Director of Public Prosecutions v Toohey (Ruling No 1)
[2016] VSC 702
•17 October 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0121; S CR 2015 0119; S CR 2015 0120
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WARWICK TOOHEY, JAKE FAIREST & GEORGIA FIELDS |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 13 & 14 October 2016 |
DATE OF RULING: | 17 October 2016 |
CASE MAY BE CITED AS: | DPP v Toohey & Ors (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 702 |
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CRIMINAL LAW – Murder – Joint criminal enterprise – Admissibility of evidence – Post-offence conduct involving use of deceased’s debit card – No notice of incriminating conduct – Crown eschews reliance on evidence as incriminating conduct – Whether explicit reliance required – Jury Directions Act 2015 ss 19, 20 – Lowe v The Queen [2015] VSCA 327 applied – Whether relevant to motive – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 1958 (Vic) s 137 – Where evidence relevant to defence of co-accused
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Dane QC with Ms K Argiropoulos | Office of Public Prosecutions |
| For the Accused Warwick Toohey | Mr T Alexander | Paul Vale Criminal Law |
| For the Accused Jake Fairest | Mr D Gibson | Victoria Legal Aid |
| For the Accused Georgia Fields | Mr P Kilduff | Stary Norton Halphen Criminal Lawyers |
HER HONOUR:
The three accused, Warwick Toohey (‘WT’), Jake Fairest (‘JF’) and Georgia Fields (‘GF’) are jointly charged with the murder of Robert Wright (‘the deceased’). The prosecution alleges that at 9:40 pm on Thursday 15 January 2015, the deceased was pushed from the balcony of his second-floor apartment pursuant to an agreement, arrangement or understanding between the three accused.
This ruling concerns the admissibility of evidence relating to the alleged fraudulent use of the deceased’s debit card by JF soon after the deceased had fallen from the balcony (‘the debit card evidence’). The Crown and counsel for JF each filed written submissions and made oral arguments to support their respective positions. Counsel for WT and GF in their oral submissions supported the admission of the debit card evidence.
JF submits, in brief, that the debit card evidence is inadmissible because the prosecution is impermissibly seeking to rely upon the evidence as incriminating conduct by operation of s 20(1)(a) of the Jury Directions Act 2015 (Vic) (‘JDA 2015’), no notice having been given as required under s 19(1). Alternatively, JF submits that the evidence should be excluded pursuant to s 137 of the Evidence Act 2008 (Vic).
For the reasons that follow, I have concluded that the debit card evidence is admissible. Sections 19(1) and 20(1)(a) of the JDA 2015 are not enlivened in the absence of explicit reliance on evidence of incriminating conduct by the Crown.[1] The debit card evidence is relevant and probative of the issues between the Crown and JF for purposes other than as implied admissions of guilt.
[1]Lowe v The Queen [2015] VSCA 327.
Further, the debit card evidence is also relevant to the issues between the Crown and WT and GF. The danger of unfair prejudice to JF is low and may be reduced further by an appropriate direction to the jury. I do not consider that the probative value of the evidence is outweighed by any danger of unfair prejudice to JF.
The background facts of the matter are as follows.
The three accused were each found unfit to stand trial, and the criminal proceedings against them have therefore been conducted as a joint special hearing pursuant to pt 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
All three accused are deaf and communicate in Australian Sign Language (‘Auslan’). WT and JF are also said to be intellectually disabled, although there is no specific evidence currently before the jury as to this fact. GF is also said to be of low intellect and to suffer from atypical autism, although, again, there is currently no specific evidence about this before the jury. It is anticipated that these facts will form part of a notice of agreed facts.
The Crown case is that WT and the deceased were friends who in December 2012 began living together as co-tenants in an apartment in Ringwood. Subsequently, their relationship became strained due to housekeeping issues and the like. It became worse when WT began inviting JF to the apartment and spending a lot of time away from the apartment with JF and GF towards the end of 2013.
In January 2014, the deceased accused WT of the theft of his iPad and iPhone from his bedroom. The deceased also raised a concern that JF was a thief and should not have been given the password for the security entry to the apartment, as WT had. After this incident, the deceased lost trust in WT and had a lock installed on his bedroom door.
In February 2014, Ms Michelle O’Neill, who is also deaf and fluent in Auslan and knew the three accused from the school that they attended, observed them whilst she happened to be travelling in the same train carriage. She witnessed the three accused conversing in Auslan about killing a man, with WT demonstrating killing the man by hitting him with a pole. She then saw JF produce an iPad from his bag and saw GF ask JF if he had stolen it, to which he said yes. At this, the three accused made high five gestures and looked happy.[2] Ms O’Neill intervened at this point and decided that the iPad should be handed in to the police. She persuaded JF to accompany her to a police station. JF handed in the iPad and told police that the iPad belonged to WT’s housemate (the deceased).
[2]Trial Transcript 580.
Following the theft of the iPhone and iPad, the deceased’s and WT’s support workers at Vicdeaf to took steps to resolve the escalating conflict between the deceased and WT, but their attempts were unsuccessful and the relationship remained poor. It seems that WT continued to spend a deal of time with GF and JF, and WT and GF were often seen together in public.
On 15 January 2015, the three accused were captured on CCTV cameras on a Ringwood-bound train conversing in Auslan about ways to kill the deceased. One of the ways discussed was that the deceased could be pushed and made to fall from a height. At one point, GF mentioned to WT and JF that the accused would have the apartment for themselves once the deceased was dead.[3]
[3]Bridge translation 25.
When the three accused got to the apartment building, CCTV cameras in the foyer and lift of the building recorded the three accused continuing the discussion from the train about the means to be used to kill the deceased. The three accused then entered the apartment shared by WT and the deceased on the second floor.
The conversation has been translated by an Auslan interpreter called by the Crown, and it included the following exchanges:
GF signs to JF, ‘You want dead or alive’ and ‘How die?’;
JF replies, ‘Want strangle,’ and GF signs, ‘Fall’;
JF signs, ‘Can strangle neck area, what do you think’;
GF responds, ‘I think falling is better’;
WT signs to JF, ‘Strangle risky,’ and GF signs, ‘Fall good, fall good’; and
WT signs to JF, ‘You first go in, grab … You say hello, how are you, grab and push forward.’
Shortly after, a witness saw the deceased fall from the second floor balcony of the apartment down to the ground floor. The Crown in the prosecution opening alleged that WT and JF pushed the deceased over the balcony railing whilst GF watched.
After the deceased had been pushed over, the Crown alleges that the three accused took items belonging to the deceased from his bedroom, including an iPad, membership and identity cards and, relevantly to this application, a Commonwealth Bank of Australia Mastercard debit card. All the cards except the debit card were collected into a zip lock bag and then placed in a tall boy drawer along with the iPad in WT’s bedroom. The Crown alleges that JF pocketed the debit card around this time.
Police attended the scene of the incident. The deceased was taken to the Royal Melbourne Hospital in a critical condition. He died a few days later from injuries received in the fall.
Police forced entry into the apartment and found the three accused sitting in a circle on WT’s bed in the dark. The attending police officer, Senior Constable Reitman, asked JF what had happened. JF immediately indicated, via gestures and words, that there had been a scuffle and WT had pushed the deceased off the balcony.
A short time later, Detective Senior Constable Riley attended the apartment. JF was known to Detective Riley, and after telling Detective Riley that the deceased had fallen off the balcony, he took Detective Riley to WT’s room and showed him the cards in WT’s drawer belonging to the deceased . When asked how the cards got there, JF said that WT had put them there. When challenged by Detective Riley whether he had anything that he should not have, JF produced the deceased‘s debit card from his pocket. When Detective Riley asked JF how he happened to have that card, JF replied that WT had put it there. Detective Riley then asked JF, ‘What happened to Robbie?’ and JF replied that ‘Warwick pushed Robbie.’[4]
[4]Trial Transcript 716.
In a Visual and Audio Recording of Evidence (‘VARE’) conducted on 16 January 2015 shortly after the incident, JF blamed WT and GF for forcing the deceased off the balcony and said that they were happy after the deceased had fallen. He demonstrated how WT had lifted the deceased over the balcony. He said that he then saw WT and GF enter the deceased’s room with the deceased’s key and look for his money, wallet and laptop. He said that they opened the deceased’s wallet and took his money. He described himself as being frightened and stepping back when WT and GF were dealing with the deceased on the balcony.[5] JF described himself as having watched WT and GF do these things without significantly contributing to any of these actions.[6]
[5]JF VARE Transcript 29.
[6]JF VARE Transcript 10.
In later conversations with neighbours, JF again graphically demonstrated WT’s actions in lifting the deceased over the balcony.
In a formal police record of interview on 12 February 2015, JF again described WT as having picked up the deceased and pushed him over the balcony, with both WT and GF hitting the deceased’s hands as he tried to cling on to the railing. He again described himself as having merely watched this take place and not contributing. He again described WT and GF performing high fives after the deceased had been pushed off the balcony. He described GF and WT getting the key to the deceased’s room and looking in there for money and a laptop and taking money from there. He said he went in ‘only a little bit’ but that he did not touch anything.[7]
[7]JF ROI Q&A 105
JF was initially treated by police as a witness, whilst WT was treated as a suspect from the outset and was taken into custody at the scene. Subsequently, after homicide detectives had viewed the various CCTV footage, all three accused were cautioned by police, interviewed and then charged with the deceased’s murder.
When WT was interviewed, he made some admissions to having planned with JF and GF to kill the deceased but said that it was JF’s idea and that JF had taken the money. WT also said that it was JF who had lifted the deceased up and pushed him over the balcony.
GF when interviewed said that all three accused had planned to kill the deceased and that WT and JF had lifted the deceased up together and forced him over the balcony whilst she had watched.
There is no direct evidence as to precisely when JF obtained the deceased’s debit card, although the Crown seeks to ask the jury to infer that it was obtained after the deceased was pushed off the balcony on 15 January 2015. The Crown alleges that JF then entered the deceased’s debit card details into his iPhone and used the debit card to make several online purchases.
When the admissibility of the debit card evidence was first argued before me on 13 October 2016, the Crown did not have a correct analysis of the timestamp data shown on the documents, with the result that it was unclear whether certain events and purchases made by JF using the deceased’s debit card details had occurred before the incident on the night of 15 January 2015. Further submissions were deferred until that was obtained. The next morning on 14 October 2016, the Crown served an updated précis prepared by Detective Tuininga setting out the proper conversion of the timestamps and describing how payment information can be added or modified in Apple accounts. The parties then concluded their oral submissions.
The précis is still pending finalisation but the parties are prepared to have me rule on the admissibility of the debit card evidence on the basis of the information contained in the précis, which is annexed to this ruling as Annexure A. In effect, once the timestamps are converted from Pacific Standard Time to Australian Eastern Daylight Time,[8] they show that the events and transactions in question occurred after the incident on the night of 15 January 2015.
[8]Australian Eastern Daylight Time or AEDT was being observed on 15 January 2015.
The debit card evidence comprises several documents, as well as evidence from the Informants, Detective Leading Senior Constable Tuininga and Sergeant Howse, to show:
(a) At 10:10 pm on 15 January 2016, JF created or modified a note on his iPhone containing a series of numbers corresponding with the card number, CVV number and expiry date of the deceased’s debit card;
(b) Between 11:50 pm on 15 January 2015 and 1:12 am on 16 January 2015, there was activity on a PayPal account in JF’s name;
(c) At 12:30 am on 16 January 2016, an email was sent to JF’s email address from PayPal confirming that a card, the last four digits of which corresponded with the deceased’s debit card number, had been added to his PayPal account;
(d) At 1:06 am on 16 January 2016, a purchase in the sum of $108.60 was made from JF’s PayPal account;
(e) Between 12:09 am on 16 January and 7:27 am on 17 January 2015, emails were sent from the Apple iTunes and App Stores to JF confirming the following purchases made using the deceased’s debit card:
(i) Two in-app purchases made on 2 January 2015 totalling $3.78;
(ii) A one year subscription to iTunes Match purchased on 15 January 2015 for $34.99; and
(iii) Two in-app purchases made on 16 January 2015 totalling $135.98.
The Apple account from which the iTunes and App Stores purchases were made was linked to JF’s name and his home address. The deceased’s Commonwealth Bank account statement that was linked to his debit card confirms the PayPal and Apple iTunes and App Stores transactions.
Among the alleged purchases are two in-app purchases from the Apple App Store on 2 January 2015 in the amount of $3.78. The Crown alleges that JF attempted to make the purchases on 2 January 2015 but was unable to complete the transactions until 16 January 2015 due to a lack of funds in his nominated funding source. The fact that the purchases were only completed and invoiced on 16 January 2015 using the deceased’s debit card, the Crown submits, may be explained by JF substituting his funding source in his Apple account with the deceased’s debit card details after the incident on the night of 15 January 2016.
The Crown also stated that police inquiries of Apple confirmed that only one card may be active at any one time for any particular person’s account. The Crown submits that this information supports the inference that JF substituted his funding source in his Apple account with the deceased’s debit card details after the incident.
Mr Gibson’s main submission on behalf of JF is that the debit card evidence is inadmissible because the Crown is effectively seeking to rely upon the evidence as post-offence incriminating conduct as defined in s 18 of the JDA 2015,[9] but has not complied with the notice requirement in s 19(1), and therefore is precluded under s 20(1)(a) from relying on the evidence as incriminating conduct.
[9]Mr Gibson also referred to the definition of ‘admission’ in the Dictionary of the Evidence Act 2008 (Vic).
Adjunct to that, he also argued in his written submissions that the debit card evidence is incapable of amounting to an implied admission of guilt of murder or of an unlawful killing. He also argued in his written submissions that the debit card usage needs to be interpreted in light of JF’s intellectual disability. These additional submissions were not advanced substantially in oral argument, with Mr Gibson focusing on his main submission once it was clarified that all of the debit card evidence occurred post-incident.
Secondly, Mr Gibson submits that the debit card evidence ought to be excluded under s 137 of the Evidence Act 2008 (Vic) because its probative value is outweighed by the danger of unfair prejudice to JF. He argues that, if the evidence is inadmissible as incriminating conduct, its probative value is low because all it is capable of showing is that JF stole from the deceased in circumstances which might indicate an insensitivity to the welfare of the deceased. He argues that a propensity to steal is not probative of a tendency to kill and that, at any rate, no notice has been given to adduce the evidence as tendency evidence.
He submits that JF will suffer unfair prejudice by being depicted as a thief to the jury.
In his written submissions, Mr Gibson made a third submission regarding the unreliability of the debit card evidence. However, that submission was predicated upon some of the evidence showing that JF had been using the deceased’s debit card well before the incident. In light of Detective Tuininga’s précis clarifying that all of the evidence in question occurred post-incident, Mr Gibson did not rely on that submission in oral argument.
In his written submissions and oral argument, Mr Gibson acknowledged that the other two co-accused, WT and GF, would seek to the adduce the debit card evidence. He submitted, however, that the debit card evidence is not, in fact, relevant to their cases because JF’s representations in his VARE, police record of interview and out-of-court statements to police officers about the co-accused’s involvement cannot be used as evidence against the other two co-accused.
The Crown submits that the debit card evidence has significant probative value. It argues that the debit card evidence, when considered together with other evidence in the special hearing, is probative of JF being a party to an agreement, arrangement or understanding to kill the deceased, by establishing that JF’s motive was to take advantage of or exploit the deceased’s property for his own purposes.
In oral submissions, the Crown was steadfast in its position that, whether or not it could amount to an implied admission of guilt, the debit card evidence was not being led as evidence of incriminating conduct. That being the case, the Crown submits that the incriminating conduct provisions in the JDA 2015 are not engaged.
The Crown submits that the probative value of the evidence is particularly significant having regard to the accounts given by JF in his VARE and record of interview of denying any role in planning or participating in the killing of the deceased and blaming the killing on his two co-accused, and his assertion that WT and GF wanted to kill the deceased in order to steal things from him and that they did steal from him after the incident.[10]
[10]Fairest VARE Q&A 37-8.
The Crown points out that the evidence in question is not the only evidence that JF was part of an agreement, arrangement or understanding to kill the deceased, but submits that it is important evidence connected with what was said and done in the CCTV footage from the train and in the apartment foyer and lift. The Crown submits that the danger of unfair prejudice of the sort averted to by Mr Gibson is low, and that there is already evidence before the jury of the alleged theft of a camera by JF. I might add that the jury has also heard evidence about JF’s connection to the theft of the deceased’s iPad in February 2014.
The Crown submits that JF has not discharged his onus under s 137 to demonstrate that the danger of unfair prejudice outweighs the probative value of the evidence.
Counsel for WT and GF each made oral submissions in favour of the admission of the evidence, stating that they would seek to lead it if the Crown did not, in order to buttress the credit of the accounts given by their respective clients in their records of interview.
Counsel for GF further submitted that the evidence is relevant, not as post-offence incriminating conduct, but as proof that JF was a party to an agreement to kill the deceased, an agreement to which GF says she was not a party.
Dealing, firstly, with the applicability of the incriminating conduct provisions in the JDA 2015 to the debit card evidence: Do ss 19(1) and 20(1) operate to render the debit card evidence inadmissible even when the Crown does not explicitly rely upon the evidence as evidence of incriminating conduct?
Section 19(1) of the JDA 2015 requires the prosecution to give notice of evidence to be relied on as evidence of incriminating conduct before the start of a trial (or, in this case, a special hearing):[11]
(1)The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence—
(a) a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and
(b) a copy of the evidence on which the prosecution intends to rely.[12]
[11]See Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16(1): ‘A special hearing is to be conducted as nearly as possible as if it were a criminal trial…’; s 16(2)(d): ‘Without limiting subsection (2), at a special hearing … the rules of evidence apply’.
[12]Jury Directions Act 2015 (Vic) s 19(1).
Section 20(1) provides that two requirements must be met before the prosecution can rely on evidence of incriminating conduct:
(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.
In Lowe v The Queen,[13] the applicant had been convicted at trial of murder and acquitted of kidnapping. The prosecution case at trial was that the applicant was a participant in a joint criminal enterprise to kidnap and kill or cause really serious injury to the deceased. The prosecution alleged that the applicant had acted to conceal the evidence and dispose of the deceased’s body post-offence, and led evidence that the applicant had used a vehicle, rented and cleaned a van, and purchased clothes and a boat for those purposes.
[13]Lowe v The Queen [2015] VSCA 327 (‘Lowe’).
Although the prosecution had initially filed a notice of incriminating conduct, it subsequently resiled from the notice. Instead, the prosecution sought to rely on the post-offence conduct as circumstantial evidence of the applicant’s continuing association with and implementation of the joint criminal enterprise, and in its closing address the prosecution did not invite the jury to conclude that the applicant’s post-offence conduct constituted incriminating conduct. The trial judge did not direct the jury on the use of the evidence.
The applicant contended on appeal that ‘where the evidence so obviously has the character of an implied admission, the Crown must be taken to be inviting the jury to draw the inference that the post-offence conduct constitutes incriminating conduct.’[14]
[14]Ibid [135].
The Court of Appeal considered the construction of the term ‘relies’ in pt 6 of the Jury Directions Act 2013 (Vic) (which is now pt 4 div 1 of the JDA 2015), and unanimously held that the legislation required explicit reliance on evidence of incriminating conduct by the Crown:
The effect of the applicant’s submission that without giving notice that it is its intention to do so, the Crown may still be held to be relying on evidence of incriminating conduct, would defeat the purpose of the provisions. Such an interpretation would run counter to the clear words of s 25 section [sic] and the pt 6 regime.
The concept of reliance is to be found throughout pt 6 of the [Jury Directions Act 2013]. In the context of this Part, the structure of which is described above, the legislative intent is clear that any reliance upon post-offence conduct as incriminating conduct must be expressed—hence the requirement for a notice. Where such explicit reliance is stated, the trial judge is obliged to give the mandatory direction in s 25, with the possible addition of the language in s 26 if requested to do so. Where there is no explicit reliance, but there is a risk that the jury will independently conclude that the accused has engaged in incriminating conduct, s 27 may be enlivened. The regime of pt 6 thus unmistakeably encompasses circumstances in which evidence of what is plainly incriminating conduct is adduced but the Crown does not seek to rely upon it as such; the obligatory direction is not then required.[15]
[15]Ibid [141]-[142] (Redlich JA and Robson AJA, Warren CJ agreeing in separate reasons).
In the case before me, the Crown has specifically eschewed reliance on the debit card evidence as incriminating conduct. Consistent with that position, no notice of incriminating conduct pursuant s 19 of the JDA 2015 has been given. Instead, the prosecution seeks to adduce the debit card evidence as circumstantial evidence going to proof of JF’s motive to enter into an agreement to kill the deceased.
Applying Lowe, in the absence of explicit reliance by the Crown on the evidence as incriminating conduct, I do not consider that ss 19(1) and 20(1) of the JDA 2015 have any operation as to the admissibility of the debit card evidence.[16] It is unnecessary to at this stage to decide whether the debit card evidence is capable of amounting to incriminating conduct as defined in s 18 of the JDA 2015.
[16]Neither party referred to Lowe in their submissions. Mr Gibson was granted leave to file further written submissions on this point when the case was brought to his attention but had no further submissions.
Mr Gibson’s second submission is that I should exclude the evidence pursuant to s 137 of the Evidence Act 2008 (Vic). Section 137 requires a weighing of the probative value of the evidence against the danger of unfair prejudice to the accused.
In IMM v The Queen,[17] the majority of the High Court held that ‘[e]vidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.’[18]
[17](2016) 330 ALR 382.
[18]Ibid [40] (French CJ, Kiefel, Bell and Keane JJ).
Unfair prejudice has been described in Dupas v The Queen[19] as ‘a real risk that the evidence will be misused by the jury in some unfair way. … Evidence is not unfairly prejudicial because it inculpates the accused.’
[19](2012) 218 A Crim R 507 [175].
In assessing of the danger of unfair prejudice, the courts have focused on whether there is an aspect about the evidence in question that leads to a real risk that the jury will be misled by the evidence, or inclined to overvalue it or treat it prejudicially, notwithstanding proper directions as to how the evidence should be treated.
The ultimate use to which evidence will be put by the jury is the critical guiding factor. In argument before me, Mr Gibson did not seriously contend that the evidence in question lacked any probative value, but instead he sought to pigeonhole the probative force of the evidence into the characterisation as either post-offence incriminating conduct or tendency evidence. He then argued that if it was neither one, nor the other, the probative value was low.
I am not persuaded that the evidence is to be characterised as Mr Gibson suggests nor am I persuaded that the probative value of the evidence is low. I have reached this conclusion especially in light of the actions of JF in remaining with the two other co-accused throughout the discussions on the train, in the foyer and lift and then entering the apartment with them, and remaining with them after the deceased was forced over the balcony. Those actions, when considered together with the debit card evidence, do not sit well with JF’s evidence that he was not an interested participant in the events of the night.
In assessing the probative value of the debit card evidence which is the subject of this ruling, I accept the Crown’s submission that the evidence has significant probative value in proof of JF’s continuing involvement and complicity in the agreement to kill the deceased.
In my view, the jury would be entitled to find on the debit card evidence that JF took the deceased’s debit card details and used it to conduct online purchases after the deceased had fallen from the balcony, and in that way, the debit card evidence is probative of JF’s motive to enter into the agreement to kill the deceased.
Further, the jury would be entitled to consider that JF’s representations made in his VARE, record of interview and to police officers that he did not take the deceased’s money and property are incongruous with the debit card evidence, since it shows him to have been especially interested in the deceased’s property. That interest arguably existed since February 2014 when JF surrendered the deceased’s iPad to police whilst being aware that it had been stolen from the deceased.
The debit card evidence is also relevant to buttress the credibility of WT and GF. In their respective records of interview, WT and GF stated that only JF had taken or attempted to take money and items from the deceased’s room. The jury would be entitled to consider that the debit card evidence strengthens their respective versions of events.
The evidence is not being led by the Crown for a tendency purpose and I will be required to give a protective direction against the jury using it in that manner.
I will also be obliged to consider whether to give a protective direction under s 23 of the JDA 2015 against the jury using it as evidence of incriminating conduct.
Counsel for JF will also be at liberty to cross-examine the relevant witnesses as to the limits on what the evidence actually reveals.
In my view, whilst there is a slight risk that the jury may overvalue the evidence by treating it as showing that JF has criminal tendencies, this risk can be ameliorated with appropriate directions.
As discussed above, the alleged unreliability of the evidence was not an argument that was pursued in detail by counsel for JF, and in light of IMM v The Queen,[20] I am not persuaded of that submission.
[20](2016) 330 ALR 382.
In summary, I am not satisfied that JF has discharged his onus to demonstrate that the probative value of the debit card evidence is outweighed by the danger of unfair prejudice.
A final important factor in favour of the admission of the debit card evidence is that counsel for WT and GF would seek to adduce the evidence for the purposes discussed above. In a joint trial (or, in this case, special hearing), courts are protective of the right of a co-accused to adduce evidence that tends to rebut his or her guilt, even when the evidence is adverse to another co-accused in the trial or hearing.[21] The authorities in Victoria favour the view that there is a common law discretion to exclude evidence favourable to one accused but unfavourable to another, but the discretion is to be sparingly exercised.[22]
[21]R v Lowery & King (No 3) [1972] VR 939.
[22]See R v Hartwick, Hartwick and Clayton (2005) 14 VR 125; R v Darrington & McGauley [1980] VR 353; R v Su & Ors (1997) 1 VR 1.
In R v Hartwick, Hartwick and Clayton,[23] the Court of Appeal said:
Relevant evidence in disproof of the guilt of more than one jointly accused is not ordinarily to be excluded by reason only that it tends to prove that the other jointly accused has a disposition or propensity, or is the sort of person likely to commit the crime charged. It may perhaps be excluded in the exercise of discretion. But the freedom of an accused to meet the charge against him is not lightly to be restricted in that fashion. It is usually better dealt with by appropriate directions; just as the judge did.[24]
[23](2005) 14 VR 125.
[24]Ibid 157-8 [79] (citations omitted).
Since the inception of the Evidence Act 2008 (Vic), the Court of Appeal has applied a similar approach. In Green v The Queen,[25] the Court said:
… [A] trial judge should be slow to exclude evidence sought to be adduced by an accused person unless it is clear that the evidence does not satisfy the definition of relevance contained in section 55.[26]
[25][2015] VSCA 279.
[26]Ibid [34].
Applying that approach, I am not persuaded that WT and GF should be shut out from being able to rely on the debit card evidence against JF, which is also plainly relevant to buttress their own credit, allowing their actions and explanations to be see in a more favourable light than if the evidence were excluded.
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