Director of Public Prosecutions v SA & Ors (Ruling No 2)
[2023] VSC 388
•10 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0258
S ECR 2022 0260
S ECR 2022 0262
S ECR 2022 0264
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SA | Accused |
| PM | |
| QM | |
| SY |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 June 2023 |
DATE OF RULING: | 10 July 2023 |
CASE MAY BE CITED AS: | DPP v SA & Ors (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 388 |
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CRIMINAL LAW – Ruling – Incriminating conduct – Whether conduct reasonably capable of being viewed as evidence of incriminating conduct – Application of Jury Directions Act s 20 in trial by judge alone – Whether evidence should be excluded because of unfair prejudice arising from ‘forensic bind’– Evidence Act 2008 (Vic) s 137 – Wilson (a pseudonym) v The King [2022] VSCA 261.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Mr J Manning | Office of Public Prosecutions |
| For SA | Mr J Desmond with Ms M Brown | KPT Legal Pty Ltd |
| For PM | Ms S Lacy with Ms D Price | Stary Norton Halphen |
| For QM | Ms J Saunders | Ajak Wolan & Associates |
| For SY | Ms A Cannon | Chester Metcalfe & Co |
HER HONOUR:
Introduction
The accused SY, QM, PM and SA are each charged with the murder of Declan Cutler (‘the deceased’) at Reservoir on 13 March 2022.[1]
[1]Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534.
The charge is to be the subject of a judge-alone trial before me, commencing in mid-July 2023. In the case of QM, PM and SA, the prosecution intends to rely on certain conduct, by each of them, as evidence of incriminating conduct.
On 27 June 2023, the prosecution filed an amended notice of incriminating conduct (‘the prosecution’s notice’) pursuant to s 19(1) of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’). The notice sets out a number of items of evidence of conduct which the prosecution proposes to rely on as evidence of incriminating conduct against QM, PM and SA.
Those three accused challenge the admissibility of a number of items of conduct set out in the prosecution’s notice. Each of the items challenged by each accused will be dealt with in turn below.
Principles
Jury Directions Act s 20 provides:
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a)the prosecution has given notice in accordance with section 19; and
(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.
(2)Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
Section 18 of the Jury Directions Act contains the following definitions:
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.
In Doherty v The Queen, Kaye, Niall and Weinberg JJA explained:[2]
Section 20 requires the judge to determine the capacity of ‘the evidence’ of post-offence conduct to be reasonably considered by the jury as incriminating conduct. Section 21 mandates the direction that must be given by the judge to the jury concerning that ‘evidence’. It is clear, from those provisions, that the judge is required to make the relevant determination on the basis that the evidence that is to be adduced, or has been adduced at trial. Section 20 is not concerned, directly, with the admissibility of evidence; rather, it is concerned with the use to which the evidence might be put. Of course, if the evidence could only be relevant as evidence of incriminating conduct, it would not be admitted in the trial, unless it could be reasonably viewed by the jury as evidence of such conduct.
[2][2019] VSCA 70, [37].
Thus, even if certain evidence included in the notice of incriminating conduct is not reasonably capable of being viewed as evidence of incriminating conduct, it may nonetheless be relevant and admissible for another purpose. Evidence is relevant if it ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.[3] As Rush J observed in R v Robb while considering the admissibility of evidence relied upon as evidence of incriminating conduct:[4]
Importantly, ‘a jury may have regard to lies and post offence conduct without being satisfied that there are no other potential explanations for them apart from guilt of the offence which is charged’.[5] Therefore, it cannot be my role to exclude evidence on the basis that there are reasonable explanations for this conduct, other than that it is indicative of the accused’s consciousness of guilt.
[3]Evidence Act 2009 (Vic) s 55.
[4]R v Robb (Ruling No 2) [2015] VSC 481, [18].
[5]Re Ciantar (2006) 16 VR 26, 42 [52].
As s 4A(2) of the Jury Directions Act applies to judge-alone trials,[6] I must — at this stage of the proceeding — apply s 20 reasoning when determining the admissibility of evidence of alleged incriminating conduct.[7]
[6]Criminal Procedure Act 2009 (Vic) s 420ZG.
[7]See, eg, DPP (Vic) v Dyke (2020) 61 VR 207, [16].
In DPP (Vic) v McCartin (Ruling No 1), Kaye J identified that:[8]
[T]he test for the trial judge is not whether the jury should regard the evidence of the conduct by the accused, as supporting the guilty inference contended for by the prosecution. Rather the question, for the judge, is whether the jury, acting rationally, could conclude that the evidence, considered in the context of the other circumstantial evidence in the trial, is capable of supporting that conclusion.
[8][2022] VSC 686, [27].
As this trial will be a trial by judge alone rather than a trial before a jury there are some difficulties in applying s 20 reasoning at this stage. Section 20 requires an assessment to be made ‘on the basis of the evidence as a whole’. However, as I am the trial judge who will ultimately decide the facts at trial, I have deliberately quarantined myself from having regard to any material which may be evidence in the trial, other than material that the parties have required me to have regard to.
Indeed, as I understand it, the full prosecution brief is not presently in the possession of the Court. As a result, in deciding the present challenges to the notices of incriminating conduct, I am restricted to being informed by:
(a) the prosecution opening and defence responses;
(b) the material tendered by the parties during the pre-trial hearings; and
(c) the relevant submissions and observations made by the parties in the course of pre-trial arguments.
In Doherty v The Queen, the Court of Appeal remarked that:[9]
[N]ot uncommonly, evidence of post-offence conduct by an alleged offender is adduced without a determination first being made as to whether it is capable of constituting evidence of incriminating conduct, where it may be otherwise relevant, for example, because it provides a context to what ensued after the commission of the offence. In those cases, the determination by the judge, whether the prosecution might be permitted to rely on such evidence as evidence of incriminating conduct, may be deferred until a stage when the trial is well advanced, and often at the conclusion of evidence. In such a case, an assessment, as to whether the evidence may be properly regarded as incriminating conduct, may not be able to be made until all the evidence has been adduced.
[9][2019] VSCA 70, [38].
This path has been adopted for a number of items of incriminating conduct relating to QM in the prosecution’s notice and one of the items relating to SA.
In a judge-alone trial, such an approach is the preferable course for any evidence of incriminating conduct which is relevant and admissible for another purpose. Indeed, even in jury trials, the decision on whether conduct can be relied upon as incriminating conduct under s 20 has been deferred to after the close of evidence.[10]
[10]See, eg, Mercer (a pseudonym) v The Queen [2021] VSCA 132, [13].
However, as the parties have now put forward their arguments on the prosecution’s reliance on the challenged items of incriminating conduct at an early stage, and no party suggested I should defer my decision on these items, I will proceed by considering whether certain conduct can be relied upon as incriminating conduct at trial, on the basis of whether — on the limited materials placed before me — an innocent explanation of the post-offence conduct is so inherently likely that the conduct could not properly be regarded as evidence of guilt.[11]
[11]See R v Ciantar (2006) 16 VR 26.
Put another way, my task at this stage is to determine if I am satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so far identified, is capable of demonstrating evidence of guilt, and subsequently, the post-offence conduct should be left to the trier of the facts, in this case myself as the trial judge, to determine on all of the evidence whether it has that effect.
In assessing whether the presently challenged items of incriminating conduct could be reasonably capable of being viewed as evidence of incriminating conduct I have been careful not to reach conclusions about the evidence which I will hear at the appropriate stage of trial. Furthermore, I have kept in mind that the prosecution brings separate cases against each accused and thus the cases against each accused, and the assessment of the disputed evidence, must take place on the basis of the evidence properly and separately admissible against each.
As my assessment of the admissibility of these pieces of evidence has been made on less than all of the evidence, the parties will be entitled to seek to reagitate their arguments under s 20 of the Jury Directions Act at the close of evidence in the trial, if they wish to do so.
However, as this trial is proceeding by judge alone, rather than before a jury, the potential prejudice which s 20 is directed to appears to fall away, as I am required to provide reasons detailing my use of the evidence.[12] In particular, my reasoning must be consistent with s 21 of the Jury Directions Act. Thus, even where the prosecution is entitled to rely on evidence as evidence of incriminating conduct, that evidence would only be treated as such if the Court is ultimately satisfied that the conduct occurred and the only reasonable explanation of the conduct is that the accused believed they had committed the offence charged or an element of the offence charged.
[12]See, eg, R v Dawson [2022] NSWSC 877, [32]; R v Droudis (No 13) [2016] NSWSC 1350, [83]–[95].
The prosecution case
As stated above, I have had regard to the facts as alleged in the prosecution opening in assessing the present applications. To provide context for the present applications, it is necessary to briefly summarise the relevant aspects of the prosecution opening.
The fatal attack on the deceased was captured on CCTV footage from premises located at 204 Elizabeth Street, Coburg. It shows the deceased being physically attacked by eight individuals and ultimately stabbed to death outside a home in a suburban street in the early hours of Sunday 13 March.[13]
[13]All dates in this ruling are in 2022 unless otherwise stated.
The prosecution case is that each of the accused participated in the attack on the deceased and are each depicted in the CCTV footage. Relevantly, for the present applications, the prosecution contends that the individuals in the footage that they say are QM and SA are depicted stabbing the deceased.
The prosecution contends that each of the four accused are liable for the offence of murder as they were involved in the deceased’s murder pursuant to an agreement, arrangement or understanding.[14]
[14]Crimes Act 1958 (Vic) s 323(1)(c).
The prosecution case is that the motive for the murder was simmering tension between a youth group known as the ‘9ers’ and a youth group in the Heidelberg area known as ‘H-Town’. The prosecution opening alleges that each of the accused were known associates of the ‘9ers’.
The prosecution intends to rely on, inter alia, phone records (including snapchat videos), cell tower evidence, and CCTV videos to show the accused’s movements on 12 March and in the early hours of 13 March.
The prosecution contends that on the evening of Saturday 12 March, RA held a party at her family home in Reservoir which was attended by the deceased, along with his friends KH and TH. TH is said to be associated with members of the youth group known as ‘H-Town’. Also at the party were HP and GD. HP is said by the prosecution to be a known associate of the ‘9ers’.
The prosecution alleges that during the party HP made a number of recordings on her phone where references to ‘[SA Nickname]’ coming can be heard. The prosecution contends that SA was known by the nickname ‘[SA Nickname]’. The prosecution also alleges that HP made a number of calls to QM’s mobile phone and sent a video to him that she took at the party.
The prosecution alleges that in the early hours of 13 March the four accused, along with four other co-offenders, travelled in a car from Tarneit to the street in which the party was being held. The prosecution contends that HP and GD approached the vehicle before it moved off and performed a U-turn.
TH, his cousin KH and the deceased were said to be walking on the footpath of a nearby street when the car pulled up adjacent to them and within seconds four of the offenders exited the vehicle and chased them causing them to separate. The offenders returned to the vehicle and gave chase in the car.
At 2:28am the deceased is captured on CCTV walking along the footpath adjacent to 204 Elizabeth Street. CCTV depicts the vehicle driving past before arriving at the crime scene and stopping. The deceased turns and faces the vehicle and all eight offenders exit the vehicle in pursuit of the deceased, with the fatal attack captured on the CCTV.
The prosecution opening reveals that in making their case against the accused that the prosecution intends to rely on a large volume of other material, including the evidence underlying the items of incriminating conduct in the prosecution’s notice which are considered below.
QM
The issues in relation to QM at trial are his identity as one of the assailants caught on CCTV attacking the deceased, whether he was party to an agreement, arrangement or understanding to murder the deceased and whether he had the requisite intention.
The prosecution’s notice identifies fourteen items of conduct on which the prosecution relies as incriminating conduct of QM. However, at this stage of the proceedings, only item 10 is challenged. That item is described in the notice as follows:
On 14 March 2022, [QM] modified a note on his phone containing rap lyrics. The lyrics then read:
He was talking up on the 9 you fucked up for goodness sakes
Like how many times how many times did I insert my blade?
Like how many time did I do it wit (sic) hate
Had a mask on my face cause I can’t be bait
Flaaco I found where u stay best not lack or we spin a renegade
My broskis way too tapped when he risee his mind and slashing away
They said it’s tit for tat so I stepped with cro when shit got packed
For present purposes it can be accepted that the note containing these lyrics was extracted by police from QM’s phone. During pre-trial argument a ‘Cellebrite Extract’ was tendered which shows that the note was created on the phone at 11:56:32pm (UTC+11) on 8 March and modified at 9:29:20pm (UTC+11) on 14 March.
Submissions
The prosecution submits that it is open to conclude that these lyrics include graphic descriptions of the offending that took place and that led to the death of the deceased. In their written submissions they contend:
The first line refers to the alleged motive of the offending, the next two lines refer to the stabbing of the victim, numerous times. The fourth line refers to a mask on his face. The CCTV footage of [QM] leaving his home in Amsterdam Avenue before traveling to the murder scene, depicts the offender, the Crown says is this accused, with a mask or balaclava pulled up over the bottom half of his face.
The prosecution submits that when considered with other evidence in this case, the only reasonable conclusion is that QM was writing about being involved in the stabbing murder of the deceased, and accordingly, it could be rationally concluded that the only reasonable explanation for the writings is the inference that the prosecution contends.
The prosecution further submits that in any event the modification of the note containing the lyrics is a piece of circumstantial evidence that supports the prosecution case, and is relevant and admissible to provide motive and context of what occurred even if it cannot be relied upon as evidence of incriminating conduct.
On behalf of QM it was argued that the Cellebrite data shows that the note was created before the deceased’s death, and while it was amended after the deceased’s death the prosecution is unable to say in what way it was amended. It is argued that lyrics are commonly written about fictional events and that the prosecution would be on stronger ground if they could say the note was created in its whole after the murder. It was also submitted that the prosecution is seeking to use a bootstraps argument as for the amendment of the note to have any meaning you have to first accept that QM is guilty of murder in circumstances where the prosecution is unable to establish that the relevant passages were not written on 8 March.
Consideration
The question for the Court is whether QM’s alleged conduct of modifying the note on his phone containing rap lyrics could be reasonably capable of being viewed as evidence of incriminating conduct. The question whether the prosecution may rely on QM’s conduct – modifying the rap lyrics on 14 March– involves the resolution of two questions, namely:
(a) whether the Court might reasonably conclude that QM’s conduct was an implied admission by him as to the commission of the offence charged (murder) or an element of it; and
(b) if so, whether the Court could conclude that that inference was the only reasonable conclusion available on the evidence.
In respect of the first question, it is important to focus precisely on the specific implied admission which, the prosecution contends, was constituted by QM’s conduct. In essence, the prosecution seeks to contend that that conduct constituted an admission by QM that he was present and intentionally involved in the offending and that he participated in an agreement, arrangement or understanding to attack the deceased with the joint intention to at least cause really serious injury or death.
For completeness, as set out above, ‘conduct’ is defined in a manner which limits it to conduct ‘which occurs after the event or events alleged to constitute an offence charged’. While the prosecution accepts that it cannot show exactly what changes were made to the note on 14 March, the conduct identified in the notice being the modification (to some extent) of the note containing rap lyrics falls within the definition of conduct in the Jury Directions Act s 18.
On the materials before the Court, the rap lyrics appear capable of being interpreted as a description of the alleged offending. There is a reference to ‘the 9’, presumably the ‘9ers’, that the victim or someone ‘fucked up’ by ‘talking up on the 9’ and to the stabbing of someone numerous times, as the deceased was. The fourth line refers to a mask on the offender’s face. While the Court has not seen the footage, for the purpose of this ruling I accept the prosecution’s contention that there is CCTV of QM leaving his home on 12 March wearing a mask or balaclava pulled up over the bottom half of his face.
When considering the rap lyrics with other evidence, including the CCTV of QM leaving his home, the CCTV footage showing the nature of the attack on the deceased and the large number of stab wounds inflicted upon the deceased, the modification of the rap lyrics appears to be capable of constituting evidence of incriminating conduct. It may be that based on the evidence at trial it is accepted that it was not simply a coincidence that the lyrics describe circumstances similar to that of the alleged offending and QM’s alleged involvement in the offending.
I accept that an argument to the contrary is the fact that the note was created on 8 March, before the offending, and subsequently modified on 14 March. The fact of the note’s creation on 8 March does not of itself render the material for the purpose of this application inadmissible as incriminating conduct. However, even if it was accepted that QM wrote the lyrics on 8 March and he made a minor modification to the lyrics the day after the alleged offending, the fact that he accessed and in some way modified lyrics, which describe circumstances similar to the offending, could itself potentially be seen as incriminating conduct. Further the lyrics are capable of being interpreted as an implied admission that he held a murderous intention at the time.
In my view, a Court could legitimately infer that the note was modified on 14 March and that the lyrics were written on that date or substantially modified on that date, in circumstances where he was aware that he had intentionally participated in the assault on the deceased with an intention to kill him. At this stage, based on the limited materials before the Court, I do not consider that an innocent explanation of the post-offence conduct of modifying the rap lyrics on the phone, in some way, is so inherently likely that the conduct could not properly be regarded as evidence of guilt.
It may be open on the basis of all of the evidence led at trial to infer that it was far more likely that the lyrics were written on 14 March, given the content of the lyrics and the strong temporal connection to the assault. The lyrics appear descriptive of the assault and may be capable of amounting to evidence that can be considered incriminating conduct. The critical issue is whether the Court could rationally conclude that that inference is the only inference reasonably available in the circumstances. In order to be able to logically reach that conclusion, the Court would need to be able to exclude any other competing hypothesis as not being reasonably open. This conclusion is necessarily to be determined at the conclusion of the trial and based on all the evidence as a whole.
As with the other evidence subject to the present applications, a conclusion that the prosecution may rely on the evidence as evidence of incriminating conduct in no way means that it will ultimately be accepted as such.
In any event, QM did not appear to submit that the note containing the rap lyrics could only be admissible as incriminating conduct and not for any other purpose. The Court accepts the prosecution submission that, regardless of whether it is relied upon as incriminating conduct, the note is relevant and admissible to provide motive and context of what occurred. This would be so even if the Court did not ultimately accept that the words in the note were written after the deceased’s death.
Furthermore, while no application was made under s 137 of the Evidence Act2008 (Vic) (‘Evidence Act’) in relation to this evidence, the Court acknowledges that if this case were to be heard by a jury there may be a danger of misuse of evidence of this kind, and some of the other items which are the subject of this ruling. However, such issues are ameliorated in the present circumstances where the trial is to proceed by judge alone. Judges are aware of the dangers of the misapplication of such evidence and are trained to appropriately deal with evidence of this kind. Furthermore, any use made of this evidence will be explained in written reasons.
PM
The issues in PM’s trial are:
(a) whether or not he had the capacity to be criminally responsible for his actions, that is whether he was doli incapax;
(b) whether he held the requisite intention for murder; and
(c) whether he participated in an agreement, arrangement or understanding to attack the deceased with the requisite murderous intention.
PM was aged thirteen years and three weeks at the time of the alleged offending. Consequently the prosecution is obliged to rebut the presumption of doli incapax in PM’s trial. The prosecution has filed a separate summary of prosecution opening for trial in relation to this issue. The prosecution sets out a variety of pieces of evidence it submits will rebut the presumption of doli incapax beyond reasonable doubt. For present purposes, I note that this includes expert evidence from Dr Karen Owen who will give evidence in relation to a variety of matters including her opinion that ’[PM’s] presentation reflects adherence to an alternative moral code as opposed to a lack of understanding that his behaviour is seriously or gravely wrong’.[15]
[15]Summary of prosecution opening (Doli Incapax) filed 7 February 2023, [236].
The only item in the prosecution’s notice relating to [PM] provides:
On 1 April 2022 [PM], whilst in custody, had his young (sic) sister merge a call with “‘[SA Nickname]”. He discussed GD with “‘[SA Nickname]” and how she “snitched”, with [PM] stating: “Fuck. Hey, did niggers – niggers deal with it? Hey, did niggers – niggers deal with it? Hey, bro, pump that bitch. Hey, pump that bitch. Hey [SA Nickname], give me two minutes”.
The following exhibits were introduced in relation to this conduct:
(a) two statements of GD;
(b) statement of Operator 163 dated 1 April 2022 and 167 dated 24 March 2022; and
(c) audio of ARUNTA call and transcript.
Submissions
The prosecution contends that the ‘[SA Nickname]’ on the phone call with PM was SA. The prosecution submits that in the phone call, PM is discussing interfering with a witness who was present and potentially had information about what happened during the offending and the identity of the offenders.
It is submitted that this evidence betrays knowledge of the offending, including the seriousness of the possibility of the witness giving evidence, and is reasonably capable of amounting to incriminating conduct. Particularly when viewed alongside other pieces of evidence, including CCTV which is said to show GD and HP approaching the vehicle near the scene. It is submitted that, acting rationally, it would be open for the Court to ultimately conclude that the only reasonable explanation for PM to be discussing interfering with a potential witness who he believed had ‘snitched’ is that he was guilty of murder and that it was seriously morally wrong.
The prosecution contends that the evidence is nonetheless relevant and admissible for the purpose of demonstrating PM’s knowledge and understanding of the serious wrongfulness of his actions as well as his involvement in an agreement, arrangement or understanding at the time of the deceased’s death.[16] The prosecution contends that the Arunta call is capable of supporting a finding that SA was a person involved in the offending and therefore is relevant and admissible in the case against SA.
[16]In relation to the evidence being used as relevant to supporting an agreement, arrangement or understanding the prosecution relies upon the reasoning in Lowe v The Queen (2015) 48 VR 351.
The elements in dispute for PM are complicity, intention and capacity. It is not in issue in PM’s trial that he was present at the assault on the deceased and he has consistently identified himself in the CCTV footage.
It was submitted on behalf of PM that there is a clear alternative for PM’s remarks in that he is responding disparagingly to the comment made by the unknown male on the call (said by the prosecution to be SA) regarding GD. PM submits that when regard is had to context, the statements relate to his arrest and not to the assault on the deceased. This is also said to be supported by the statements of operators 163 and 167 who were present at the arrest.
Furthermore, at the time PM does not know what GD knows or what she does not know about the assault and he has no reason to know she has made a statement or is a potential witness. In any event, her statements do not suggest she knew of PM’s involvement and there is no evidence PM had any contact with GD before or after the offending.
Ultimately it was contended that the remarks in the call do nothing to reflect PM’s state of mind or capacity at the time of the attack on the deceased. Furthermore, it was submitted that the Arunta call cannot have anything to do with PM’s capacity to form the requisite intention as that falls to be assessed at the time of the offending and a lot has happened to PM in the time since. In particular, the deceased has died, his death is in the news, PM has been arrested, charged with murder and has been in custody on remand on that charge of murder. It is also submitted that the evidence cannot be relevant to complicity as it says nothing of an agreement, arrangement or understanding at the time of the offending.
Consideration
The question whether the prosecution may rely on the conduct of PM, in saying those words in an Arunta call between PM, his sister and ‘[SA Nickname]’ on 1 April, as incriminating conduct, involves again the resolution of two questions, namely:
(a) whether the Court might reasonably conclude that that conduct by PM was an implied admission as to the commission of the offence charged (murder) or an element of it; and
(b) if so, whether the Court could conclude that that inference was the only reasonable conclusion available on the evidence.
In respect of the first question, it is important to focus precisely on the specific implied admission which, the prosecution contends, was constituted by PM’s words. In essence the prosecution contends that PM’s words constituted an admission by PM that he had intentionally participated in the assault on the deceased and that he was aware that that assault would result in the deceased being killed; and that he had the capacity at the time to understand what he was doing was seriously morally wrong.
An examination of the transcript of the Arunta call reveals that PM appears to be referring to GD having ‘snitched’ in relation to his whereabouts at the time of his arrest, and not as to any involvement he may have had with the deceased’s death.
PM accepts that he was present at the scene and participated in the attack on the deceased. As such, even if PM’s statements in the Arunta call were ultimately found to be related to GD snitching about PM’s involvement in the attack, his statements do not appear capable of being viewed as implied admissions that he had the relevant intention or that he was party to an agreement, arrangement or understanding to attack the deceased with the requisite intent. Furthermore, the contents of the Arunta call do not appear capable of amounting to an implied admission that he had the capacity to be criminally responsible for his actions as the prosecution sought to suggest. Based on the transcript of the Arunta call I cannot logically reach the conclusion sought by the prosecution and cannot exclude the competing and stronger hypothesis that the statements were about his arrest.
Nonetheless, I consider the Arunta call may be relevant evidence for purposes other than as incriminating conduct. For example, in relation to the issue of doli incapax the prosecution may well seek to admit it as circumstantial evidence to demonstrate PM’s understanding of, and adherence to, a certain moral code, notwithstanding that the call occurred after the alleged offending.
Accordingly, the prosecution will not be able to rely on it as evidence of incriminating conduct as it does not appear to be reasonably capable of being viewed as an implied admission of any disputed element of the offence charged. However, the Arunta call may nonetheless be relevant and admissible in PM’s trial.
SA
The primary issue in SA’s trial is whether he was present and involved in the offending. SA also denies that he participated in an agreement, arrangement or understanding to attack the deceased with the requisite murderous intention.
The prosecution’s notice contains 10 items of conduct relating to SA. SA challenges each of those items except for item 10 which will be addressed at the conclusion of the evidence.
The central question for the Court is therefore whether each item of SA’s alleged conduct could be reasonably capable of being viewed as evidence of incriminating conduct. The question of whether the prosecution may rely on each item of conduct as incriminating conduct involves the resolution of two questions, namely:
(a) whether the Court might reasonably conclude that SA’s conduct was an implied admission that he was involved in the offending against the deceased; and
(b) if so, whether the Court could conclude that that inference was the only reasonable conclusion available on the evidence.
The prosecution contends that each of the challenged items in the notice constitute an implied admission that SA was involved in the offending against the deceased.
Items 1, 2 and 4
The argument for items 1, 2 and 4 in the prosecution’s notice were dealt with together. These items relate to the following alleged conduct:
1.At 10.27am on 13 March, [SA] saved to his phone a screenshot of the deceased’s Instagram page.
2.[SA] used his phone to search the internet for “Coburg north stabbing” on 14 March at 12.56am, 16 March 2022 at 8.24am and 20 March 2022 at 3.35pm.
4.On 20 March, [SA] took a screenshot of an article about the deceased with a photograph of a letter to the deceased left at the crime scene.
Submissions
The prosecution submits that each of these items involves SA seeking information about the deceased and his murder and that the only reason for SA engaging in this conduct is because he was involved in the offending. The prosecution submits this conclusion is strengthened when the conduct is considered along with other evidence in SA’s case. In particular:
(a) that there is no association between SA and the deceased;
(b) the timing of the screenshot at 10:27am on 13 March; and
(c) the fact that the deceased’s name had not been released publicly and the most likely way SA knew the identity of the deceased is because he had intimate knowledge of the offending.
The prosecution submits that, in any event, each of these items are relevant and capable of a admission into evidence even if they were not relied upon as incriminating conduct. However, the prosecution did not specifically identify how it would seek to rely upon this evidence if it were not able to rely upon it as incriminating conduct.
On behalf of SA it was submitted that just because the deceased’s name had not been released to the public does not mean it was not available amongst a certain community of young people. In this regard, SA submits that HP and GD were present at the scene when TH was told that the deceased had died and this news was likely to have been circulated amongst their networks quite quickly. Furthermore, some of the co-accused who have admitted presence have a close association with SA. Therefore, an alternative explanation is that SA made the searches as he became aware that some of his close friends may have been involved. SA submits that taken at their highest these items only demonstrate an interest or desire to find further information which falls short of amounting to an implied admission.
Consideration
Given the temporal connection of the conduct set out in items 1, 2 and 4 to the deceased’s death and that the conduct is all focused on the deceased and his death, I consider each of these items of conduct appear capable of being viewed as an implied admission that SA was involved in the offending. Accepting SA took the screenshot of the deceased’s Instagram account shortly after the attack but before the deceased’s name had been publicly announced, in circumstances where SA and the deceased had no known association, alongside SA’s interest in the stabbing, I consider the items 1, 2 and 4 are capable of being viewed as suggesting that SA was involved in the attack on the deceased.
While there may be alternate innocent explanations for SA’s interest in the deceased and his death, at this stage, it cannot be said that they are so inherently likely that the conduct could never properly be viewed as evidence of incriminating conduct. That is, a possible explanation is that SA may have engaged in the conduct out of curiosity because of his connection with people who knew of the attack. However, based on the limited material before me I consider that the timing of the conduct in items 1, 2 and 4 can be viewed as incriminating conduct. As such, on the evidence currently before me, it would be possible for the Court to ultimately conclude that that inference is the only reasonable conclusion on the evidence.
Accordingly, at this stage, the prosecution can rely upon items 1, 2 and 4 as incriminating conduct. However, whether this evidence could ultimately amount to incriminating conduct will need to be assessed at the appropriate time in light of all of the evidence.
Item 3
Item 3 in the prosecution’s notice provides:
On 14 March 2022, [SA] set up an AusPassport account. On 15 March 2022, he obtained a passport photograph of himself. On 16 March 2022, he used his phone to search the internet for ‘my passport sign in’ and accessed the website of the Australian Passport Office.
Submissions
The prosecution submits that the timing of SA setting up a passport account, obtaining a passport photo and searching the internet for ‘my passport sign in’, in combination with other evidence such as his search for information about what is known of the offending, leads to the irresistible inference that he was making plans to flee as he was involved in the offending. As such it was submitted that this evidence is reasonably capable of amounting to incriminating conduct.
The prosecution stressed that SA took concrete steps in the days after the offending and there is nothing on SA’s phone or accounts between the September 2021 note and the offending, suggesting he was obtaining a passport.
On behalf of SA it was submitted that within the ‘Cellebrite’ documents said to be extracted from his phone there is a note created approximately six months before the deceased’s death which is titled ‘82los22vd passport number’. It is submitted that on face value it appears that note is referring to either an existing passport or an ongoing passport application and that such an explanation removes the significance of the conduct on 14 to 16 March.
SA submits that the prosecution is relying on bootstraps reasoning as one has to conclude that the offence has been committed for there to be anything nefarious in his attempts to obtain a passport. Taken at its highest item 3 is simply an indication that SA has taken some steps to process a passport application, six months after he had taken other steps in relation to his passport. Furthermore, it was emphasised that there is no evidence of concrete attempts to flee such as the booking of travel or the approaching of exits of international departure, in circumstances where SA was not arrested until some weeks later on 7 April.
Consideration
It was not suggested that the evidence underlying item 3 was relevant or admissible for any other purpose than as incriminating conduct. However, I am satisfied that, having regard to the material before the Court, taking such steps at a time so soon after the deceased’s death could amount to an implied admission that SA was involved in the deceased’s death.
The conduct in question occurred shortly after the alleged offending and is potentially capable of being viewed as steps to flee the country. It is suggestive that SA may have been in a state of panic and considering fleeing. While it may be that these steps were taken to flee from the risk that he would be incorrectly implicated in the offending of his associates or that he was seeking to go overseas for another purpose, such innocent explanations are not so inherently likely that the conduct could not properly be regarded as evidence of guilt. Accordingly, the conduct has the capacity to be rationally viewed as an implied admission that SA was involved in the attack on the deceased.
The result may have been different if there were evidence, for example, that SA was planning an overseas trip in the weeks prior to the deceased’s death, thereby providing an inherently likely innocent explanation, notwithstanding the temporal proximity to the death. However, the note in SA’s phone referring to a passport was produced approximately 6 months earlier and does not alone create an innocent explanation of the post-offence conduct such that it is so inherently likely that the conduct could not properly be regarded as evidence of guilt.
Item 5
Item 5 in the prosecution’s notice provides:
On 23 March, [SA] created an account on the Clubhouse phone application in the name of ‘[SA Nickname]’.
The Clubhouse application was described in submissions as a social media application where users can make audio group calls. The prosecution tendered images of this account from the Cellebrite extraction of the data of the phone alleged to be SA’s. The account appears to be named ‘[SA Nickname] Cutler’ underneath which is the tag ‘@[SA Nickname]’. The account has six ‘followers’ and 18 ‘following’ and is recorded as ‘joined Mar 23, 2022’. The photograph associated with the account shows an individual, apparently in a car, at the centre of the image with half of another person’s face visible on the left side of the image. The prosecution contends that the person in the centre of the image is SA. I will accept for present purposes that this is in fact a photo of SA. There was otherwise no evidence relating to the account and how, or whether, it had been used.
Submissions
The prosecution submits that SA created a profile on the Clubhouse application in the name ‘[SA Nickname] Cutler’, using his nickname as the first name and the deceased’s surname as the surname. The prosecution contends that the use of the deceased’s surname in this way was an attempt to taunt or brag about the offending to other social media users and that in combination with the other evidence, including items 1, 2 and 4 in the prosecution’s notice, this can be the only reason for this conduct. Accordingly, the prosecution submits that this conduct amounts to an implied admission of SA’s involvement in the offending and is reasonably capable of amounting to incriminating conduct.
On behalf of SA it was emphasised that:
(a) there is evidence in the form of a preliminary device report that there were 47 accounts to various applications on the phone said to be SA’s and at least four of these accounts do not appear to be associated with SA; and
(b) the photo on the Clubhouse account includes another person beside the one the prosecution suggest is SA.
Counsel for SA submits that this evidence suggests that the prosecution’s contention that SA created the account is not the only reasonable explanation. Furthermore, it is speculative to say what the purpose of the account was and there is no evidence that the account was used or accessed by SA. It is submitted that it is a piece of information in a vacuum which is not capable of being viewed as an implied admission of guilt.
Consideration
The Clubhouse account was created on 23 March, 10 days after the deceased’s death. Accepting for present purposes that SA created the account, the account has no more than a photo of SA and an account name which is a combination of SA’s alleged nickname and the deceased’s surname.
On the evidence before me, I do not consider I can conclude that the only reasonable explanation for the accused engaging in the conduct is that he believed he had been criminally involved in the murder of the deceased.
By the time the account was created SA would have been aware of the death. There is evidence (item 3) that SA took a screenshot of an article about the death. He would have most likely known that friends or associates of his were implicated in the deceased’s death. The evidence at this stage does not identify the time that the Clubhouse account was created, however, it is noted that on that day a number of search warrants were executed and five individuals were arrested in relation to the deceased’s death. The Court was informed that the Clubhouse application is for audio only. There is no other evidence about the use of the application other than it was on SA’s phone. At its highest, if SA created the account, it shows no more than that he was aware of the deceased, 10 days after the assault. Suggesting it was created as a taunt is to my mind too far a stretch and speculative. The creation of such an account is no doubt bizarre, however, even if it was done as a taunt or brag, this does not implicate SA personally in the actual attack on the deceased.
Considered alongside the other evidence, I do not consider this conduct is capable of amounting to an implied admission of guilt by SA. Accordingly, the prosecution will not be able to rely upon item 5 as incriminating conduct. However, the prosecution may still seek to introduce the evidence in relation to the account if it is relevant and admissible for another purpose. It is open to the prosecution to rely upon this evidence to show that SA goes by the nickname ‘[SA Nickname]’.
Item 6
Item 6 in the prosecution’s notice provides:
Between 29 March and 1 April 2022 [SA] created and later modified a note on his phone containing rap lyrics. The lyrics then read:
Shh got got for chatting on my broski
N he’s bro ran for he’s life
Most hated so I keep it closely
I did it in the day n I did it at night
My Rambo got way too horny
Now I’m the reason u can’t sleep at night
Pls don’t say u backed ur guy
U did 10 toes wit no goodbye
Bet u texted him wya
Shh got got so he didn’t reply
Spark up a j for DJ
For present purposes it can be accepted that this note was extracted by police from a phone belonging to SA.
Submissions
The prosecution contends that between 29 March and 1 April, SA created and modified rap lyrics on his phone referencing the offending and referring to the victim by his nickname ‘DJ’. The prosecution emphasises that the lyrics are written in the first person and submit that this is significant when considered with other evidence, in particular the fact that the deceased and accused were not known to each other. The prosecution contends that the lyrics refer to a motive for the offending, ‘chatting on my broski’ and it was suggested that the reference to ‘Rambo’ was a reference to a knife and that this is supported by SA’s use of the word ‘Rambo’ in an Arunta call on 27 March. The prosecution contends that the last five lines are most significant as they are said to refer to what happened to the deceased and that TH did not ‘back’ the deceased and instead ran away.
Accordingly, the prosecution contends that the lyrics and specific reference to the deceased amount to an implied admission that SA was present and involved in the offending against the deceased.
SA primarily submits that it is entirely unclear what the lyrics are purporting to refer to. There are a number of statements which clearly cannot be referrable to the offending, such as ‘I did it in the day and I did it in the night’. It is submitted that ‘Rambo’ does not necessarily refer to a knife and other rap lyrics contained in notes from the Cellebrite extraction of the phone said to be SA’s use this word to mean a phallus. As there is no single possible interpretation of the lyrics, the Court cannot be sure what they refer to and therefore the lyrics cannot be seen as amounting to incriminating conduct.
Consideration
Deciphering the precise meaning of the rap lyrics is not straightforward, given the use of slang. I accept that there may be differing interpretations of what is meant by the lyrics.
However, at this stage the prosecution’s interpretation is not fanciful, and if such an interpretation is accepted then the lyrics could be reasonably capable of being viewed as an implied admission that SA was present and involved in the offending against the deceased. The specific reference to the deceased by his nickname leaves open the inference that the lyrics are more likely about the events, including TH involvement on the night. As such at this stage the conduct is capable of amounting to an implied admission of SA’s guilt.
The prosecution will be entitled to rely upon the lyrics as evidence of incriminating conduct. Whether they are ultimately accepted as such of course remains to be seen.
Items 7, 8 and 9
The argument for items 7, 8 and 9 in the prosecution’s notice were dealt with together. These items relate to the following alleged conduct:
7.At 5.25pm on 27 March 2022 [QM], whilst in custody, had his mother merge a call with [SA]. They discussed whether there is enough evidence, with [QM] saying there isn’t but wondering why [SA] had not got ‘nagged’. [SA] replied that he felt it was because of the camera and how he was in beneath, sitting down. [QM] cut across him and told him to shut up. [QM] said that [another co-accused, [DM Nickname]’s sister had spoken to [HP], and [SA] said he knows what to do then. [QM] told [SA] that he was surprised that everyone kept their mouth shut. [SA] said he was surprised but it made him happy.
8.At 5.38pm on 27 March 2022 [QM], whilst in custody, had his mother merge a call with [SA]. They discussed the arrest of [another co-accused, JA] with [QM] asking [SA] if he had been done for this case yet. [SA] said he was at home waiting until he got nagged. [SA] asked [QM] if police arresting [JA] had asked where [SA] was, or if they had yelled his name. [SA] asked if [HP] told police that [SA] was there. He later told [QM] what he will do if he is remanded.
9.At 6.08pm on 1 April 2022 [QM], whilst in custody, had his mother merge a call with [SA]. [SA] referred to [HP] and [GD] snitching and [QM] agreed. [QM] said he was surprised everyone kept their mouth shut and is proud of them. [SA] said the only thing he was worrying about was the ‘younguns’.
Transcripts of these calls were provided to the Court.[17]
[17]Exhibit P-15, Transcript of calls recorded 27 March 2022 at 17:25 and 17:38, and on 1 April 2022 at 18:08.
Submissions
The prosecution submits that the representations in the Arunta calls are capable of amounting to implied admissions of the offending against the deceased. The prosecution contends that when viewed in whole and in relation to other evidence the two accused are discussing the offending and discussing the conduct now alleged against them.
In the alternative, the prosecution submits that these calls are relevant as pieces of circumstantial evidence capable of supporting evidence of an agreement, arrangement or understanding and involvement in the offending. The prosecution submits that the calls also constitute an admission as to presence of each of the accused at the crime scene and are admissible pursuant to s 81 of the Evidence Act.
SA submits that the Arunta calls do not amount to incriminating conduct and that they should be excluded pursuant to s 137 of the Evidence Act. It was contended that there are competing interpretations available about what is discussed in these calls.
For example, one possible interpretation is that SA is speaking to a friend and expressing concern that he is going to be wrongfully implicated in the offending. It is submitted that none of the statements in the Arunta call amount to an admission of involvement or presence and any representation made in the three calls are explained by SA’s concern of being falsely implicated, given he was closely associated and involved with QM and others during the day of 12 March 2022.
It was submitted on behalf of SA that in one of the calls SA says the reason he has not been arrested is because he is beneath the line of the camera, however, the person said to be SA in the CCTV footage is not sitting down or below the line of the camera but is instead constantly moving around and not occupying a particular position.
SA suggests that a further possible explanation for some of the content of the calls is that he is talking about being ‘nagged’ for other offending. Relying on the Court of Appeal’s decision in Wilson (a pseudonym) v The King (‘Wilson’),[18] SA submits that the admission of this evidence would put him in a serious forensic bind as it would require him to introduce evidence of bad character such as prior involvement with police.
[18][2022] VSCA 261 (McLeish, Kennedy JJA and Kidd AJA).
SA submits that, if the calls do not amount to incriminating conduct, then the probative value of them demonstrating an agreement with the co-accused is limited given there is other evidence that establishes the links between them and because of the imprecise and unclear language used during the calls which necessarily invites a degree of speculation. Given the unfairness arising from the ‘forensic bind’ the evidence would place SA in the balancing exercise that supports exclusion of the evidence under s 137 of the Evidence Act.
The prosecution submits that the fact that other interpretations of the conversations are open is a matter of argument and does not support the exclusion of the evidence. As to the reference in the Arunta calls about ducking down, the prosecution submits that the CCTV footage of the attack shows the individual they contend is SA go out of screen behind a tree and at one stage he can be seen sitting down.
In response to SA’s application under s 137 of the Evidence Act, the prosecution submits the probative value of the evidence could not be said to be low if it is inferred that the calls contain discussions of the offending. Furthermore, the prosecution submits that Wilson deals with completely different facts and in any case there is no unfair prejudice of any ‘forensic bind’ as the trial is proceeding by judge alone rather than by jury.
Consideration
While there may be other possible interpretations of, or explanations for, the content of the Arunta calls, on the evidence currently before the Court they appear capable of amounting to implied admissions that SA was involved in the offending against the deceased. The fact of another interpretation being open is not a basis for not allowing the evidence to be relied upon as incriminating conduct. SA’s interpretation is not the only interpretation of the conversations. The conversations are with QM who has been arrested for the deceased’s murder and amongst other things they discuss SA’s possible arrest and the fact that others have ‘kept their mouths shut’. I consider the nature of the conversations and the fact they were with a co-accused who was arrested at the time makes the conduct capable of being relied upon as incriminating conduct.
I agree with the prosecution’s submission that if the statements in the phone calls were ultimately found to be incriminating conduct that their probative value could not be said to be low. I do not accept that any probative value, even limited, would be outweighed by the danger of unfair prejudice to SA.
The fact of different interpretations of the content of the calls does not of itself create a danger of unfair prejudice. The determination of what was meant in the calls, and whether it can amount to incriminating conduct, is ultimately to be determined by the trier of fact at trial.
Accepting that the admission of the Arunta calls into evidence may require SA to lead at least some evidence of bad character, I do not consider he would be placed in the same level of ‘forensic bind’ as that discussed in Wilson.
Importantly, SA’s trial is proceeding as a trial by judge alone. Judges are trained and practised in limiting their use of evidence for appropriate purposes. Furthermore, in a judge-alone trial the judge is required to provide detailed written reasons explaining their reasoning and use of the evidence. As such, risks that evidence may be misused or misapplied, a risk that is commonly found in submissions with respect to s 137 in jury trials, are of lesser concern.[19] The Court will be required to produce reasons for its decision reducing the possibility that evidence will be used in a way that creates unfair prejudice to the accused.
[19]R v Warwick (No 55) [2018] NSWSC 2011, [40] (Garling J). See also R v Droudis (No 13) [2016] NSWSC 1350, [78]–[95] (Johnson J).
In R v Droudis (No 13), Johnson J recognised that even in a trial by judge alone ‘there may be procedural prejudice in the sense of an unfair forensic difficulty caused by the evidence’.[20] However, having regard to the potential procedural prejudice identified by SA, I do not consider that the such prejudice outweighs the probative value of the evidence. Any evidence of bad character could be appropriately limited by agreement or otherwise. Furthermore, as a result of this application, the Court is alive to the risks of procedural prejudice raised by SA, and will seek to guard against them. If necessary, directions could be made limiting the use of this evidence.
[20]R v Droudis (No 13) [2016] NSWSC 1350, [86].
Accordingly, the prosecution will be entitled to rely on the Arunta calls as evidence of incriminating conduct at trial.
Conclusion
For the foregoing reasons, at this stage, the prosecution will be entitled to rely upon each of the items in the prosecution’s notice as evidence of incriminating conduct, except for:
(a) Item 1 in relation to PM (the Arunta call); and
(b) Item 5 in relation to SA (the Clubhouse account).
However, the prosecution will still be entitled to lead the evidence underlying each of these items at trial as that evidence is relevant and admissible for other purposes.
As has been stated, the acceptance that the other items of incriminating conduct may be relied upon as such does not mean that the evidence will ultimately be accepted as incriminating conduct.
Pursuant to s 21 of the Jury Directions Act such evidence would only be treated as incriminating conduct if the Court is ultimately satisfied that the conduct occurred and the only reasonable explanation of the conduct is that the accused believed they had committed the offence charged or an element of the offence charged.
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