Director of Public Prosecutions v Williams
[2005] VSC 510
•3 October 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1478 of 2004
| DPP |
| v |
| WILLIAMS |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2005 | |
DATE OF RULING: | 3 October 2005 | |
CASE MAY BE CITED AS: | R v Williams | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 510 | |
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Horgan SC | K Van Denakker, OPP |
| For the Accused | Mr C Hewotis QC | Ms Z Garde-Wilson |
HER HONOUR:
In relation to rulings, I heard arguments in relation to the admissibility of evidence on a number of topics. I will rule on them in the same order in which they were presented.
First, the defence objects to what was contained in paragraph 3 of the Crown opening, which reads:
"Victor Brincat and Thomas Hentschel were close associates of the accused as at 2003. Brincat was the de facto partner of the accused's sister‑in‑law. He had an extensive violent criminal history. Hentschel had known the accused since the late 90s. He, too, had an extensive criminal history, mainly for dishonesty offences".
Originally, the defence, in an outline of submissions dated 27 September 2005, objected to the evidence being led on the basis of R v Gallagher[1], that is, the impeaching of your own witness.
[1](1986) VR
The defence correctly, did not persist with this line of objection, and argued instead that the Crown sought admission of this material for the purpose of placing before the jury the issue of propensity or, at the least, the issue of the character of the accused man. They argued that the propensity issue is opened by the fact that the accused man is an associate of the accomplices and because they are of bad character, a jury will infer that the accused man is equally of bad character.
This is, of course, an impermissible line of reasoning and one that the jury will be instructed is an impermissible line of reasoning. The Crown say in reply that they seek to lead this evidence as part of the circumstantial case to the extent that the case is partly circumstantial, to the effect that when the accused man seeks to engage persons to carry out a criminal act such as murder, he will, of course, seek the services of persons who have some sort of criminal history or criminal proclivity such as Mr Brincat and Mr Hentschel.
The Crown intend to ask the witness Hentschel if the accused man was aware of his criminal past, to which, I was informed on Thursday, the answer will be that he apparently was aware of it. I had further information relayed to me which indicated that records show Mr Williams and Mr Brincat were incarcerated in the same prison unit in late 1999 and Hentschel, Williams and Brincat were together in the same unit at Port Phillip in late 2001.
The Crown indicate they do not intend to seek to lead that material, but refer to it to demonstrate the position as to Mr Williams' knowledge of Mr Hentschel's and Mr Brincat's prior history.
The witness, Thomas Hentschel, is going to give evidence of his close association with the accused man and the Crown intend to call evidence that indicates the close association of Victor Brincat with the accused man. The witness, Thomas Hentschel, will also give evidence that he and Victor Brincat committed the murder of Michael Marshall at the request of the accused man. If the jury were going to be involved in an impermissible line of reasoning that evidence alone would be sufficient for them to reflect upon the bad character of the accused. As indicated, they will not be permitted to do this.
The evidence is, in my view, admissible. It is relevant to the issue before the jury and I fail to see that it carries with it any significant prejudice. The line of reasoning that a jury would have to use for there to be any prejudice is not one any counsel will be suggesting is appropriate and one that I will be telling them is totally impermissible is in respect of the evidence given by Hentschel.
The next aspect of the evidence objected to is paragraph 18 of the Crown opening which reads, "On 26 October 2003 the accused proposed making arrangements for the legal representation of both Hentschel and Brincat." The defence argued that this evidence could not constitute a consciousness of guilt on the part of accused man and I agree totally that it could not. However, the Crown do not seek to lead the evidence as consciousness of guilt. They seek to lead it, as stated in their written submissions as, "The calls are relevant insofar as they show the very close relationship between the accused and Brincat and Hentschel in the context of the murder of Michael Marshall. The calls are parts of circumstantial case".
The defence argued that it is unnecessary because the evidence is equivocal in that they say it is not in issue in this trial, that:
(1) Brincat was an associate of the accused;
(2) Brincat's de facto partner was the accused's sister‑in‑law;
(3) Hentschel was an associate of the accused; and
(4) Hentschel was a friend of the accused's wife.
Surveillance evidence demonstrates that Hentschel visited Roberta Williams numerous times when her husband was absent from the family home. There is surveillance evidence showing Hentschel assisting over a two day period with the Williams moving house.
The Crown submit that the evidence demonstrates the closeness of the relationship at the time of the murder and Mr Williams' obvious concern and, the Crown say, a desire to be in control of what was happening in respect of these two men and their legal situation. That is a matter for the jury. There may be other reasons such as purely friendship for the making of these calls, but in terms of a relationship evidence it is clearly admissible. I do not accept that there is any evidence which is capable of demonstrating that the accused man was acting as the agent of either Mr Brincat or Mr Hentschel and therefore the conversations are not privileged and are admissible.
In relation not next point, paragraph 19 of the Crown opening, in that opening they state, "The Crown will lead evidence that on 27 May 2005 the accused exhorted his wife Roberta Williams in a telephone call to endeavour to locate Hentschel as evidence of a consciousness of guilt." As indicated, the Crown said that they wished to lead this as a consciousness of guilt. The accused man is charged with the murder of three other persons and in respect of each of those matters the major evidence against him is that of the witness Hentschel. The Crown, upon reflection, agree they were not able to nominate which of the murders the consciousness of guilt could relate to and accordingly are no longer seeking to include this as part of the material. They have submitted that this may change during the trial and they do not wish to be stopped from revisiting that aspect. As I have indicated, no one is ever prevented from putting arguments if new material emerges that makes material admissible. I am of the view that the material as presented would not be capable of constituting consciousness of guilt regardless of the fact of consciousness of guilt of what matter. That may well be an argument for another day.
Paragraph 17 was the next matter raised, which is listed in the Crown opening in this manner:
“On the 26 October 2003 the accused informed his father, George Williams, by telephone that Brincat and Hentschel had been arrested. The accused did not need to tell his father for what crimes they had been arrested, he clearly knew. It follows that the accused knew that would know".
In some aspects it is difficult to determine precisely what the Crown are saying this constitutes evidence of. Is it a consciousness of guilt of the accused man? In argument the Crown said that this conversation demonstrated the accused's knowledge in that he did not have to tell his father what Brincat and Hentschel had been arrested for as his father already knew and it demonstrated that he knew that his father already knew.
In their submissions, the defence say that this would make George Williams an unindicted co‑conspirator. The jury would be asked to determine what was in the minds of both Carl and George Williams. The series of calls clearly indicates that the arrest of Hentschel and Brincat had been a media news item and that persons had already rung the accused man with information, including his wife, solicitor for Mr Hentschel, and Mr Brincat and others with information that this was on the news. The accused man had spoken to others, as I indicated, in some calls he indicated that Mr Hentschel and Mr Brincat had been, using his words, pinched for a murder or a shooting, but in at least one other call prior to the discussion with his father, the matter is discussed with a man by the name of Lessor and in that call the same expression is used, "pinched". There is no specific reference to the nature of the offence for which they had been arrested.
Mr Horgan submitted it was powerful evidence of the knowledge of Carl Williams. I do not agree. Mr Williams had spoken to Hentschel's lawyer by that stage and had received information relating to the crime. He had received other calls from persons telling him about the matter or seeking information from him and when he spoke to his father it was at least an hour and a half after that. It is also clear in that call that his father had received information about the matter from someone else prior to speaking to the accused man. The evidence, in my view, is equivocal at best and could not be used as consciousness of guilt, and I see no other purpose for which it could be admitted.
In respect of the matter of witnesses to be called, the Crown are entitled to call witnesses to prove their case and the elements of it. The defence are equally able to admit or not dispute various elemental facts relating to the charge. The Crown desire to place before the jury the factual scenario of the murder. They are entitled to do so. It is not prejudicial for the Crown to prove their case by the calling of witnesses and the jury are entitled to be made aware of the gravamen of the case. The defence do not elect which witnesses the Crown may call to prove their case. While they may be entitled to submit that witnesses are not giving admissible evidence or hearsay or similar, they cannot submit that they only want the most innocuous of the witnesses called in an attempt to minimize the seriousness of the circumstances of the killing. The prejudice that the defence say flows to their client is that the jury will hear that the killing involved was quite horrific and clearly an execution in the presence of the deceased's child. They submit that this jury will then feel a need to punish someone for that killing and it will adversely affect their client. Juries deal with appalling cases of murder and bring in verdicts appropriate to the evidence placed before them. They have done that for many years. Here there are two persons who admitted killing the deceased and the only issue for the jury is whether the accused man is also guilty of the offence. Persons have been punished for this murder and there is no risk, in my view, of a jury having to find someone else to punish.
In relation to the photographs, I believe they were dealt with in our discussions. I indicated that the body photo should be permitted but that only one of the photos showing the blood in the gutter should be permitted and not the one that shows the most of it, and the others I understood counsel to have resolved during our discussions.
In relation to the issue of what Mr Hentschel can say, that I thought was also resolved during the argument. He is not to volunteer anything about the other murders unless he has permission from me. That would be subject to argument.
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