Director of Public Prosecutions v Scriven (Ruling No. 1)
[2015] VSC 217
•6 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0181
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM SCRIVEN |
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JUDGE: | MAXWELL P |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 – 6 February 2015 |
DATE OF RULING: | 6 February 2015 |
CASE MAY BE CITED AS: | DPP v Scriven (Ruling No. 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 217 |
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EVIDENCE —Criminal trial — Murder — Tendency evidence — Accused stabbed victim to death —Defence of self-defence —Evidence of three prior incidents where accused used weapon — Whether probative of state of mind at time of fatal stabbing — Whether relevant similarities — Lapse of time — Unreliability — Lack of probative value — Danger of confusion of jury — Evidence not admissible — Velkoski v The Queen [2014] VSCA 121 applied — Evidence Act2008 ss 97, 135.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams QC with Mr G Hayward | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Ms R Shann with Ms A Beech | Leanne Warren & Associates |
MAXWELL P:
William Scriven is facing trial on one charge of murder.[1] It is alleged that, on 22 December 2012, Mr Scriven killed Wayne Bayley by stabbing him a number of times with a knife, intending to kill him or — at least — to cause him really serious injury. Mr Bayley died shortly after being stabbed.
[1]Although these reasons are being published after the conclusion of the trial, the ruling to which they relate was delivered before any evidence was called. The reasons are written as if delivered on that date.
This is the second trial of the charge. Mr Scriven was committed for trial in October 2013 and, a jury was empanelled on 8 May 2014. Unfortunately, the prosecutor in final address made reference to a matter which resulted in a successful defence application for the discharge of the jury.
The trial was fixed to recommence on 4 February 2015. I held two directions hearings, on 3 and 17 December 2014 respectively. On 14 January 2015, a tendency notice was filed in accordance with s 97(1) of the Evidence Act2008. The notice stated that the Crown proposed to adduce evidence to establish that Mr Scriven had a tendency
to act aggressively and violently during the course of disputes, arguments or confrontations, and in particular to resort to the production and/or the use of a weapon namely a knife or bottle to solve those disputes.
As will appear, the evidence identified in the notice relates to four separate incidents. Two of the incidents occurred long before the events the subject of the murder charge (in 1998 and 1999 respectively), while the other two occurred in close proximity to the 2012 event (respectively, 10 days before and the evening before the fatal altercation). Since the Crown had not sought to rely on any of this evidence at the first trial, the defence had had no opportunity to cross-examine any of the relevant witnesses. Accordingly, the Crown was required to make the witnesses available for cross-examination on the voir dire.
That took place on 4 and 5 February 2015. In some instances, the witness had made a police statement at the time of the incident in question. In other instances, the statement relied on had been prepared only in very recent days. Unsurprisingly, the haste with which the relevant evidence has had to be assembled and presented has led to the unavailability of relevant witnesses and limited opportunity for defence preparation.
The application to adduce the tendency evidence was opposed by the defence. For reasons which follow, I would refuse the application so far as it relates to the first three incidents. It is not in dispute that the evidence relating to the fourth incident, occurring in the early evening before the fatal altercation, is admissible in the trial.[2]
[2]In the event, the prosecution did not seek to maintain at trial that this evidence was properly to be characterised as tendency evidence.
The tendency notice
According to the notice, the Crown case is that on 22 December 2012 Mr Scriven came out of his house ‘with a knife secreted on his person that [was] hidden up the sleeve of a jacket he was wearing’. At the time, it will be alleged, Ms Samantha Warner, a friend of Mr Scriven’s, was exchanging words with Ms Kylie Stone and others outside Mr Scriven’s house. It will be alleged that Mr Scriven
got involved acting aggressively verbally and physically, ultimately stabbing [Mr Bayley] a number of times with the knife, thereby causing his death.
According to the notice, the proposed tendency evidence is to be led in proof of Mr Scriven’s state of mind at the time he stabbed Mr Bayley. There are two elements of the Crown case to which the evidence is said to be relevant, namely, to prove that Mr Scriven:
(a) intended to kill Mr Bayley or cause him really serious injury; and
(b) was not acting in self-defence.
The contention in the notice is that the question of ‘who had/or produced the knife’ is central to the self-defence issue:
It was, the Crown says, the Accused who produced and used the knife not in any belief he was defending himself, but rather consistent with the way he has acted on other occasions in the face of disputes or arguments he armed himself with the knife in an act of aggression, produced it and stabbed the deceased.
I turn to deal with the individual incidents, and what was revealed by the evidence led on the voir dire.
Incident 1: September 1998
The notice described the first incident in these terms:
The Accused got into a verbal argument with the victim at a party. The argument became heated and the Accused struck the victim over the back of head with a stubby, causing cuts to the back of his head.
On 7 May 1999, Mr Scriven pleaded guilty to a charge of recklessly causing serious injury relating to this incident.
The Crown called only one witness to this incident, although a number of people had been present at the time. The witness had been present at the party. An argument was taking place between the victim and a third person, apparently over their respective dogs. The witness saw Mr Scriven come over and join in the argument. She did not see him strike the victim, but remembered hearing glass break and seeing the victim with glass on his head.
The victim himself had been expected to give evidence but was unavailable on 4 and 5 February. It was foreshadowed that he would probably be available on 9 February, and I have proceeded on that assumption.
Incident 2: March 1999
The second incident was described in the notice in these terms:
The Accused and the victim got into a verbal argument which escalated to physical fighting. The Accused produced a knife and stabbed the victim to the back of the neck several times.
On 7 May 1999, Mr Scriven pleaded guilty to a charge of assault with a weapon in relation to this incident.
The victim in this incident (G) gave evidence, describing the circumstances in some detail. (There were two other eyewitnesses, neither of whom gave evidence.) In short, Mr Scriven was staying at G’s house, having made his acquaintance through G’s girlfriend (B). G had found Mr Scriven sleeping with B. On the day in question, G had an argument with B about this. G was about to get into his car but B would not let him close the door. They wrestled, B fell over and G apologised to her.
When G got back into his car, Mr Scriven kicked his car. G stopped the car in the middle of the road, got out and ran towards Mr Scriven with his fists clenched, intending to punch him in the head. As G approached, Mr Scriven pulled a screwdriver out of his pocket. G tried to hit Scriven. They wrestled for the screwdriver and then Scriven stabbed G with the screwdriver. Under cross-examination, G agreed that he had started the fight. He was ‘furious’ with Mr Scriven. He accepted that Mr Scriven had not touched or threatened anybody, and had not produced a weapon before G got out of the car. G admitted that he had been overwhelmed by his anger.
Incident 3: 12 November 2012
The notice contained the following description of this incident:
A dispute occurred on 12 November 2012, at approximately 2230 hours at [Mr Scriven’s home]. At the time the Accused was drinking with neighbours at that address. The Accused became verbally aggressive, and then produced a knife and stabbed one of the neighbours, [RC], to the side of the head.
Only one witness (L) was called to give evidence about this incident. He was the brother of the victim (RC). (RC was unable to be located, the Court was told.) On the afternoon in question, the two brothers had been drinking at the back of their house, which abutted Mr Scriven’s back fence. At about 3:00 pm Mr Scriven asked if he could join them. They had not met him before but they agreed, and then spent some hours drinking together. During this time, Mr Scriven ‘flipped his lid’ on two occasions. L agreed that, during the course of that day, he had drunk somewhere between 12 and 18 full strength beers.
L and his brother then walked Mr Scriven back to his house. (In his police statement, L had said that, as they walked, Mr Scriven referred to ‘having some problems with the missus at the moment and you can probably help me out’. In the witness box, however, L could not recall this.) The three of them sat down in Mr Scriven’s house and resumed drinking. What happened thereafter was unclear. All that L could remember was being outside the house when he saw Mr Scriven holding a knife. He could not say where the knife had come from, or who had produced it, or whether there had been an altercation between Mr Scriven and his brother. The brother was subsequently stabbed but L had no knowledge of how that had occurred.
The requirement of similarity
In its recent decision in Velkoski v The Queen,[3] the Court of Appeal held that the admissibility of evidence as tendency evidence was to be determined according to the following principles:[4]
1.To be admissible, the other evidence must have significant probative value, which requires far more than ‘mere relevance’.[5]
2.To satisfy that requirement, there must be sufficient similarity or commonality of features, between the other conduct and the charged conduct, that the other evidence cogently increases the likelihood that the charged conduct occurred.
3.In deciding whether there is sufficient similarity or commonality between the features of the other conduct and the features of the charged conduct, it remains:
apposite and desirable to assess whether those features reveal ‘underlying unity’, a ‘pattern of conduct’, ‘modus operandi’, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the other evidence its relative strength.[6]
[3][2014] VSCA 121 (‘Velkoski’).
[4]This summary is taken from Rapson v The Queen [2014] VSCA 216, [16].
[5]Velkoski [2014] VSCA 121 [171].
[6]Ibid.
In the present case, the submission of the Crown is that these four incidents
demonstrate by their facts and circumstances such similarity to each other and the instant case as to reveal a pattern of conduct or underlying unity.
The relevant similarities are said to be the following:
In each incident the Accused has resorted to the production of a knife or bottle. In each incident that has followed … a dispute or argument and physical confrontation.
Two of the four incidents occurred at the same location as the subject case, namely Thexton Street.
Those two incidents occurring on 12 November 2012 and 21 December 2012, are also closely connected in time with the subject case.
All of the incidents involve neighbours or acquaintances.
All of the incidents involve alcohol.
As noted earlier, there is a dispute of fact as to how Mr Scriven came to be in possession of the knife with which he stabbed Mr Bayley. The Crown will be inviting the jury to infer that Mr Scriven had brought the knife with him, hidden up his sleeve, when he became involved in the fatal altercation. The proposed tendency evidence is said to be
capable of permitting an inference to be drawn that on this occasion he is more likely to have acted in conformity with that tendency to produce a knife.
Lack of probative value
There is, in my view, a fundamental difficulty with the Crown’s central contention. Put simply, the fact of a person’s having had a weapon in his possession at a particular moment is not — by itself — capable of proving anything about the state of mind with which, at some later time, he uses the weapon to inflict injury (or death) on another person. The mere fact of prior possession of the weapon is, for this purpose, of no probative value.
That would be true in the present case, in my opinion, even if (contrary to the fact) the evidence established that Mr Scriven had on each occasion deliberately equipped himself with a weapon in advance. But the point is made clearer still when, as here, the Crown does not confine itself to conduct properly described as forearming. Rather, the incidents are said to illustrate a tendency to ‘produce or use’ a weapon.
The breadth of that description is self-evident. Obviously, there are all sorts of possible reasons as to why a person might equip himself with a weapon in advance; more reasons still as to why he might subsequently produce that weapon; and an almost limitless number of possibilities as to why the person might use a weapon which became available to him at the scene.
In a case such as this, the tribunal of fact is concerned with the accused’s state of mind at the time the weapon is used to inflict the fatal blow(s). That intent will (in the absence of any express statements or admissions) be inferred from the circumstances, including but not limited to the accused’s conduct before, during and after striking the victim. Relevant circumstances will include:
·any prior dealings between the accused and the victim (or associates of the victim);
·the circumstance which brought the offender into physical proximity with the victim and (if present) any associates of the victim;
·whether the weapon was used offensively or defensively; and
·the behaviour of the victim before and during the fatal altercation.
Circumstances of this kind are likely to explain (in one case) why an accused came forearmed or (in another) why, though unarmed, he availed himself of a weapon readily at hand. Without that information, nothing can be inferred about his intent from the mere fact that (in the first case) he brought and produced a weapon or (in the second) he seized a weapon and used it.
For example, if the accused had been challenged to a fight by the victim, or had anticipated violence from the victim, his having armed himself in advance would assume the character of a defensive action. By contrast, if it could be shown that the accused had a grievance against the victim and had approached the victim angrily and aggressively, the forearming would take on an offensive character. Even then, circumstances might have changed dramatically during the unfolding of the fatal altercation, such that what began as a defensive action became offensive, and vice versa.
Even the act of using the weapon will, in many cases, be almost entirely neutral. It is the surrounding circumstances which will indicate whether it was an offensive or defensive act. For example, the use of the weapon may be an entirely defensive act, as where it is used for the purpose of disabling an aggressive attacker.
These general points are well illustrated by the factual circumstances of the incidents relied on here. They are as different from each other as might be expected, given that the only link between them is said to be Mr Scriven’s ‘production or use’ of a weapon. The incidents involve different people, in different settings, in dispute over very different matters, and Mr Scriven’s connection to the matter in dispute varies from case to case.
Thus, in the 1998 incident, the fight was between two other people, about their dogs. For reasons which are wholly unexplained by the evidence, Mr Scriven became involved and used a beer bottle — which he had in his hand — to strike one of the protagonists.
In 1999, the circumstances were again quite different. In that case, on the evidence, Mr Scriven himself was the target of a grievance. The chief source of G’s grievance was his belief that Mr Scriven had been sleeping with his girlfriend. On the evidence, Mr Scriven’s use of the screwdriver was initially — and, perhaps, predominantly — defensive. There was no evidence that he had forearmed himself with the screwdriver. On the contrary, the suspicion of G, who owned the screwdriver, was that Mr Scriven had previously taken it out of his toolbox in order to use it for car stealing.
On that view, Mr Scriven did no more than take advantage of an implement which happened to be available, in order to defend himself against — an admittedly highly angry — G, who wanted to punch him. These two examples demonstrate how the mere fact of Mr Scriven’s having had a weapon in his hand (in the first case, the bottle and, in the second case, the screwdriver) says nothing about his intention at the time of its subsequent use.
The November 2012 incident is different again. On the evidence, Mr Scriven was neither the holder, nor the object, of a grievance. Rather, it seems, he was in a state of distress because of difficulties in his relationship with his partner. That might be thought to have been the explanation for his ‘flipping his lid’ twice during his initial drinking session with L and his brother.
Nothing is known about the genesis of the later incident, when Mr Scriven was seen holding a knife out in the street, having chased L’s brother out of the house. Assuming in the Crown’s favour that the circumstances could support the inference that Mr Scriven ultimately stabbed the brother, it is impossible to know how or why Mr Scriven came into possession of the knife, or why he ultimately used it to stab the brother.
The present case stands in contrast to that considered by the Court of Appeal in KJM v The Queen [No 2].[7] There, as here, the accused was charged with murder. It was alleged that she had killed her domestic partner by stabbing. She admitted the killing but said that she had acted in self-defence. The Court of Appeal upheld the trial judge’s ruling that certain evidence was admissible as tendency evidence.
[7](2011) 33 VR 11 (‘KJM’).
The evidence in question concerned a number of prior incidents between the accused and former partners, evidence which — according to the s 97 notice — would establish that she had a tendency
to act aggressively or violently in the course of arguments or confrontations with boyfriends or partners and in particular to resort to the use of a weapon.
As can be seen, the tendency sought to be established there was defined much more narrowly than in the present case. As the Court of Appeal noted in CGL v DPP:[8]
As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has ‘significant’ probative value and—even more so—to demonstrate that its probative value ‘substantially outweighs’ the very real prejudicial effect of evidence of this kind.
[8](2010) 24 VR 486, 497 [40].
The trial judge in KJM was satisfied that the evidence had significant probative value. His Honour said:
I note the defence submissions in the present case that there are other differences between the three occasions concerned and the facts alleged in this trial. Nonetheless, the core feature of all of the occasions is the accused's extreme and violent reaction to her partner and threatening to use a weapon during a domestic argument. That the accused has such a tendency, if that is what the jury ultimately find, may, in their minds, be directly relevant to determining the state of mind of the accused in regard to whether she acted in self-defence.[9]
[9]Emphasis added.
In present case, as I have pointed out, there is no ‘core feature’ which links the three incidents. Indeed, there is no relevant similarity of any kind.
Other difficulties
For the reasons I have given, the evidence sought to be led had little if any probative value in relation to the fact in issue, namely, Mr Scriven’s state of mind at the time he stabbed Mr Bayley. That conclusion is sufficient to dispose of the application.
The evidence had other serious deficiencies, however, which should be mentioned for completeness. First, the Crown were not able in respect of any of the three incidents to call sufficient witnesses to enable an adequate picture of the relevant circumstances to be discerned. Plainly enough, the jury would not be able to draw any conclusions about Mr Scriven’s state of mind at the particular time in the particular incident without having heard from at least the principal eyewitnesses as to how the incident came about and what actually took place.
Secondly, there were real questions about the reliability of the evidence, both because of the lapse of time (in the case of the 1998 and 1999 incidents) and because of the very significant intoxication of L (in respect of the 2012 incident). Thirdly, even if the evidence relating to the earlier incidents had been sufficiently reliable, and had identified a relevant tendency, that would have been evidence only of a tendency of Mr Scriven in his late teenage years. I would not have been prepared to accept that evidence of a tendency exhibited at that age had any real probative value in relation to his state of mind at the age of 34, when he stabbed Mr Bayley. (I note in this regard that the trial judge’s ruling in KJM was premised on the prior incidents having been proximate in time to the fatal incident).
Finally, even if these other hurdles had been overcome, it would have been necessary to consider whether the evidence should nevertheless be excluded in exercise of the discretion conferred by s 135 of the Evidence Act 2008. In order for the tendency evidence to be properly presented to the jury, there would have had to be what amounted to a sub-trial in relation to each of the three incidents. In each case, evidence would have had to be led from a number of witnesses, each of whom would doubtless have been cross-examined, and both prosecution and defence would have had to make submissions as to what view the jury should take of Mr Scriven’s conduct (and state of mind) on that occasion.
Given that the trial of the murder charge is itself going to involve the investigation of two incidents — one at 7.30 pm and the other at 12.30 am on the same evening —each requiring evidence from a large number of eyewitnesses, there would in my opinion be a grave danger of the jury being ‘confused or misled’, within the meaning of s 135(b). It would, in my opinion, be almost impossible for the jury to keep separate in their minds the circumstances peculiar to each of the prior incidents.
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