Director of Public Prosecutions v Mehdi & Ors (Ruling 1)
[2024] VSC 830
•17 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0154
S ECR 2023 0155
S ECR 2023 0156
S ECR 2023 0157
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ZEESHAN MEHDI, MOWEIT QIAN, DARA CHAU and TRUNG NGUYEN | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 and 15 October 2024 |
DATE OF RULING: | 17 October 2024 |
CASE MAY BE CITED AS: | DPP v Mehdi & Ors (Ruling 1) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 830 |
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CRIMINAL LAW — Evidence — Tendency — Whether evidence of prior convictions of deceased admissible — Whether excluded pursuant to s 97 of the Evidence Act — Evidence admitted — Evidence Act 2008 (Vic) s 97; R v PP [2002] VSC 523; DPP v Campbell & Ors (Ruling No 1) [2013] VSC 665; Re Knowles [1984] VR 751; R v Lockyer (1996) 89 A Crim R 457.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton SC with Ms J Ball | Office of Public Prosecutions |
| For Zeeshan Mehdi | Mr M McGrath with Mr W Blake | Slades & Parsons Criminal Lawyers |
| For Moweit Qian | Mr G Casement with Ms L Andrews | Chester Metcalfe & Co |
| For Dara Chau | Mr J Desmond | Giorgianni & Liang Lawyers |
| For Trung Nguyen | Mr P Smallwood with Mr J Cleveland | Hofman Carroll Criminal Law |
HER HONOUR:
The four accused, Zeeshan Mehdi (‘Mehdi’), Moweit Qian (‘Qian’), Dara Chau (‘Chau’) and Truong Nguyen (‘Nguyen’), are charged with the murder of Tommy Loulanting (‘Loulanting’) at Noble Park on 11 July 2022. Each accused is also charged with affray.
Overview of prosecution case
The prosecution case is that the accused Mehdi owed a debt to Christina Subu (‘Subu’). Subu sought the assistance of Loulanting to collect the money from Mehdi. On 8 July 2022, the deceased confronted and seriously assaulted Mehdi before giving him a timeline within which to repay the money said to be owed to Subu. Pursuant to an agreement between Subu and Loulanting, Loulanting would receive half of the recovered money.
Rather than repay the money, Mehdi decided to take revenge on Loulanting by either killing him or causing him really serious injury. Mehdi arranged for the three co‑accused to assist him in this venture. During the early hours of the morning of 11 July 2022, Mehdi lured Loulanting to Unit 2/88 Corrigan Road, Noble Park (‘Unit 2’) under the guise of wanting to pay the debt. At around 6am, Loulanting attended at Unit 2 together with his two teenage sons, ML and DL. Loulanting parked across the driveway and his sons remained in the vehicle. Subu and Subu’s partner, Reza Misawi (‘Misawi’), also attended in a separate vehicle. Loulanting, Subu and Misawi approached Unit 2. Mehdi opened the front door and Loulanting entered the unit. He was immediately ambushed by the four accused. Loulanting was shot twice, once to the left knee and once to the face. He was also stabbed three times. He died almost immediately. The cause of death was a gunshot wound to the face/neck.
On the prosecution case, it is unknown which of the four accused fired the gun or inflicted the stab wounds. The prosecution case relies on complicity: the four accused agreed upon a plan to kill or really seriously injure Loulanting. Alternatively, they each assisted, directed or encouraged the principal offender to kill or cause really serious injury to Loulanting.
Immediately after Loulanting was killed, Subu and Misawi ran back towards their vehicle, chased by the four accused. Chau and Nguyen struck Misawi with weapons believed to be a machete and a hatchet. Qian reloaded the firearm and pointed it at Subu, but did not pull the trigger due to the traffic on Corrigan Road at the time. The vehicle containing Loulanting’s two sons, ML and DL, was also attacked before being driven away from the scene by ML.
Overview of defence cases
All four accused admit presence at the scene. All deny shooting, stabbing or in any way injuring Loulanting. No accused raised self‑defence in his record of interview or in any other post‑offence out‑of‑court statement. No accused has given any indication that any further evidence will be led at trial in support of self‑defence. Nonetheless, at least Mehdi and Qian will seek to argue that self‑defence should be left to the jury on the basis of the prosecution evidence. If no further evidence is called, the prosecution will submit that no accused has discharged their evidentiary burden and self‑defence should not be left to the jury. In particular, the prosecution will submit that there is no evidence any of the accused were placed in fear of death or really serious injury.
The tendency notices
Identical notices were filed on behalf of the accused Mehdi and Qian. Both notices allege a tendency on the part of Loulanting to act in a particular way or have a particular state of mind. In summary, the relevant tendency is a tendency on the part of Loulanting to initiate violence upon people with whom he had a grievance or dispute, and to arm himself and utilise weapons, including makeshift weapons, when inflicting violence on those persons. The tendency was described as a tendency to have both a particular state of mind and to act in a particular way, consistent with that state of mind. Arguably, it is really better characterised as a tendency to act in a particular way, however nothing turns on this for the purposes of this ruling.
The notices contained nine separate items of evidence. Seven of those items (Items 1–7) are based on the prior convictions of Loulanting. Loulanting has prior convictions dating from 2004 to 2019. They include charges of intentionally causing serious injury, affray, unlawful assault, criminal damage, assault in company and assault police. Item 7 concerns an assault by Loulanting on his wife, Tracey Loulanting. The proposed tendency evidence set out in the notices sets out the charges and a summary of the factual basis for the charges. If admitted, it is proposed the evidence can be led through the informant or by way of agreed facts.
Item 8 relies on a general statement by Tracey Loulanting, who states that Loulanting was ‘violent to [her] including occasions where he hurt her’. Item 9 concerns the assault by Loulanting on Mehdi on 8 July 2022.
The prosecution do not dispute the adequacy and accuracy of the notices. The prosecution also accept that Item 9 is admissible and capable of being used by the jury as tendency evidence. It is therefore necessary to rule on Items 1–8 only.
Submissions on behalf of the accused Qian
It is submitted that the tendency evidence supports one or more of the following inferences:
(a) Loulanting initiated a physical confrontation when he arrived at Unit 2 shortly before the firearm was discharged.
(b) Prior to the firearm being discharged, Loulanting was behaving violently and aggressively to those inside Unit 2.
(c) Loulanting was armed with a weapon or objects capable of being used as weapons at the time he attended Unit 2.
Mr Casement made clear that his argument did not depend upon whether self‑defence was open on the evidence and left to the jury. He submitted that the jury will need to consider what happened at the doorway of Unit 2 and what occurred when Loulanting entered the unit. The tendency evidence raises the reasonable possibility that Loulanting behaved aggressively upon entry, and those inside the unit were reacting to that aggression. The prosecution are required to prove that the accused intended to kill or cause really serious injury to Loulanting. If it is reasonably possible that the accused were responding to violence, even in circumstances falling short of self‑defence, then this may raise a doubt in the minds of the jury as to whether any of the accused formed murderous intent.
Mr Casement referred to a number of pieces of evidence relevant to this question, including:
(a) Subu engaged Loulanting to recover the debt and, in return, Loulanting would receive half of the money recovered.
(b) Loulanting was strong and powerfully built. According to Subu, he had his sons with him on this night as he was teaching them how to collect money and ‘showing them the street way.’ She described him as a violent person with a reputation for violence.
(c) On 8 July, Subu and Loulanting sought out Mehdi and collected him from his address. Mehdi was tortured and seriously assaulted by Loulanting and another person before being given a timeline in which to repay the money. Mehdi told his wife that he feared being beaten again.
(d) Following the assault, Loulanting continued to pursue the debt. According to Subu, this was not being done at her request. Loulanting wanted to ‘go after the money’ because they were making him look like a fool.
(e) On 10 July at around 10:30pm, Mehdi was at the Highways Hotel in Springvale playing the ‘pokie’ machines. A short time later, he received a message from Subu stating, ‘U make up shit and the payment is pending but u go pokies I got eyes everywhere if it’s not in my account like u said 2 am then it will get worse [than] last time I make it double’.
(f) At 2am, CCTV footage shows Loulanting attending at Unit 2, which is an address associated with Mehdi. Loulanting is armed with a baseball bat and looking for ‘Zac’ (Mehdi). Matilda McLaren (‘McLaren’), an associate of Mehdi’s, messaged Mehdi to warn him that seven or eight people had turned up at the unit, including a ‘big fob dude’ who was asking if Mehdi lived there.
(g) Loulanting arrived at Unit 2 prior to the shooting. He parked diagonally across the driveway and left his two sons in the vehicle. Loulanting told ML that he had parked in that way to force people who were leaving the unit to walk past the driver’s side of the vehicle. Loulanting told ML that if he saw anything that might harm him or his brother, he was to take a ‘shot’ with the baseball bat, and if ML accidentally killed someone he, Loulanting, would ‘clean it up’.
(h) At the time he approached the unit door, Loulanting had in his hand a large torch. Subu described it as approximately 50 cm long. He had a large ball bearing, the size of a billiard ball, in his pocket. He was wearing a sling style bag containing a box cutter.
(i) Subu knocked on the unit door but Loulanting pushed past her and entered first.
Mr Casement submitted that this evidence supports an inference that Loulanting was behaving aggressively on this night. Mehdi had been recently tortured and assaulted by Loulanting over the same debt that Loulanting was still pursuing. Subu’s version of events will be the subject of challenge, and it is not conceded that this was a summary shooting that occurred as soon as Loulanting entered the unit. The matters set out in the notice support or strengthen the defence argument that it is reasonably possible that Loulanting was the aggressor on this night. He had a tendency to behave violently towards those with whom he had a grievance, and initiate violence. Mr Casement submitted that, in all the circumstances, the evidence has significant probative value. It goes not only to the concept of self‑defence, but also raises the reasonable possibility that Loulanting was the aggressor on this morning and his killing was a quick reaction to a threatening situation. This may raise a reasonable doubt as to whether, in those circumstances, murderous intent was formed.
Submissions on behalf of the accused Mehdi
Mr McGrath, on behalf of Mehdi, adopted the submissions made on behalf of Qian. Additionally, Mr McGrath made the following points:
(a) The original debt was owed by Mehdi’s wife, Diana Mossawi (‘Mossawi’). On 3 July, Mossawi accused Subu of sending someone around to collect the money. It was then agreed that Mehdi would take responsibility for the debt.
(b) On 11 July at around 2am, Loulanting was clearly looking for Mehdi and intending violence. He had with him a baseball bat and attended Unit 2 in company. Mehdi told McLaren not to let anyone in.
(c) At 3:10am, Subu messaged Mehdi about the debt. She told him there were three carloads looking for him and, as she told him on 3 July, it is out of her hands. In other words, she is not responsible for any violence that may be inflicted on Mehdi due to the unpaid debt.
(d) At 5:28am, Mehdi called Subu and told her to come to Unit 2 to collect the money she was owed. Mehdi did not invite Loulanting or tell Subu to bring Loulanting with her.
(e) The debt was owed by Mehdi to Subu. There was no reason for Loulanting to attend at 6am on 11 July. An available inference is Loulanting was not letting go of the unpaid debt and had taken charge. The manner in which he parked across the driveway, and his instructions to his sons, show he was anticipating violence would be used.
Mr McGrath submitted that for the jury to properly understand the type of person Loulanting was, they need to know the details of his past behaviour. The tendency evidence has significant probative value, as it shows the extent of Loulanting’s prior violence and his willingness to settle grievances or perceived grievances with violence.
The tendency evidence is not only relevant to the question of self‑defence. It also goes to the question of what happened on this morning after Subu knocked on the door of Unit 2, and whether Loulanting was killed in circumstances that may amount to manslaughter but fall short of murder.
Submissions on behalf of the prosecution
Mr Hutton SC argued there is an ‘evidentiary gap’ as to what happens at the front door of Unit 2. Subu’s version, which will be ‘heavily challenged’, is the only evidence there is. If a jury reject her account, that leaves an absence of evidence but does not create positive evidence that any of the accused acted in self‑defence. None of the four accused admit firing the fatal shot.
At the time Mehdi received the message from Subu at around 10:30pm on 10 July, he is arguably already in possession of the gun. Mehdi can be seen on CCTV footage entering the Highways Hotel with a red‑coloured sports bag, and a witness later sees a shotgun inside that bag. This supports an inference that there was already a plan afoot to shoot Loulanting before the events of 6am on 11 July.
There is nothing to contradict the evidence of Subu that when the unit door is opened, she sees Mehdi in the hallway. She then sees two masked men appear, and Loulanting is shot twice. Mr Hutton argued the invitation to Subu was clearly a ruse to lure Loulanting to the unit. There is no evidence that Loulanting behaved violently, and no evidence that any of the accused were reacting to anything Loulanting did. The evidence of Subu is to the contrary.
The proposed tendency evidence is quite dated, and some of it goes back 17 years. The defence have the evidence as to what happened on 8 July, and the balance of the tendency evidence lacks significant probative value. Moreover, tendency evidence is only capable of supporting other evidence and here, there is no other evidence as to what occurred at the unit door beyond Subu’s evidence. The tendency evidence would invite speculation, but it is not capable of raising a reasonable possibility that Loulanting was behaving aggressively on this morning.
Section 97 — Legislation and legal principles
Section 97 of the Evidence Act 2008 (Vic) (‘Act’) is titled ‘The tendency rule’. Section 97(1) provides:
Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value.
‘Probative value’ is defined in the Act’s dictionary, although ‘significant probative value’ is not. The phrase was considered by the High Court in Hughes v The Queen.[1] The majority held:
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.[2]
[1][2017] 263 CLR 388.
[2]Ibid [16] (Keifel CJ, Bell, Keane and Edelman JJ) (citations omitted).
The tendency rule is exclusionary in its operation. Evidence that a person had a tendency, whether because of their character or otherwise, to act in a particular way or have a particular state of mind is inadmissible unless the court thinks the evidence will have significant probative value.
Tendency evidence is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, a person acted in a particular way or had a particular state of mind. Whether the evidence is actually being adduced for a tendency purpose depends ‘on whether or not proof of the tendency of a person to act in a particular way is a necessary link in the reasoning making the evidence relevant to a fact in issue.’[3]
[3]Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51, 67 [65] (Sackville J).
In R v PP,[4] which was decided prior to the introduction of the Act, Nettle J considered the admissibility of the deceased’s prior convictions. PP was charged with murder. The deceased’s criminal history, which included prior convictions for violence, was said to be relevant both to a defence of self‑defence if one was advanced, and also to the question of provocation.[5] His Honour stated:
Ordinarily, evidence which goes to no more than disposition of an accused is inadmissible, but that is so in the case [of] the accused because of a rule of fairness rather than reasons of relevance. As a matter of principle it is plain enough that, depending upon the matters in issue, evidence of disposition of a victim can be relevant and is admissible.[6]
[4][2002] VSC 523 (‘R v PP’).
[5]Given the date of the charge, a ‘defence’ of provocation reducing murder to manslaughter was available.
[6]R v PP, [6].
His Honour referred to the decision of Re Knowles,[7] where the court observed that evidence of prior incidents, deposed to by third parties but not known to the accused, may be consistent with the other evidence given by the accused of his own state of mind and what induced it. The court in Re Knowles had said, inter alia, that:
As Professor Wigmore has said, where ‘a controversy arises whether the deceased was the aggressor, one’s persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased’s action ... [the] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The enquiry is one of objective occurrence, not of subjective belief’ … It is to be remembered that the Crown is precluded from calling evidence of the disposition or propensity of an accused person to act in the way alleged at his trial by a rule of public policy despite the fact that it would otherwise be relevant probative evidence. No such principle excluded evidence of the disposition or propensity of a person other than the accused.[8]
[7][1984] VR 751.
[8]Ibid 768 (Crockett, McGarvie and Gobbo JJ), citing R v Lowery and King (No. 3) [1972] VR 939, 944–5 (Winneke CJ, Little and Barber JJ); Lowery v The Queen (1973) 47 ALJR 309.
His Honour noted that self‑defence or provocation were not necessarily open and might not be allowed to go to the jury. Nonetheless, he ruled that the evidence was admissible, noting that ‘when there is doubt about the admissibility of evidence of this kind, the doubt should be resolved in favour of the accused’.[9]
[9]R v PP, [14], citing R v Patel (1951) 35 Crim App R 62, 66.
In DPP v Campbell & Ors (Ruling No 1) (‘Campbell’),[10] two accused, C and R, were jointly charged with the murder of W. A third accused, B, was charged on the same indictment with doing acts for the purpose of impeding the apprehension of C and R. B sought to rely on the defence of duress. In support of that defence, B filed a tendency notice, seeking to rely on a number of prior convictions of both co‑accused as evidence of a tendency by each of them to act in an intimidating, violent or threatening manner. Kaye J noted that, based on the evidence contained in the depositions, there were a number of difficulties with the defence of duress. However, it was not ‘entirely fanciful’.[11] The defence was adverted to, albeit in the most general terms, by B in his record of interview. Counsel for B indicated that it would be asserted that B was threatened by either C or R with being shot if he did not assist in the disposal of the deceased’s body. His Honour made clear that any ruling was subject to duress being sufficiently raised at trial, and his ruling was conditional on that being done. His Honour ruled that the tendency evidence sought to be led was admissible.[12]
[10][2013] VSC 665 (‘Campbell’).
[11]Ibid 7 [31].
[12]It was common ground that if the tendency evidence was admitted, the trial of C and R should be heard separately to the trial of B.
In the course of his ruling, Kaye J set out a number of relevant legal principles where tendency evidence is relied on by the defence.[13] His Honour stated:
The approach to the question of admissibility of tendency evidence, sought to be adduced on behalf of the accused, must, of necessity, be different to the approach taken by the court to tendency evidence which is sought to be adduced on behalf of the prosecution. In a criminal trial, the accused does not bear any legal onus of proof. Rather, on particular issues, the accused may bear an evidentiary onus of adducing evidence, from which an inference arises that a reasonable possibility, consistent with innocence, exists. Thus, in determining whether tendency evidence, sought to be adduced by an accused, is admissible under s 97(1), it must be borne in mind that that evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.[14]
[13]Campbell, [34]–[46].
[14]Ibid [41].
In the case of R v Lockyer,[15] the accused was charged with the murder of his young child. There were only two possible suspects — the accused or his de facto partner (the child’s mother). The defence case was that there was a reasonable possibility that the child had been murdered by her mother. The accused sought to adduce tendency evidence. The proposed tendency was that both the deceased child and one of her brothers had previously received injuries in circumstances from which an inference could be drawn that there was a reasonable possibility that the mother was responsible for inflicting those injuries. No eye‑witnesses could attest to her doing so, but it was asserted witnesses could attest to the nature of the injuries and the unlikelihood that they were caused accidentally. In permitting the evidence to be led, Hunt CJ at CL stated:
One of the primary meaning of the adjective “significant” is “important” or “of consequence”. In my opinion, that is the sense in which it is used in s 97. To some extent, it seems to me, the significance of the probative value of the tendency evidence (whether led by the Crown or by the accused) must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact. In the present case, the accused seeks to adduce the evidence as part of his case that there is a reasonable possibility that the child was bashed by [the mother]. The accused bears no legal onus of proof, but he does bear an evidentiary onus of pointing to or producing evidence from which the inference arises that such a reasonable possibility exists. Where such an inference does arise from that evidence, the Crown bears the legal onus to eliminate that reasonable possibility as part of its obligation to prove that it was beyond reasonable doubt it was the accused who killed the child.[16]
[15](1996) 89 A Crim R 457.
[16]Ibid 459–60.
His Honour went on to state, ‘[t]he difference between establishing that something was the fact and establishing that there is a reasonable possibility that it was the fact is an extensive one’.[17]
[17]Ibid 460.
Drawing on these decisions, and in particular the helpful analysis of Kaye J in Campbell, the following principles may be stated:
(a) Proof of a tendency to act in a particular way is a species of circumstantial evidence. Tendency evidence alone does not prove any particular fact in issue. Rather, it is a foundation for an inference that a particular person either had a particular state of mind, or acted in a particular way, in respect of the circumstances which are under consideration in the particular case.[18]
[18]Campbell, 9 [35].
(b) It must be steadily borne in mind that the accused bears no onus of proof. Rather, on a particular issue such as self‑defence, the accused may bear an evidentiary onus of adducing evidence, from which an inference arises that a reasonable possibility, consistent with innocence, exists.
(c) When considering whether tendency evidence sought to be adduced by an accused is admissible under s 97(1), the evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.
(d) The expression ‘significant probative value’ must be understood in the context of an accused person bearing no onus of proof. Evidence that raises a reasonable doubt will fairly readily be held to have significant probative value.
Analysis and conclusion
In my view, it is far from certain that, on the prosecution evidence contained in the depositions, self‑defence is an available defence. My present view is that self‑defence would not be left to the jury, but the evidence may alter in the course of the trial, and I have not heard the arguments on the question. I put to one side the question of self‑defence when considering whether the tendency evidence has ‘significant probative value’ within the meaning of s 97(1).
The proposed tendency evidence is capable of establishing that Loulanting had a significant history of initiating violence, responding violently to a perceived dispute or grievance, and occasionally using weapons. In 2004, he, together with his brother, entered a victim’s bedroom and hit him repeatedly with a baseball bat and a golf club. In 2007, Loulanting was told by a KFC drive‑through employee that he and his three associates would have to wait for their food. Loulanting got out of the vehicle and threw a lighter at an employee before pushing the cash register to the floor. In 2008, Loulanting was at a night club when last drinks were called. He and two associates reached over the bar to pour their own drinks, whereupon the manager approached them and told them to stop. Loulanting, together with his two associates, punched the manager and when he attempted to flee through a fire escape, they pursued him and further assaulted him. In 2009, again at a night club and again in company with two other men, Loulanting violently attacked a victim in the toilet area. In 2011, Loulanting responded violently when asked to leave a birthday party, assaulting a female victim and then a male who went to her aid. In 2015, an incident occurred between a victim and another male at a hotel. The victim and his friends left and attended a nearby 7/11 store. Loulanting, together with others, arrived and confronted the victim, and Loulanting violently assaulted him as well as others who tried to help him. On 7 May 2019, Loulanting argued with his wife in relation to finances and left the house. Some hours later he returned and assaulted his wife, including chasing her and repeatedly punching her. All these incidents resulted in Loulanting being charged and sentenced, including sentences of imprisonment of between 14 days and 30 months.
A critical issue in this trial is what occurred when Subu and Loulanting attended at Unit 2. At around 8pm on 10 July, Mehdi exchanged messages with his wife. He said he was going to ‘do this mission and destroy [Subu]’, adding ‘It’s not going to be worst (sic) than last time’. The messages or calls that led to Loulanting’s attendance were between Mehdi and Subu. According to Subu, Loulanting pushed past her after she had knocked on the door. The cross‑examination of Subu is likely to be directed to establishing that Loulanting was angry on this night and behaving in a confrontational and aggressive manner. He had taken control of the debt, and he had been out all night in pursuit of Mehdi. After not finding Mehdi at the unit at 2am, he returned with Subu at 6am.
There is other evidence that must be considered. Loulanting was a physically big and powerful man. He had parked his vehicle diagonally across the driveway and left his sons with instructions that included responding with violence, depending on the situation. It may be inferred that Loulanting was expecting one or more of the occupants to run from the house after he entered. Loulanting had a financial interest in the debt, and had been playing the role of enforcer. He had violently assaulted Mehdi over the unpaid debt three days earlier. On the morning in question, he had with him a large ball bearing, a large torch and a box cutter.
In combination with other evidence, the tendency evidence may raise in the minds of the jury the reasonable possibility that Loulanting was the initial aggressor, or presented in a threatening manner, when he pushed past Subu and entered the unit on the morning of 11 July. The evidence raises the question of whether the accused were reacting to an unexpected or threatening situation or, as the prosecution allege, ambushing Loulanting in accordance with their plan. This is relevant to whether the prosecution can prove, beyond reasonable doubt, that the accused killed Loulanting with murderous intent, or whether there is a reasonable possibility that they had a lesser state of mind. The question of intention will depend upon the drawing of inferences. On the question of intention, juries are routinely directed that they may only draw an inference consistent with guilt if they are satisfied beyond reasonable doubt that it is the only inference open from the facts they have found. If any evidence creates in their minds reservations about drawing such an inference, then the benefit of any doubt must go to the accused. In my view, the proposed tendency evidence set out at Items 1–7 has significant probative value.
The only evidence that does not meet the threshold of significant probative value is set out in Item 8. That evidence is found in the 2019 statement of Tracey Loulanting. After describing the 7 May 2019 incident, Tracey Loulanting states, ‘[t]his is not the first incident to occur and this is not the worst. I have not reported any other incidents in the past.’ The evidence is vague and has no probative value. It is not admissible.
I am otherwise satisfied that the tendency evidence set out in the Notices at Items 1–7 is admissible.
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