flight by Robb and Dambitis from the scene, that they left it in McEwan’s vehicle because they had no other means of transport then available to them.
That factor, relied on by Mr Lewis and Mr Toal is quite persuasive. However, notwithstanding it, I consider that it is a matter for the jury whether they are able to exclude that hypothesis as a reasonable possible explanation for the departure by Robb and Dambitis from the scene. The view taken by the jury in that respect would depend on its assessment of all the evidence, and of the context in which the departure by Robb and Dambitis from the scene took place. The witnesses who were close to where the assault on Shaw took place each realised, quite readily, that Shaw had sustained serious injuries. A number of them, without hesitation, gave assistance to Shaw. Each of the accused were of reasonably strong physique, and certainly they were sufficiently confident in their physical prowess to have chased Shaw while he was holding a machete. In light of those, and other circumstances, I do not consider that the jury could not reasonably exclude the explanation, that Robb and Dambitis needed to leave the scene because they were passengers in McEwan’s vehicle, as a reasonable possible explanation for their departure from the locality in which the assault on Shaw had taken place.
There are also, I accept, a number of other competing hypotheses which, no doubt, the accused would each put to the jury, and which might lead the jury to conclude that the hypothesis, contended for by the Crown, is not the only reasonable explanation for the conduct of the accused in leaving the area of the bus and then departing from the scene. In directing the jury in relation to this aspect of the case, I would, of course, refer to those other hypotheses, and direct the jury that they could only draw the inference, relied on by the prosecution, if the jury were satisfied, beyond reasonable doubt, that the only reasonable explanation for the flight of the three accused was because they had been unjustifiably involved in the fatal assault on Shaw. However, I do not consider that any of the “innocent explanations” of the flight, suggested by counsel for the accused, is so inherently likely that a jury could not properly regard the flight by the accused from the scene as evidence of their guilt.[6]
[6]DPP v Ciantar [2006] VSCA 263, [72]; 16 VR 26, 48.
For those reasons, I conclude that a jury is capable of reasonably concluding that the actions of the three accused, in departing from the close proximity to the side of the Cranbourne Transit bus, and in departing from the scene, is capable of revealing a consciousness by each of them that they had been involved, without justification, in the fatal assault on Shaw, provided that the jury is first satisfied beyond reasonable doubt that the three men commenced their departure after the fatal assault on Shaw.
Accordingly, the prosecution will be permitted to rely on that evidence as revealing “a consciousness of guilt”, and I shall give the jury an appropriate direction in accordance with the principle stated by the High Court in R v Edwards[7].
[7](1993) 178 CLR 193, 209 to 211.
In reaching that conclusion, there is one aspect of the argument made by Mr Tinney, to which I should make particular reference. In the course of his submissions, Mr Tinney contended that the jury would be entitled to reason that an innocent person, not involved in the attack on Shaw, would not have had any occasion to flee. Rather, he contended, the jury would reason that such a person would have remained at the scene, and, inter alia, contacted the police, secured the machete and provided it to the police, and then told the police that he had nothing to do with the assault on Shaw, that he had just chased him and disarmed him, and then other people had intervened and inflicted a brutal beating to him.
In the course of submissions I expressed concerns to Mr Tinney about the manner in which he phrased that submission. In particular, I indicated to Mr Tinney that he should not make any submissions to the jury which would invite the jury to infer that the accused had a consciousness of guilt, because they did not remain at the scene, and cooperate with the police. Apart from particularly exceptional cases[8], of which this case is not one, a jury is not entitled to draw a guilty inference against an accused person, because that accused person exercised his or her right to silence. On the facts of this case, it would, in my view, be an infraction of that principle to suggest, in any way, that any of the accused had exhibited a consciousness of guilt for the involvement in the fatal attack on Shaw, because they did not remain at the scene and explain to the police how they had become involved in the pursuit of Shaw. That part of the argument made by Mr Tinney is not a necessary part of the contention by the prosecution that the evidence of flight constitutes evidence of a consciousness of guilt by the accused. Accordingly I have directed Mr Tinney that he should not make any reference to that part of his argument in final address to the jury.
[8]Compare Weissensteiner v R (1993) 178 CLR 217.
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