Director of Public Prosecutions v Preston (Ruling No 3)
[2015] VSC 397
•14 May 2015 (Written reasons published 19 May 2015)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVIN JOHN PRESTON |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 11, 12 May 2015 |
DATE OF RULING: | 14 May 2015 (Written reasons published 19 May 2015) |
CASE MAY BE CITED AS: | DPP v Preston (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 397 |
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[REDACTED VERSION]
CRIMINAL LAW – Murder – Evidence – Admissibility – Gunshot residue (GSR) and text message evidence – Assessment of probative value – Assessment of prejudicial effect - Common law discretion to exclude unfair evidence - GSR evidence refused – Text message evidence allowed - Evidence Act 2008 (Vic) s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Ms K Argiropoulos | Office of Public Prosecutions |
| For the Accused | Mr C Dane QC with Ms A Beech | C D Traill Lawyers |
HIS HONOUR:
Introduction
The accused, Gavin Preston, faces one count of murdering Adam Khoury on 11 February 2012. Khoury was killed by gunshot wounds to his head and body. He was found dead in his flat on the corner of Canning Street and Melrose Street, North Melbourne. The Crown case is that Preston shot Khoury at the flat shortly before 1:00am on the morning of 11 February.
Two issues now require resolution before trial. One is the admissibility of evidence of gunshot residue (GSR) that was found on a pair of gloves located in the glove box of the accused’s car at the time of his arrest on 12 February 2012. The other is evidence of a text message sent from the accused’s mobile telephone at 10.40pm on the evening of 10 February 2012. The accused’s phone was, at that time, situated in the Cranbourne region to the south-east of Melbourne whereas the accused himself was arriving in North Melbourne near the deceased’s flat. The Crown alleges that the text message was pre-arranged as an attempt to set up a false alibi for the murder of Khoury.
In each case, the accused argues that the probative value of the evidence is outweighed by the danger of unfair prejudice to him. He submits that, pursuant to s 137 of the Evidence Act 2008 (Vic), I must refuse to admit the evidence.
The accused does not deny that gloves were found in the car or that GSR was detected on them. Further, for the purpose of this application, it was not disputed that the text message was sent nor that the accused had given instructions for it to be sent. But in each case, the accused argues that the admission of the evidence would place him in the position of having to elect between one of two unfair choices. They were that he:
(a) give an explanation for the evidence that undermines its probative value in this trial, yet reveals his commission of another criminal offence or his engagement in other criminal activity; or
(b) give no explanation for the evidence, when an explanation could be given, and accept the risk the jury will draw the adverse inference that the Crown invites.
The accused argues that this type of choice (as he puts it, a ‘Catch 22’) has been recognised as being capable of constituting a species of prejudice to be balanced against the probative value of the evidence in the s 137 balancing exercise: R v Cook;[1] Quinlan v The Queen;[2] Pollard v R.[3] And, he argues, when weighed against the probative value of each of piece of evidence, the prejudice resulting to him from that election constitutes overriding prejudice such that the Court must refuse to admit the evidence.
[1][2004] NSWCCA 52 (12 March 2004).
[2](2006) 164 A Crim R 106.
[3](2011) 31 VR 416.
On 14 May 2015 I ruled that I would refuse to admit the evidence of the GSR on the gloves but allow the evidence concerning the text message. I said I would give written reasons for my rulings: these are my reasons.
Before turning to each piece of evidence in turn, I need to set the matter in its wider context.
Context
On 6 February 2015, I made a ruling[4] ordering the separate trial of various other charges that had originally been joined with the murder count on the indictment (‘severance ruling’). Those other charges relate to an alleged armed robbery of and the causing of serious injury to To-Lam Duong on 30 January 2012, 11 days before the killing of Khoury. In ordering the severance of those counts, I expressly reserved for a later occasion any argument about the extent, if at all, that evidence concerning the Duong armed robbery may be admitted on the trial of the murder count alone. In circumstances I will describe shortly, that issue has now been resolved by agreement between the parties.
[4]DPP v Preston (Ruling No 2) (Unreported, Supreme Court of Victoria, Macaulay J, 6 February 2015).
In the severance ruling, I set out in some detail the supposed connection between the events of the Duong incident and the Khoury murder.[5] I will not repeat that detail. It is enough to say that the Crown will contend that the incident reveals a cogent motive for Preston to kill Khoury. Importantly, in that incident, both Preston and his accomplice, Hailu, are alleged to have carried hand guns (neither of which is said to be the gun used in the Khoury murder) and fired shots. Preston is alleged to have shot and wounded Duong. The charges I have severed from the murder count are those that have arisen from that incident. Preston denies being there and intends to contest the charges. The trial of those charges awaits the outcome of this trial.
[5]Ibid 4-6 [11]–[19].
As also explained in the severance ruling, the Crown will be alleging that Preston had a second motive for killing Khoury operating in tandem with the first. The second motive is based on evidence to be given by Preston’s former de facto wife, Ms Suzanne Preston. According to her evidence, Preston said he had to ‘get’ Khoury before he ‘lagged’. REDACTED,[6] Ms Preston claims that Preston made admissions that he was responsible for shooting Bandidos motorcycle gang member Toby Mitchell some 10 weeks before Khoury was killed. Khoury is said to have known about it. The accused’s reference to ‘lagging’ is to be understood in the context of that incident. The accused has not been charged with any offence arising from the shooting of Toby Mitchell but, as I understand it, remains a suspect for it and the investigation is continuing.
[6]REDACTED.
By agreement between the Crown and the defence, no specific reference will be made to the Toby Mitchell shooting in the trial for the murder of Adam Khoury. As foreshadowed in the summary of prosecution opening (dated 12 May 2015) the evidence will be confined to alleging that Preston said to Suzanne that he was worried that Khoury ‘knew too much and that he might be a “dog”’, without specifying what it was that he knew too much about.
Furthermore, in relation to the Duong incident, the Crown and defence have agreed that the Crown can lead evidence of Preston and Hailu attending at Duong’s premises, demanding money, doing a pat search of Duong, taking a large bag of methylamphetmine found on the floor of the premises, and then leaving. There is to be no mention of the presence of guns, much less their use.
Finally, in February 2012, Preston was on bail to answer charges of possessing a firearm arising from an episode some months earlier. Conditions of his bail included that he should not leave his usual place of residence (in the Cranbourne area) after 9.00pm each evening. As will be seen, that context is relevant when it comes to the accused’s argument about the alleged prejudice that might arise if evidence is given of the text message.
Principles for the application of s 137
Section 137 of the Evidence Act 2008 (Vic) (‘Evidence Act’) provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
It was not in dispute between the parties that s 137 requires a balancing exercise comprising three steps:
(a)an assessment of the probative value of the evidence; and
(b)an assessment of the prejudicial effect of the evidence; and
(c)a weighing up of the two with an evaluation of whether the danger of unfair prejudice outweighs the prejudicial value.
If the answer to (c) is in the affirmative, then the evidence must be excluded. The accused bears the onus of persuading the Court that the danger of unfair prejudice from the evidence outweighs its probative value.[7]
[7]R v DG; DG v R (2010) 28 VR 127, 138 [52]-[54].
Taking each of the elements of the balancing equation in turn, ‘probative value’ is defined in the Evidence Act Dictionary as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. It was confirmed in Dupas v R[8] that in assessing the probative value of the evidence for s 137, the judge is to assume the truthfulness of the evidence (credibility) but is not required to make an assumption that its reliability will be accepted. In Dupas, the Court of Appeal said:
(d)In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.[9]
[8]Dupas v R (2012) 40 VR 182, 198 [63] (‘Dupas’).
[9]Ibid 197 [63(d)].
As to the ‘danger of unfair prejudice’, that phrase is to be construed to mean a ‘real’ risk that the evidence will be misused by the jury in some way and that the risk will remain notwithstanding proper directions given to them.[10] In Dupas, the Court of Appeal expanded upon the notion of the risk of misuse by the jury saying:
It may arise where there is a danger that the jury will adopt “an illegitimate form of reasoning” or “misjudge” the weight to be given to particular evidence. An inability to test the reliability of evidence may carry with it the danger of such misjudgement. Evidence is not unfairly prejudicial because it inculpates the accused.[11]
[10]Ibid 221 [150].
[11]Ibid 227 [175].
Gunshot residue evidence
I approach this issue using the three-step methodology set out above (at [15]). The first step is to assess the probative value of the evidence in connection with a fact in issue. The relevant fact in issue in this case is whether Preston shot Khoury.
It is useful to unpack the sequence of propositions that must necessarily underlie the Crown’s contention that the evidence of GSR found on the gloves in the accused’s car is, first, probative of that fact in issue and, secondly, has a particular probative value. Those (contestable) propositions must be as follows:
(a) Preston drove to Khoury’s flat in his black Holden utility vehicle;
(b) Preston was observed entering Khoury’s premises without wearing gloves;
(c) Preston was observed emerging from Khoury’s apartment on the final occasion wearing dark coloured gloves;
(d) it is likely, therefore, that he put the gloves on whilst he was in the flat;
(e) dark coloured (ie black) gloves were found in the glove box of Preston’s black Holden utility around 24 hours later when he was arrested;
(f) those gloves are (most likely) the same gloves he was observed to be wearing 24 hours earlier;
(g) those gloves bore particles of GSR; and
(h) those particles of GSR (most likely) came to be upon the gloves because Preston put them on while in the flat and then shot Khoury while wearing them;
so that, on those propositions, the GSR on the gloves is rationally capable of affecting the probability that Preston shot Khoury.
Preston argues that the probative value of the GSR evidence is weak because of the degrees of uncertainty at each of propositions (c), (f) and (h) above. The evidence in favour of the Crown case was tested on a voir dire in which the Crown called evidence from the arresting Special Operations Group officers, other police officers attending the scene after the arrest, and the Crown’s forensic expert on GSR, Mr Harald Wrobel.
Assessment of probative value
Proposition (c): that Preston was wearing gloves
Unbeknown to Preston, he was the subject of police surveillance on the night of 10/11 February 2012. He was filmed entering Khoury’s apartment at around 10:40pm on Friday 10 February, coming back outside with Khoury around 10:50pm, and then returning with Khoury into the flat about three minutes later. He was also filmed leaving the premises for the final time at 12:54am.
I have watched the DVD film carefully. It is the Crown’s contention that it is open to the jury to conclude that when Preston went in and out of the flat before 11.00pm his hands were bare, but when he emerged shortly before 1.00am he was wearing dark gloves. The view of Preston’s hands is not crystal clear.
According to principle, I am to accept that the film itself is genuine – in any event, it is not challenged. But, I take it that I can have regard to degrees of reliability of the evidence to be lead in favour of the proposition that Preston was wearing gloves when he emerged from the flat the last time.
It is not for me to make a positive finding about that fact one way or the other. But in my view, the evidence I saw does provide support for the Crown’s argument. A comparison between the views before 11.00pm and the view near 1.00am appears to show a marked difference in the colouring of the accused’s hands between the two time frames that could reasonably be explained by the accused wearing dark gloves on the latter occasion but not on the first. That difference is not so easily explained otherwise.
But I do take into account – as I would if the evidence was given by an eyewitness – that the vantage point is from some distance, the film is taken at night although the lighting is reasonable, and the vision of the hands is relatively fleeting. Nevertheless, I would not describe the probative value of the GSR evidence as being especially weak upon a consideration of those elements alone.
Proposition (f): that the gloves in the glove box were those seen on Preston’s hands
Next is the question of identifying the gloves apparently worn by Preston as being the same gloves found in the car the following day. The accused says there is simply no evidence linking them as those worn by Preston (assuming he was wearing gloves); any such linking involves an exercise of speculation. And if they are not the same gloves, then no amount of GSR on them can bear any relevance to this case. He points out that although there are distinctive yellow badge-markings on the gloves found in the car, the film does not enable the viewer to detect whether those markings are there, if it shows gloves at all. The accused appeared to go close to saying – although, in the end I do not think he did - that the inability to positively prove that the two sets of gloves were the same meant that the whole GSR issue could not be left to the jury on that basis alone (regardless of any prejudice consideration).
The Crown argues that it is a matter for the jury, as with other pieces of evidence, to decide whether or not they are satisfied that the gloves were one and the same. The Crown points to the close time proximity between Preston emerging from the flat apparently wearing gloves, and his arrest and the discovery of a pair of gloves in his possession. The Crown also points to the fact that the gloves were found in the very car that Preston had been driving on the night he attended the flat.
I consider that the identity of the gloves is a matter for the jury to decide. In my view, there is enough circumstantial evidence (time proximity; dark colour; continuity from finding the gloves in the same car) to provide a foundation for a reasonable inference to be drawn that they are the same gloves as distinct from it being an exercise of pure speculation. Having said that, I accept that such inferential reasoning, although reasonably open, would be attended by a degree of uncertainty.
Proposition (h): that the GSR got on the gloves while being worn when a gun was fired
The final issue contributing to the overall weakness of the probative value of the GSR evidence, according to the defence, is the degree of confidence that can be held as to how the GSR came to be on the gloves.
Only five ‘highly characteristic’ particles of GSR were found on one glove and two on the other. The gloves were found underneath a woollen balaclava in the glove box. Although Mr Wrobel accepted it was possible for the GSR to have been transferred from the balaclava to the glove, two things undermined that likelihood. First, there was no GSR detected on the balaclava. Second, the balaclava was made of coarse material whilst the gloves were relatively smooth. Had there been transference from the balaclava, according to Mr Wrobel it would have been expected that some GSR would have remained on the coarse material, whereas it did not appear that any did.
Khoury is alleged to have been shot 3 times. On each occasion, according to Mr Wrobel, it could be expected that the gun used would have emitted hundreds if not thousands of particles of GSR. Mr Wrobel said that if ‘tens’ of GSR particle’s had been found on a gloves, he would say the glove was worn during the firing of a gun rather than been received through transference. But, he said, with the small number of particles he was unable to say which of the two hypotheses was the more likely.[12]
[12]Presumably, although he was not asked to explain his statement further, that is because it is unlikely that ‘tens’ of particles might have been transferred to the gloves, but not so unlikely that less than ten would remain on the gloves after being worn during several discharges.
Other hypotheses were that the GSR might have been released off the arm or clothing of the arresting Special Operations Group officer. On the voir dire, the relevant officer accepted he may have reached over the glove box in order to pull Preston from the car. And, it is possible that the glove box was in an open position when he did so.
But, the only person to have disturbed the contents of the glove box thereafter was Detective Sergeant Butterworth who ‘patted down’ its contents when checking to see whether there was any concealed weapon. It is most likely that he otherwise left the contents as he found them. The evidence shows that, afterwards, the gloves remained covered by the woollen balaclava. I accept the Crown’s argument that, making the reasonable assumption that the gloves were at all relevant times covered by the balaclava, the plausibility of the notion that the GSR on the gloves came from one of the arresting officers is low.
In the end, the competing hypotheses for the GSR being on the gloves either because they were worn in a shooting or through a process of transference in some fashion, both remain open with contestable degrees of probability.
Conclusion on probative value of GSR on the gloves
I have considered the evidence for each proposition standing alone. But, taking all of these features together – the element of uncertainty that the film actually shows Preston wearing gloves, the need to infer that those gloves are the same as those found in the car, and the alternative explanations for the GSR getting onto the gloves – in totality, they weaken the overall persuasive force of the set of propositions relied upon to rationally affect the probability that Preston shot Khoury.
Danger of unfair prejudice
It has been held before[13] that, when it is not the actual evidence that is sought to be admitted that produces the unfair prejudice but some other evidence that the defence may have to tender to explain or qualify the prosecution evidence, the balancing exercise in s 135 (which is similar to s 137) is not engaged. But I take the authoritative (or better) view to be that the ‘danger’ referred to in s 137 need not arise directly from the ‘evidence adduced by the prosecutor’, but is to be understood as a danger that may arise because of that evidence and the broader evidentiary consequences that might reasonably or necessarily flow from it.[14]
[13]R v Richards (2001) 123 A Crim R 14, 22 [39].
[14]R v Cook [2004] NSWCCA 52 (12 March 2004) [37]; Quinlan v The Queen (2006) 164 A Crim R 106, 117-8 [21]; Pollard v R (2011) 31 VR 416, 429-32 [66]-[82].
In any event, as was held in Haddarav R,[15] the passing of the Evidence Act, in particular Part 3.11, did not oust the continuance of an overarching common law discretion to exclude evidence the admission of which would be unfair to the accused.
[15][2014] VSCA 100 (27 May 2014) [50], [70] (‘Haddara’).
The defence argues that if the GSR evidence is admitted the accused is put in the invidious position of either remaining mute about it, and accepting the likely consequence that an adverse inference will be drawn against him, or revealing to the jury that he has fired the gun wearing the gloves on another occasion, in which case other adverse inferences will be drawn.
On the body of evidence known to the court, there are some possible candidates for what that other occasion might have been, namely:
· The armed robbery and shooting of Duong 10 days earlier, or
· The shooting of Toby Mitchell 10 weeks earlier.
Either of those explanations would be patently prejudicial to the accused and give rise to a high danger of misuse by the jury which no direction would be likely to ameliorate.
But, also on the evidence known to the Court, there is yet another candidate for a previous occasion when the gunshot residue could have been deposited onto the gloves. In evidence give before me on a voir dire, Suzanne Preston told of an occasion when she and Preston went out at night to an area she described as ‘cow paddocks’ for him to test his handgun by firing 2 or 3 shots.[16]
[16]3 December 2014, transcript 90-91.
There is no specific evidence that on any of these three occasions Preston was or might have been wearing gloves generally, much less the actual gloves found in the glove box of his car. The Crown suggested that the evidence for the Duong case indicates that it was unlikely that Preston was wearing gloves when he shot Duong, but I think the evidence is simply silent on the point.
There is a distinction between this case and a number of other cases in which this type of prejudicial effect has been considered. That is, it is not known what Preston’s ‘preferred explanation’[17] for the GSR is. Perhaps unsurprisingly, the Court here has not heard from Preston, either on a voir dire or by any explanation given by him in another context, as to what he does or would say about the GSR on the gloves. He only says, through his counsel, that there are some plausible explanations which, if given, would meet the inference the prosecution invites in this case, yet still give rise to the gravest risk of misuse by the jury. For that reason, the defence argues the accused should not be allowed because it puts him to that very jeopardy.
[17]Quinlan v The Queen (2006) 164 A Crim R 106, 117-8 [21].
Because of this uncertainty about the accused’s actual or ‘preferred’ explanation, the Crown argues that there is no prejudice to him at all – only a hypothetical prejudice – and that the preferred explanation, if one could be given, might be completely innocuous.
However, the thing to be weighed against the probative value of the evidence is not the known unfair prejudice but the ‘danger’ of unfair prejudice. What Preston points to is a ‘risk’ that he might have to confess another crime which, in turn, raises a ‘risk’ that the jury would misuse that evidence: ie a ‘risk of a risk’. While such an argument may be too hypothetical to be countenanced in some cases, in the unusual circumstances of this case I think it must be regarded as a real ‘danger’. And, further, I consider the gravity of that danger to be quite high.
In summary, it is plausible that the real explanation for the GSR on the gloves is that Preston used his gun in another recently committed crime. It is far from being fanciful. I could not say it was highly unlikely. That being the case, there is a real risk of there being an unfair impediment to Preston giving the real answer that might exculpate him for the crime with which he is charged in this trial; that is, if he is to do so, he must appraise the jury of evidence of other criminal behaviour which they will, in any event, misuse by way of tendency evidence in this trial.
In my view that circumstance amounts to the danger of unfair prejudice which is produced by the admission of the GSR evidence.
Weighing probative value and danger of unfair prejudice
On my analysis, although the evidence of the GSR found on the gloves is potentially probative of the critical fact in issue, its probative value is weakened to a significant degree by the collective and cumulative effect of the three uncertainties I have identified.
Further, on my analysis, although Preston’s preferred explanation for the gunshot residue is not known, there is a reasonable likelihood that it could be one that would reveal to the jury his commission of some other offence which would be highly prejudicial to him. The resulting prejudicial effect of the admission of the gunshot residue evidence is, in my view, substantial and is one that could not be adequately ameliorated by directions to the jury.
Although I have found this a difficult balancing exercise, it is my judgment that the probative value of the gunshot residue evidence is outweighed by the danger of unfair prejudice to the accused. Having reached that conclusion, the legislation directs that I must refuse to admit the evidence.
Upon the same reasoning that I have given for my ruling under s 137 of the Evidence Act, I would also refuse to admit the evidence under the general common law discretion confirmed in Haddara. That is to say, in the particular circumstances I have described it would be unfair to the accused to permit the evidence of GSR to be received.
Text message
In my view, this argument in respect of the text message falls into a completely different category than the argument in respect of the gunshot residue.
The text message is put forward by the Crown to show that there was premeditated planning in the alleged shooting of Khoury. It is led to support the element of intention and to negate any suggestion of self-defence. There is no reason to doubt that the text message was sent, or that it was sent on the instruction of Preston. As I said earlier, for the purpose of this application, the defence have conducted their argument on the assumption that the evidence is correct.
A jury could reasonably infer that the sending of the text message on Preston’s instructions denotes planning for the carrying out of this very offence. It has real probative value for the purpose the prosecution contends.
The accused claims that he suffers unfair prejudice of the same kind as the prejudice he would suffer in relation to the gunshot residue. That is because he may have to reveal as his preferred explanation that he was on bail for another offence and that that explanation would give rise to unfair prejudice.
However, I reject his argument for the following reasons:
· He does not actually say that was his reason for sending the text but merely points to the fact that he was on bail and that it exists as another plausible explanation.
· In my view it is implausible that Preston would send a text to set up an alibi for being in breach of his curfew when the most likely means by which he would be detected for breach of bail is by being apprehended away from his residence during the curfew hours. Because it is highly unlikely an alibi would be effective for the supposed purpose, it is highly unlikely it was sent for that purpose.
· Being on bail does not necessarily connote a commission of an offence: merely that a person is charged with one. In any event, if the bail explanation needs to be given, there need not be any reference to the nature of the charge for which he was bailed.
· The dimension of any prejudice needs to be seen in the context of other evidence which will be given about Preston in any event (ie that he was on surveillance by the police already; that he was involved in a robbery on Duong; that he thought Khoury was going to ‘lag’ on him about some other event sufficient to constitute a motive for murder) such that any prejudicial effect of the jury knowing that he was on bail, alone, is somewhat diluted
· Any risk of prejudice could be adequately ameliorated by directions to the jury that they are not to regard the fact that the accused was on bail for an unidentified offence as being in any way probative of the offence with which he is charged.
The onus is on the defence to persuade me that the probative value of the text message is outweighed by the danger of unfair prejudice to the accused. I am not so persuaded.
Conclusion
For the reasons given above, I will refuse the admission of evidence of GSR on the gloves found in the glove box of Preston’s car but I will allow the evidence of him having given instructions for the sending of the text message and of it being sent.
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