Earl Jones v The Queen
[2020] VSCA 160
•17 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0145
| EARL JONES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and KYROU JJA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 16 September 2019 and 3 June 2020 |
| DATE OF JUDGMENT: | 17 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 160 |
| JUDGMENT APPEALED FROM: | R v Jones (Unreported, 21 February 2018, Supreme Court of Victoria, Justice Hollingworth (Conviction)) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Stabbing – Whether the murder conviction is unreasonable or cannot be supported having regard to the evidence – Consideration of intention to cause really serious injury where knife wounds to thigh – Whether there has been a substantial miscarriage of justice as a result of the admission of CCTV footage – Failure of counsel to object to admission of evidence – Application for leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
16 September 2019 | ||
For the Applicant | Mr P Chadwick QC | Ann Valos Criminal Law |
For the Respondent | Mr B Kissane QC with Ms A Ellis | Mr J Cain, Solicitor for Public Prosecutions |
3 June 2020 | ||
| For the Applicant | Mr P Smallwood | Slades & Parsons |
| For the Respondent | Ms A Ellis | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
KYROU JA
KIDD AJA:
On 21 February 2018, the applicant was convicted by a jury of one charge of murder. By their verdict, the jury rejected the lesser alternative charge of manslaughter. On 29 June 2018, the applicant was sentenced to 20 years’ imprisonment, with a non-parole period of 15 years for that offence of murder.
The applicant now seeks leave to appeal against his murder conviction.
Procedural history
This application was first listed before this Court for hearing on 16 September 2019. At that time, the applicant was represented by senior counsel, who had prepared the written case of 25 July 2018. At that time, the applicant pursued a single ground of appeal, namely, that the murder conviction was not reasonable or not supported by the evidence. During this hearing, the applicant asked to speak to the Court directly. The applicant raised further matters with the Court that indicated that he may have wished to pursue other grounds of appeal.
As such, the Court adjourned the hearing to allow the applicant to obtain further legal advice and gave him leave to file a supplementary written case. The applicant having engaged new counsel, filed a supplementary written case on 17 January 2020. This supplementary written case put forward a second ground of appeal, namely, that the admission of CCTV evidence resulted in a substantial miscarriage of justice.
The application was then listed before the same Bench for hearing on 3 June 2020. Different counsel appeared for the applicant at this hearing.
Circumstances of the offending
The applicant and the victim, Stephen Lowry, had known each other for several months, being acquainted because they were both living in boarding houses in St Kilda.
On 1 August 2016, the applicant attended the Balaclava Hotel, St Kilda East around 2:20 am, playing the pokies and socialising with a woman. At around 3:16 am, the applicant was seen on CCTV footage leaving the hotel.
After leaving the Balaclava Hotel, the applicant made his way to the Regal Boarding House in St Kilda (‘the Regal’), where the victim was living. Around 4:46 am, the applicant jumped over the locked front gate to the Regal. This was captured on CCTV footage from the Regal. The applicant was wearing the same clothes and carrying the same backpack that he had been carrying earlier in the night at the Balaclava Hotel.
Shortly after jumping the fence, the applicant approached the entry door to the foyer of the Regal. Keith Baker, who lived at the Regal and was an acquaintance of the applicant’s, was in the foyer at the time the applicant approached. Baker opened the foyer door and let the applicant inside the Regal around 4:46 am. This was captured on CCTV footage.
At 4:47 am, the applicant is seen on CCTV footage entering the victim’s room. That room was very cluttered with furniture and other objects. Seconds later, Baker briefly entered the victim’s room to ask for a cigarette. Baker gave evidence that the victim told him that he needed to speak with the applicant. The applicant told Baker that he would bring him a cigarette shortly. Baker’s evidence was that he did not observe any sign of animosity between the applicant and the victim, before he left the victim’s room.
After Baker left, while the applicant and the victim were alone in the room, the applicant assaulted the victim.
At some point during the time they were alone, the applicant picked up one of the many knives that the victim had in his room and stabbed the victim in his upper left thigh. The medical evidence was that the victim had sustained two stab wounds, inflicted through the same entry point in the upper left thigh. One wound penetrated 7 cm into the victim’s thigh, cutting through the victim’s femoral artery. The other stab wound was 12 cm deep and lacerated the victim’s thigh muscles.
The forensic pathologist, who performed the autopsy of the victim, gave evidence that the two knife wounds could have been inflicted, with moderate force, either by two distinct stabbing actions or by the knife going in once and being pulled back out close to the skin and then plunged back into the victim’s thigh at a different angle. The victim’s death was the result of the stab wound which cut through the femoral artery, either because of exsanguination (severe blood loss) or the introduction of air bubbles through the lacerated femoral vein which could have caused an air embolism resulting in a stroke or instantaneous death.
The physical altercation between the applicant and the victim in the victim’s room was not witnessed by anyone, nor was it captured by CCTV. During the altercation, no commotion or noise from the victim’s room was heard by any witnesses. There is no evidence of what happened in the immediate lead up to the physical altercation or how long the altercation lasted.
At 5:07 am, the applicant exited the victim’s room, carrying his jacket and backpack. The applicant took the knife used to stab the victim with him. The applicant proceeded downstairs to the foyer, exited the building, and then proceeded through the front gate, which he had jumped over earlier that morning. Within a minute of leaving the victim’s room, the applicant had left the Regal. This was all captured on various CCTV cameras at the Regal.
About five minutes after leaving the Regal, at 5:12 am, the applicant threw the knife over the fence of a nearby property. This was captured on CCTV cameras at the Coffee Place Backpackers, St Kilda. Police later recovered the knife, which had a 20 cm long blade. A DNA analysis showed there was a mixture of DNA on the handle of the knife, consistent with at least four people handling the knife. Both the applicant’s and the victim’s DNA could not be excluded as being on the handle. There was only a single source of DNA determined to be on the knife’s blade, being the victim’s DNA.
The applicant left the St Kilda area in a taxi at around 5:18 am, after disposing of the knife. This was captured on a CCTV camera inside the taxi.
At some point before police arrived at the Regal, Baker (who was nearby) heard a low groaning sound and someone repeatedly calling his name. Baker rang the victim’s phone. Baker’s evidence was that he could not be certain whose voice it was, but the person who answered the phone said ‘Steph’s [the victim’s] fucked and you’re next.’ The prosecution case was that it was the applicant who said these words to Baker.
Baker attended at the victim’s room at 5:12 am. CCTV footage shows Baker standing at the door knocking. Baker’s evidence was that he first checked that the victim was alone before entering, with the victim letting him inside. At 5:13 am, Baker briefly entered the room and saw the victim sitting next to the door covered in blood. Baker’s evidence was that the victim was holding a machete in his hand.[1] Baker observed blood in the room. Baker asked the victim what happened, and the victim said ‘Earl [the applicant] got in and got me.’
[1]Upon police search of the victim’s room, no machete was located. It was common ground at trial that Baker must have been wrong about this.
At 5:13 am, CCTV footage shows Baker step outside the victim’s room and make a phone call to 000. After making this call, Baker re-entered the victim’s room.
Police and paramedics arrived at the victim’s room around 5:25 am, but were unable to resuscitate him.
In addition to the two stab wounds, an autopsy found almost two dozen bruises, abrasions and lacerations on different parts of the victim’s body. Some of the more significant injuries were to the top and back of the victim’s head. The forensic pathologist accepted that some of the injuries (particularly the ones to the victim’s head) may have been caused by the victim falling down or knocking his body in his very cluttered room. The effect of the evidence of the forensic pathologist was that a fall could not account for all of the injuries, which had to have been inflicted by multiple applications of force. Nevertheless, the timing of each of these injuries could not be positively established.
The autopsy also found that, prior to his death, the victim had consumed morphine, methylamphetamine and methadone.
At trial, by agreement, an admission by the applicant was tendered before the jury that he and the victim were involved in a dispute concerning property in the lead up to 1 August 2016.
The two ultimate facts in issue in the trial were identity (the applicant never conceded that he was the perpetrator), and, if the perpetrator was the applicant, whether he had an intention to cause the victim really serious injury (the prosecution never contended that the applicant intended to kill).
Ground 1
The applicant’s case in relation ground 1 is that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In particular, it is contended that:
(a) upon the whole of the evidence adduced by the Crown, it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of the charge of murder; and
(b) upon the whole of the evidence adduced by the Crown, the proper verdict was that the applicant was guilty of manslaughter pursuant to section 421(1) of the Crimes Act 1958. The alternative charge of manslaughter was left to the jury by the learned trial judge.
Parties’ arguments on Ground 1
This ground was directed to proof of the fault element only. The applicant submitted that the evidence, as a whole, did not establish that the perpetrator of the fatal assault on the victim acted with an intention to cause really serious injury.
In a circumstantial case such as this, counsel for the applicant submitted, this Court must weigh all of the circumstances in deciding whether it was open to the jury to draw the inference of murderous intention to the criminal standard.[2]
[2]Fennell v The Queen (2019) 93 ALJR 1219, 1233–4 [81]–[82]; Coughlan v The Queen [2020] HCA 15, [55].
It was the applicant’s case on appeal that the evidence of the injuries, including their nature and location on the victim’s body, fell short of demonstrating an intention to cause really serious injury. Counsel for the applicant contended that, while there may be no strict requirement to prove an intention to cause life threatening injury, what is required must rise very close to this level. Counsel also relied on evidence of the applicant’s demeanour before the offending (including the CCTV footage from the Balaclava Hotel and the Regal and Baker’s account of the applicant and the victim in the victim’s room), as showing a lack of animus towards the victim, and the absence of a motive to inflict really serious injury.
Counsel for the applicant further submitted that, even when taken together with Baker’s account of a phone call he made to the victim’s phone after the offending, and its contents (‘Steph’s fucked and you’re next’), the injuries were not enough to demonstrate an intention to cause really serious injury. However, the applicant disputes that this phone call was made.
Counsel for the respondent argued that, in considering the evidence as a whole, it was open to the jury to infer that the applicant intended to inflict a really serious injury.
Counsel for the respondent submitted that the knife wounds spoke strongly of that intention. The wounds were made by multiple motions of the knife, with it being withdrawn and re-inserted to some degree. The wounds were deliberate and deep, with the forensic evidence confirming that a moderate degree of force was used. The knife used was long and appeared to be sharp. Counsel for the respondent also contended that these knife wounds must be considered in the context of the constellation of other injuries inflicted, including the likely multiple applications of force to the victim’s head and mouth. Finally, the comment made to Baker on the phone that ‘Steph’s fucked’ was said to be demonstrative of murderous intention, especially when viewed against the injuries the victim sustained.
Analysis of Ground 1
In resolving the complaint that a verdict is unreasonable, this Court must make its own independent assessment as to whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.[3] This Court must determine whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant. Put another way, it must determine whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt.[4]
[3]M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400, 406 [14]. See more recently Conolly (a pseudonym) v The Queen [2019] VSCA 125, [7].
[4] Libke v The Queen (2007) 230 CLR 559, 596–7 [113]–[115].
The question whether the evidence permits an inference to be drawn that the accused intended to cause ‘really serious injury’ is a quintessential jury question. The law does not define the words ‘really serious injury’. Nor did the authorities define the traditional expression of ‘grievous bodily harm’, which was replaced by the term ‘really serious injury’ in Victoria.[5] It has been said that it would be unwise to attempt a more elaborate definition.[6] The law says that while some injuries are manifestly too slight and some injuries are clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view.[7]
[5]Meyers v The Queen (1997) 71 ALJR 1488, 1489 [n 1]. We note that most of the cases dealing with this point are cases involving the older ‘grievous bodily harm’ terminology.
[6]R v Rhodes (1984) 14 A Crim R 124, 128 (albeit in the context of the phrase ‘grievous bodily harm’).
[7]R v Rhodes (1984) 14 A Crim R 124, 128.
The act of an accused may provide the most convincing or cogent evidence of intention. In other words, an intention to cause really serious injury might be inferred from the nature of the act which is done, especially where the immediate consequence of the act is obvious.[8] An inference of an intent to cause really serious injury might more readily be drawn where a weapon is used.[9]
[8]See R v Stokes & Anor (1990) 51 A Crim R 25, 30; R v Alif & Ors (2012) 274 FLR 1, 13 [48] (and the authorities cited in this case).
[9]Baker v The Queen [2010] VSCA 226, [47].
There is no requirement that the harm intended be life-threatening harm.[10] An intention to cause someone really serious, but non-fatal, harm is sufficient. Nor is there any added requirement that the bodily harm be likely to endanger life, or that the accused have some knowledge of this likelihood.[11] The fact that the intended harm would, in most cases, be unlikely to kill is no impediment to a conviction for murder.[12]
[10]R v Cunningham [1982] AC 566; Sweet & Maxwell, Archbold: Criminal Pleading, Evidence and Practice 2020, (at Ch 19, 2195 [18]).
[11]This fault element for the offence of murder under the common law can be contrasted with some of the code jurisdictions where there are such requirements. For example, Criminal Code (WA), s 279(1)(b); Criminal Code (Tas), s 157(1)(b). For a discussion of the contrasting common law and code positions, see Bronitt & McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017), 544–8 [9.120].
[12]R v Cunningham [1982] AC 566, 582-3.
This case was a circumstantial case. As such, all of the circumstances established by the evidence were to be considered and weighed in deciding whether an inference of intention to cause really serious injury was reasonably open. This is how the jury had to approach the task and it is how we must also consider the evidence.[13]
[13]R v Baden-Clay (2016) 258 CLR 308, 324 [47]; Baker v The Queen [2010] VSCA 226, [13].
In this case, the applicant used a substantial knife to inflict the harm.[14] The blade of the knife was some 20 cm. It was a dangerous and menacing weapon obviously capable of inflicting traumatic and significant injury.
[14]It was clearly open to the jury to find that the knife recovered by police at the nearby property was the knife used in the attack. The CCTV footage of the Coffee Palace Backpackers captured the applicant throwing something over the fence onto this property after he decamped from the Regal. There was further support for this to be found in the DNA evidence, summarised at [16] above.
The depth and number of wound tracks offers highly persuasive support for murderous intent. This was a penetrative and deep stabbing, applied with a moderate degree of force. There were two quite distinct stabbing motions in different directions. The first stab was followed by a partial withdrawal or total withdrawal and re-stabbing through the same entry wound. One wound track was some 7 cm in length and the other 12 cm. Overall, the applicant engaged in a severe and violent act, and the number of actions showed a level of resolve on his part.
In our opinion, once it is accepted that the applicant deliberately stabbed the victim in this manner, it was well open to the jury to conclude from those acts alone that the applicant thereby intended to cause really serious injury. That is so even if it is accepted that he never contemplated that he would sever the femoral artery.
It is true that the stabbing was not directed at the most vulnerable parts of the body (such as the head, neck or torso), and the wounds were not of a type of injury where it could be said that death would be expected or even likely. The forensic pathologist gave evidence that this is the first time in her 10 years as a forensic pathologist that she had dealt with a victim who had died from the severing of the femoral artery, and that the Coroner’s office deals with about one a year. It may be accepted that the intended harm was not obviously life threatening. At the risk of repeating what we have already said above, these points, which were made by the applicant before the jury, were no bar to proof of an intention to cause really serious injury.
In addition to the stab wounds, the victim had two dozen bruises, abrasions and lacerations on different parts of his body, including quite significant ones to the back of his head and to his mouth area. Even accepting that some of the injuries (particularly to the victim’s head) may have been caused by the victim falling and knocking his body against furniture and then on the floor (or an object on the floor), and that some may have pre-dated the altercation with the applicant, it remained open to the jury to conclude that some of these injuries were inflicted by the applicant.
The point that we would make is that the other injuries (alongside the two track wounds) reinforce that it was open to the jury to accept that the applicant inflicted multiple applications of force on the victim. This showed that the applicant acted, to some degree, with a sustained purpose to harm the victim, even if the altercation was of a relatively short duration.
In addition, in our opinion the words ‘Steph's fucked and you’re next’, uttered by the applicant in the phone call with Baker after the altercation, suggested that the applicant understood that the victim had suffered a grave injury, and that he was neither concerned nor alarmed at that result. This offered some additional support for the inference that the applicant had intended to cause really serious injury.
At trial, the applicant disputed Baker’s evidence about the content of the call but this did not preclude the jury from accepting it. It was said that Baker was a flawed and damaged witness having regard to, among other things, the inconsistencies between Baker’s evidence and the CCTV footage.[15] As we discuss under ground 2 below,[16] the inconsistencies relied upon by the applicant were not, in our opinion, of great moment. The jury would have been entitled to see them as peripheral and inconsequential, as we do. By contrast, Baker’s evidence, in a number of critical aspects, was supported by the CCTV footage, including his evidence that he left the applicant alone with the victim in the victim’s room immediately prior to the altercation. In our view, it was well open to the jury to act upon Baker’s evidence generally, including his account of what was said in the phone call. In any event, proof of the fault element — and thus the conviction — did not depend upon the testimony of Baker about the phone call. The knife wounds themselves were sufficient to support the inference of murderous intent. For all these reasons, the criticisms of the quality of Baker’s evidence certainly do not cause us to consider that the jury must have entertained a reasonable doubt about the guilt of the applicant. They do not cause us to entertain such a doubt.
[15]See n 20 below.
[16]In particular, see [52] to [62] below.
Counsel for the applicant also emphasised at the hearing of this appeal a number of points which he said should have raised a reasonable doubt as to the applicant’s state of mind, namely lack of animus, absence of rational motive to inflict really serious injury, the applicant’s calm demeanour leading up to the altercation, and the relative short duration of the altercation. Counsel accepted that this ground of appeal will fail if an inference of murderous intent could be drawn from the injuries, in and of themselves. That is what we have found. It follows that none of these points, whether alone or in combination, compelled an acquittal.
Finally, for completeness, we note there was no evidence concerning the altercation which positively raised the hypothesis that the applicant may have intended to cause harm which was less than the deep and penetrating knife wounds actually inflicted, or that his capacity to form the intention to cause really serious injury was in some way impaired. Nor did the defence advance any such thesis in argument at trial. This Court must not speculate about any such scenario.[17]
[17]R v Baden-Clay (2016) 258 CLR 308.
In our opinion, the applicant has failed to establish that it was not open to the jury, acting reasonably, to be satisfied beyond reasonable doubt he was guilty. Having made our own independent assessment of the evidence — both as to quality and sufficiency — there is no reasonable doubt as to the applicant’s guilt.
Ground 2
The applicant’s case in relation to ground 2 is that a substantial miscarriage of justice arose from the admission of the CCTV footage, in circumstances where:
(c) the probative value of the footage (and the timestamps attached to it) was outweighed[18] by the danger that it was misleading or confusing (Evidence Act 2008, s 135);
[18]The test in s 135 of the Evidence Act 2008 is actually ‘substantially outweighed’.
(d) material inconsistencies and apparent impossibilities arising from the footage, and their significance, were not adequately made clear to the jury;
(e) those inconsistencies and apparent impossibilities revealed the footage (and timestamps) to be unreliable;
(f) the footage assumed some prominence in the prosecution’s case and was relied upon by the prosecution to buttress the evidence of Baker (a witness whose reliability was in issue); and
(g) judicial directions did not cure the prejudice that had arisen.
Analysis of Ground 2
It is convenient to consider the arguments in relation to this ground, as part of our analysis.
In our view, there is no merit to the complaint under ground 2.
It became clear from the applicant’s supplementary written case that the complaint under this ground was only directed to the CCTV footage taken at the Regal. CCTV footage from the Regal was tendered in the trial and played to the jury.
This footage was relied upon by the prosecution as going to the issue of identity. It was said to be broadly consistent with the description of events surrounding the offending given by Baker, including the applicant’s movements. In particular, the CCTV footage confirmed Baker’s evidence about the applicant being present in the room immediately before the time the prosecution alleged the offending occurred. This consistency could resolve for the jury any reservations they may have had about the reliability of Baker’s account.
The CCTV footage was plainly relevant. No issue is taken with relevance.
For the purposes of the hearing of the appeal, the Court watched the CCTV footage and prepared a chronology of the movements captured by the Regal CCTV cameras together with the corresponding timestamps. The tendered footage covered a period of time from about 4:39 am until 5:27 am and depicted a number of different areas of the Regal, both external and internal. The Regal’s CCTV footage system was motion-activated, which meant footage ceased being captured when there was no movement. Running timestamps were imbedded with the running footage. Counsel for the applicant on the appeal accepted that the observations and the timestamps in the Court’s chronology were accurate, which included:
·At 4:42[19] the two corridor cameras capture Baker walking along the corridor and entering a room, which at trial was accepted to be the bathroom. He exits the bathroom at 4:43.
[19]All references to timing on the CCTV footage below in our analysis are references to times in the morning (i.e. before midday on 1 August 2016).
·The applicant jumping over the entrance gate to the Regal is captured at 4:46:44.
·A few seconds later at 4:46:48, the external and internal foyer cameras capture Baker opening the foyer door and letting the applicant into the building.
·Both corridor cameras then show the applicant walk into the corridor, open the victim’s door and enter that room by 4:47:05.
·Both cameras capture Baker walking into the victim’s room some 20 seconds later at 4:47:27.
·Twenty seconds later again, at 4:47:48, both corridor cameras show Baker leaving the victim’s room. (This resulted in the applicant being alone with the victim in the victim’s room).
·Both corridor cameras record the applicant exiting the victim’s room at 5:07:09, before he is seen quickly heading downstairs.
·Over the next 30 seconds, the applicant is recorded on the internal and external foyer cameras exiting the Regal building (5:07:26) and then on the external gate camera leaving the property altogether through the gate (5:07:38).
·Some 5 minutes later, from 5:12 to 5:13, Baker is captured on both corridor cameras outside the victim’s door, partially entering. Seconds later, Baker is captured by both corridor cameras apparently making a phone call (which turned out to be the ‘000’ call).
·At 5:25, the two corridor cameras capture the emergency services workers arriving in the corridor and entering the victim’s room.
We would make the following observations about this evidence:
·The footage was clear, and the images captured were easy to follow.
·The timestamps on the footage taken from each of the cameras were logical and sequential.
·The movements of the applicant and Baker at the Regal which are captured by CCTV footage are coherent and fit together, in time and place.
·Their movements in the foyer and corridor are captured by two CCTV cameras, located in different positions. Where an event or movement is captured by two cameras, these cameras show a mirror image of the same events. Further, the timestamps on the different cameras capturing the same events are the same.
·Specifically, the critical movements of Baker and the applicant along the corridor, and entering and exiting the victim’s room, are captured by two cameras and bear identical timestamps.
·A detective gave evidence at the trial that he had checked the timestamps of the Regal CCTV footage, and they were accurate. This was unchallenged at the trial.
There were no apparent inconsistencies in timing, and there was nothing inherently unreliable, confusing or misleading about the CCTV footage.
In support of his contention that the CCTV footage was unreliable or confusing, the applicant relied, by way of example, on two specific purported inconsistencies in timing.
The applicant asserted that footage from the Regal showed Baker to be in two different places at 4:47, namely in the bathroom and entering the victim’s room.
The complaint conflates the timing announced by the prosecutor when playing the CCTV footage to Baker in evidence in chief with the actual timestamps on the CCTV footage. When playing some CCTV footage of Baker in the corridor (prior to the arrival of the applicant at the Regal and prior to the altercation) the prosecutor mistakenly made reference to the fact that the timestamp on the footage was 4:47, when the timestamp recorded this event at 4:42. The prosecutor later informed the trial judge of the error and an amended transcript, which recorded the corrected timing (4:42), was later provided to the jury. The error was not repeated in the final address of the prosecutor.
In any event, the CCTV footage and corresponding timestamps spoke for themselves. When the footage from each camera is analysed, Baker is never seen in two places at the one time:
·at 4:42, Baker is captured on both corridor cameras (from opposite angles) entering and exiting a bathroom; and
·at 4:47, the applicant is captured on both corridor cameras entering the victim’s room, followed 20 seconds later by Baker. Twenty seconds later again, still at 4:47, Baker is captured exiting the victim’s room.
The footage does not reveal any inconsistency or impossibility in this respect.
During the hearing on 16 September 2019, the applicant also raised with the Court that Baker had identified the applicant on CCTV footage taken from the internal corridor of the Regal at 5:25:27, when footage taken from a taxi showed him leaving the area at 5:18.
There is no merit in this complaint. Baker did not identify the applicant at this time. We have viewed the corridor CCTV footage, and the applicant cannot be seen at 5:25:27. At this time, the corridor cameras depict that the police and ambulance officers had arrived. The applicant had by this time been filmed leaving the premises of the Regal — his departure was captured, clearly, at 5:07. Counsel for the applicant on the appeal accepted these times were accurate. It was also never part of the applicant’s case at trial that he was captured on camera at the Regal at 5:25. Again, there is no inconsistency or impossibility apparent in the CCTV footage.
In our opinion, the Regal CCTV footage was highly probative evidence of the fact that the applicant had been the only person in the room with the victim at the time the victim sustained the fatal stab wound. It confirmed Baker’s evidence. It cogently proved the applicant was the perpetrator. We detect nothing which is either confusing or misleading about the CCTV footage. There was nothing about it which raised a risk that the jury might misuse the evidence or give it greater weight than it deserved. In our opinion, had the defence at trial sought to exclude any of the CCTV footage under any section of the Evidence Act 2008, any such application would inevitably have failed. That is a complete answer to the complaint.
There is, however, another fundamental problem with this ground, which also necessitates its rejection.
At trial, the CCTV footage was admitted and led before the jury without objection. The defence did not seek to exclude the CCTV footage under any of the exclusionary provisions in the Evidence Act 2008.
In our view, this was not a case of a mere failure to object. The defence elected not to object to the admission of the CCTV footage.
This is explained by the fact that there was no legitimate basis to challenge the admissibility of this evidence. Counsel for the applicant at trial explicitly conceded the relevance of the Regal CCTV footage. This was a considered decision not to object and was not an oversight.
The defence also appeared to make a deliberate decision not to object for apparent forensic gain — to use the CCTV footage, and its apparent reliability,[20] so as to mount an attack against the credit of Baker, the main prosecution witness. The defence pointed out inconsistencies between Baker’s account and the CCTV footage.[21] The defence then argued that this showed Baker’s account generally could not be accepted.[22] The defence also argued that the CCTV footage told against the applicant having formed murderous intent.[23]
[20]It is true that the applicant raised the purported timing inconsistencies of the CCTV footage in a note to the trial judge, after the applicant terminated the services of his counsel, following final addresses and before the judge’s charge. None of this changes the fact that the defence never sought to have the evidence excluded, and never relied upon timing inconsistencies as part of its case before the jury.
[21]Baker’s evidence that he was outside when he saw the applicant jump the fence was not borne out by the CCTV footage, which showed that he remained in the foyer. Further, Baker’s evidence that he talked with the applicant and the victim in the corridor was not borne out by the CCTV footage, which showed they had entered the victim’s room.
[22]Including his account of the victim’s dying declaration (‘Earl got in and got me’) and of the later phone call (‘Steph’s fucked and you’re next’).
[23]The defence made an argument that the footage showed the applicant to be of a calm and measured disposition leading up to the fatal altercation, which was said to be inconsistent with the sudden formation of murderous intent.
Where incompetence of counsel is not alleged (and it is not here), generally, forensic choice not to object to the admission of evidence, operates to bind the parties to the conduct of their case at trial.[24] It also points strongly against there being any resulting unfairness by reason of its admission,[25] and generally means that it could not be said that a substantial miscarriage of justice has occurred.[26]
[24]Ali v The Queen (2005) 79 ALJR 662, 666 [25], 677 [98].
[25]Ulutui v The Queen (2014) 41 VR 676, 681 [27]; Da Silva v The Queen (2013) 236 A Crim R 214, 220 [28]; Velkoski v The Queen (2014) 45 VR 680, 729 [206].
[26]Ali v The Queen (2005) 79 ALJR 662, 666 [25]; Velkoski v The Queen (2014) 45 VR 680, 729 [207]; Ulutui v The Queen (2014) 41 VR 676, 681 [27].
These principles apply here. In our opinion, the CCTV footage taken at the Regal was unquestionably properly admitted at trial. There was no unfairness of any kind, and there was no substantial miscarriage of justice, by reason of its admission.
Finally, complaint is made about the trial judge’s failure to give a direction to cure the unfairness said to have arisen by reason of the admission of the CCTV footage. That is answered by our conclusion that there was no unfairness which required curing by way of direction.
Complaint is also made that the judge should have directed the jury in relation to the purported timing inconsistences raised by the applicant in his note to the trial judge. The trial judge gave the jury a direction to examine the CCTV evidence very carefully when evaluating the evidence of Baker. It would have been inappropriate to descend into any further detail given that the issues and arguments raised by the applicant in his note were never agitated during the trial before the jury, were contrary to the manner in which the defence had conducted its case, and were not supported by the evidence. In our opinion, the trial judge was correct to conclude that any further direction would not have assisted the jury. We would add that any further direction would have been unhelpful to the applicant.
Summary of conclusions
Having granted the applicant leave to file a supplementary written case in relation to ground 2, we would grant leave for that ground to be added.
However, for the above reasons, the applicant has failed to make out either of the proposed grounds of appeal. The application for leave to appeal against conviction will be refused.
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