Martin v The Queen
[2015] ACTCA 38
•13 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Martin v The Queen; Martin v The Queen |
Citation: | [2015] ACTCA 38 |
Hearing Dates: | 12 February 2014; 5 May 2014 |
DecisionDate: | 13 August 2015 |
Before: | Refshauge, Burns and Ross JJ |
Decision: | The appeal against conviction is dismissed. The appeal against sentence is dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – murder. APPEAL – Appeal to the Court of Appeal – appeal against jury verdict and sentence – evidence – judicial discretion to admit or exclude evidence – whether the trial judge erred in failing to discharge the jury following a non-responsive disclosure by a witness that he met the accused in custody – whether the trial judge erred in admitting graphic photographs – whether the trial judge erred in admitting tendency evidence of the accused’s criminal behaviour – whether the trial judge erred in admitting tendency evidence of the non-aggressiveness of the deceased where no notice was given of intention to adduce such evidence – whether the trial judge erred in admitting listening device evidence where that evidence was obtained in consequence of an unlawful arrest of the accused – jury directions and closing submissions – whether the trial judge erred in allowing the Crown to make closing submissions regarding conclusions that could be drawn in relation to blood spatter evidence – whether the trial judge gave an inaccurate summary of the evidence in jury directions – appeal dismissed. APPEAL – Appeal to the Court of Appeal – Crown appeal against sentence – whether the trial judge erred in failing to consider or properly consider the relative objective seriousness of the offence – whether the trial judge erred in failing to take proper account of sentencing practice – whether the trial judge erred in failing to take proper account of sentencing practice in setting a ratio between the head sentence and non-parole period – whether the trial judge erred in failing to take into account the rehabilitative and protective functions of parole – whether the trial judge made findings of fact that were not supported by the evidence – appeal dismissed. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 196, 203, 212 Crimes Act 1914 (Cth) Pt 1C, s 23A (6) |
Cases Cited: | Briginshaw v Briginshaw (1938) 60 CLR 336 Bugmy v The Queen (1990) 169 CLR 525 |
Parties: | Corey Martin (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S Gill (Appellant) Mr J White (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 30 of 2013; ACTCA 82 of 2013 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Acting Justice Nield Date of Decision: 28 May 2013 Case Title: R v Martin Court File Number: SCC 413A of 2011 |
THE COURT:
On 28 May 2013, the appellant, Corey Martin, was convicted by a jury of one charge that on 19 May 2010 he murdered Andre Le Dinh. On 16 October 2013, he was sentenced to 22 years and 6 months’ imprisonment with a non-parole period of 17 years and 6 months. He now appeals from the jury’s verdict and the sentence imposed.
Appeal against conviction (ACTCA 30 of 2013)
We will deal initially with the appeal against conviction. The grounds of Mr Martin’s appeal against conviction are:
Failure to Discharge
1. That [the trial judge] erred in failing to discharge the jury following the non-responsive disclosure by the witness Stephen Bell that he had met the appellant in gaol, such disclosure constituting an impermissible attack on the appellant’s character and credibility thereby depriving him of a fair trial, in circumstances where:
iin a non-responsive manner, the witness Kelly-Ann Shea had twice attacked the appellant’s character
ii[the trial judge] had already taken care to exclude references to the appellant’s incarceration in the recordings of telephone conversation at the Alexander Maconochie Centre (“AMC recordings”)
iiiin response to the reference in the AMC recordings to the appellant not coming home for ten weeks, the jury had asked where the appellant had been
ivthe appellant’s case was squarely focused on the issue of whether the appellant’s account could be rejected beyond reasonable doubt.
Admission of Criminal Tendencies of the Appellant
2.[The trial judge] erred in admitting evidence of conversations in which the appellant and Rebecca Krutsky discussed the appellant committing a range of offences when he returned home in circumstances where the probative value of this evidence was outweighed by its prejudicial effect.
Admission of Tendency Evidence Favourable to the Deceased
3.[The trial judge] erred in admitting tendency evidence regarding the non-aggressiveness of the deceased, in particular, where no notice of the intention to present this evidence was given.
Admission of Graphic Photographs
4.[The trial judge] erred in admitting photographs of the deceased’s blood-coated face:
iby failing to give any, or any proper, consideration to the probative value of the photos;
iiby failing to assess whether the probative value of the photos was outweighed by the danger that they would cause unfair prejudice to the appellant.
Admission of Listening Device Evidence
5.[The trial judge] erred in admitting listening device evidence in circumstances where the evidence was obtained in consequence of the unlawful arrest of the appellant...
Improper Closing Regarding Blood Evidence
6.[The trial judge] erred in allowing the Prosecutor to make submissions in closing regarding conclusions to be drawn from the blood splatter evidence:
iwhich were inadequately supported by the expert evidence;
iiwhich the Prosecutor had failed to put to the expert.
Inaccurate Summary of Evidence Regarding Movements of Jason Chui and the Deceased
7.[The trial judge] erred in concluding to the jury that the evidence meant that Mr Chui arrived home and gained access to his unit before the deceased arrived home.
The appellant seeks orders that his conviction be quashed and that he be re-tried.
The case at trial
On 20 May 2010, the body of the deceased was located in his residence at unit 107 of the Oracle Apartments in College Street, Belconnen. The deceased had sustained extensive head injuries including fractures to the skull, facial lacerations and extensive bruising. The Crown case against the appellant was that he killed the deceased in the course of a robbery on 19 May 2010, either intending to kill him or, at least, intending to do him serious harm. The appellant’s case was that he and the deceased had argued in the deceased’s unit on that day, leading to a physical altercation between them in which he, the appellant, was acting in self defence. The appellant alleged that the deceased suffered injuries as a result of this altercation, but that he had been alive when the appellant left the unit. He denied any plan or attempt to rob the deceased on 19 May 2010.
The Crown case against the appellant was very strong. The deceased was employed in the Commonwealth public service, but also conducted a business as a cannabis supplier from his residence. As a consequence, the deceased would, from time to time, have large quantities of cannabis and money in his unit. Camilla Krutsky, the daughter of Rebecca Krutsky, the de facto partner of the appellant, resided at unit 110 of the Oracle Apartments, about 10 metres down a hallway from the deceased’s apartment. She resided there with her boyfriend Jason Briskey. There was evidence that Camilla Krutsky knew the deceased was a cannabis supplier, and had purchased cannabis from him herself.
On 21 July 2009, the appellant’s parole was cancelled and he was thereafter held in custody as a sentenced prisoner at the Alexander Maconochie Centre (AMC) in relation to a prior offence unrelated to these proceedings. The Crown led evidence that the appellant and Rebecca Krutsky had spoken of robbing the deceased in telephone conversations (between February and April 2010) whilst the appellant was in prison.
On 4 February 2010, a telephone conversation between the appellant and Rebecca Krutsky was recorded:
KRUTSKY: And Frank’s now got another fucking source rather than having to go up and see Cathy if he runs out. He can just go next door to Camilla’s flat, because there’s some big pot dealer that lives next door.
MARTIN: Oh really, is there? Who is it? Do you know who it is?
KRUTSKY: No.
MARTIN: Oh.
KRUTSKY: I don’t.
MARTIN: And does plenty, does he?
KRUTSKY: I fucking wish I did.
MARTIN: And does plenty?
KRUTSKY: Hey?
MARTIN: And does plenty?
KRUTSKY: Yeah.
MARTIN: Oh, good. Thanks for telling me that, darl. Lives next door to Camilla, hey?
KRUTSKY: Yeah.
MARTIN: Yeah. Mate. Good. There you go, that’ll do me.
KRUTSKY: No, that’s number one.
MARTIN: Hey?
KRUTSKY: There’s a few more, don’t worry.
MARTIN: Is there?
KRUTSKY: That’s number one. Oh, I was fucking - - -
MARTIN: Yeah, good.
KRUTSKY: - - - lining them all up.
MARTIN: Yeah, good, darl. Good, because it will be good when I come home.
KRUTSKY: I’m fucking sick of it.
MARTIN: Hey?
KRUTSKY: Sick of all of them, they can all go and fuck themselves.
MARTIN: Yeah. Well, wait till I come home, darl. Ten weeks, babe.
KRUTSKY: That’s all right, I can butter a few more fucking suckers up.
MARTIN: Good. Do it, all right? And I’ll punt the fucking lot of them.
KRUTSKY: Yeah, and I’ll be standing there going, “See, mother fucker?”
MARTIN: Yeah.
KRUTSKY: “Want to fuck with me? Think I’m a fucking piece of shit now, do you?”
MARTIN: Yeah.
KRUTSKY: “Fucking now we’ll see what fucking happens when my husband punches your fucking head in, cunt”
MARTIN: Good, and I’ll take everything as well. So he does a bit? Do you – have you met him or know him?
KRUTSKY: No, I haven’t. I don’t – and Camilla’s only met him the once.
MARTIN: Yeah.
KRUTSKY: And – and honestly, he thinks that she was a fucking visitor or a stranger walking into the fucking unit today.
MARTIN: Oh yeah. Is (sic) there cameras in that place and that?
KRUTSKY: I don’t know.
MARTIN: Oh.
KRUTSKY: I think there might be.
MARTIN: Oh, so I can get past them quite easily, hey?
KRUTSKY: Oh, well, you’ve got a swipe key.
MARTIN: Yeah, that’s what I mean. Yeah, I can get past them quite easily, darl.
KRUTSKY: Oh, well, either way, that – we’ll just spray them.
MARTIN: Yeah, exactly.
KRUTSKY: So that you don’t see the hallway.
MARTIN: Yeah, good, and Camilla can find out how much he does and that and I’ll pump him.
When the appellant gave evidence at the trial, he agreed that the word “pump” in the above exchange meant to rob the deceased.
The Crown called evidence from Mr Briskey that, on the night of 18 May 2010, he and Camilla Krutsky met the appellant in front of the Oracle Apartments. The appellant was wearing a beanie, a scarf, gloves and a tracksuit and was carrying a medium sized sports bag. The three of them went to unit 110, where the appellant said he was going to rob the deceased and asked if they knew whether the deceased was at home. He told Mr Briskey and Camilla Krutsky that he was going to knock on the deceased’s door and that, if the deceased answered, he was going to knock him out and then rob him, and if the deceased regained consciousness he would knock him out again. The appellant then left unit 110, and they did not hear from him again that night.
The following night, 19 May 2010, the appellant again met Mr Briskey and Camilla Krutsky in front of the Oracle Apartments, and all three again went to unit 110. The appellant was attired as he had been the previous evening, and was carrying the same sports bag. The appellant asked Mr Briskey and Ms Krutsky if the deceased was at home, and they replied they did not know. The appellant told them he was going to rob the deceased and left their apartment. Mr Briskey then began playing video games, until a short time later when, as a result of something Ms Krutsky said to him, he went to the door of unit 110 and heard a series of “thumping noises”, about 10 to 20 seconds apart, coming from the direction of the deceased’s apartment. He described the noises as “like someone had been picked up and dropped on the floor”.
The next day, 20 May 2010, the deceased’s body was found in his apartment. The following day, 21 May 2010, Mr Briskey and Camilla Krutsky met the appellant and Rebecca Krutsky at Belconnen Mall. The appellant told them he had robbed the deceased and told them not to say anything.
A further Crown witness, Kellie-Ann Shea, testified that, about one to one and a half weeks after the death of the deceased, the appellant was at the house she shared with her boyfriend, Steven Bell (although Mr Bell was not present at the time) when a television news report concerning the death of the deceased came on, featuring a photograph of the deceased. The accused said words to the effect of: “If I wouldn’t have kicked him in the head one too many times, maybe he’d still be alive today”.
There was evidence that, in the days following the death of the deceased, the appellant was in possession of significant quantities of cannabis and a large amount of money. On 20 May 2010, he purchased a Subaru WRX motor vehicle using cash, as well as other items.
Police subsequently obtained a listening device warrant for the premises where the appellant and Rebecca Krutsky lived. Various recorded conversations between the appellant and Rebecca Krutsky were put before the jury, revealing admissions by the appellant as to his involvement in the death of the deceased, and the “workshopping” of various factual scenarios to allow the appellant to explain how he came by the money he spent in the days following 19 May 2010, and to deny involvement in the death of the deceased.
There was evidence which strongly suggested that the deceased had not moved after receiving his significant head injuries, leading to the obvious conclusion that the blows which caused those injuries were inflicted on him while he was lying on the ground in the position where his body was ultimately located inside his apartment.
Telephone records showed that the appellant made numerous calls to his heroin dealer, Mr Bell, but made none to the deceased.
The appellant testified that, by late April 2010, he had given up any thought of robbing the deceased and instead began sourcing relatively large amounts of cannabis from him for the purpose of on-sale. He said he would regularly purchase a pound of cannabis from the deceased and then sell it at a profit to help support his “extensive heroin habit”. Once he developed a rapport with the deceased, the appellant said, he was given cannabis by the deceased to sell on credit. The appellant would sell the cannabis and then pay the deceased. On occasions he would receive one or even two pounds of cannabis on credit, with a value of between $3000.00 or $3500.00 (for one pound) and $6000.00 to $7000.00 (for two pounds).
The appellant testified that he visited Camilla Krutsky on 19 May 2010 and that she gave him access to the Oracle Apartments. He was in unit 110 for a short time with Camilla Krutsky and “her boyfriend”, during which time he had “a smoke” on the balcony. He then left and went to the deceased’s unit. He testified that he went there as “I’d owed him for a couple of pound (sic). So I was trying to get some more”. He said the deceased allowed him into the apartment, and he asked the deceased to give him “another two pound (sic)” to sell on credit. The deceased then became angry, he said, and reminded him he still owed the deceased for two pounds of cannabis. The appellant said the deceased told him to get out and grabbed him around the scruff of the neck. The appellant said that a fight then erupted between himself and the deceased. Each punched the other and they then grappled with each other before hitting a bench and falling to the floor, where the struggle continued. Eventually they both regained their feet, and the appellant noticed that the deceased had his hand on his face and had blood coming from his mouth or nose. The deceased then said to him, “Just grab the pot and get out and make sure you come back with the money”.
A later search of the deceased’s unit by police located a substantial sum of money and a large quantity of cannabis in the laundry, suggesting that no thorough search of the deceased’s unit had been undertaken by his killer.
The appellant testified that these events occurred in the open-plan living/kitchen area. In that area there was a coffee table between the television and a lounge. The appellant said there was “a heap of pot, bags of pot, and a stack of cash” on the coffee table, which he picked up and left with while the deceased stood by. He denied having any intention to kill the deceased or cause him significant harm when he fought with him.
Grounds of appeal
Ground A: Failure to discharge the jury
The taped recording of telephone conversations between the appellant and Rebecca Krutsky occurred while the appellant was imprisoned within the AMC. The trial judge was at pains to attempt to keep from the jury the fact that the appellant had been in prison when these conversations occurred. During the conversation on 4 February 2010 (as set out at [7] above), the appellant said to Rebecca Krutsky: “Yeah. Well, wait till I come home, darl. Ten weeks, babe.” Not unnaturally, this caused the jury to wonder where the appellant was when this conversation occurred, and they asked a question to this effect. The trial judge, after consulting counsel, directed the jury that the evidence did not disclose where the appellant was at the time he made the telephone call, and that they should not speculate. No complaint was or can be made about that direction.
That recording was played to the jury on 14 May 2013. Two days later, on 16 May, the Crown called Mr Bell as a witness. Early in his evidence in chief, it was suggested to him that he had known the appellant for some time, to which he replied, “Yes, I met Corey in gaol, yes”. In the context of his evidence, this inevitably conveyed to the jury that the appellant had been in prison for some reason unconnected with the allegation that he had murdered the deceased. It is clear that the statement by Mr Bell that he had met the appellant in “gaol” was not responsive to the question asked of him, and no blame can attach to the prosecutor.
Counsel for the appellant, quite appropriately, made no immediate complaint about Mr Bell’s statement. To have done so would only have focussed the jury’s attention on the statement. At the conclusion of Mr Bell’s evidence, and in the absence of the jury, he applied to the trial judge to discharge the jury. In the course of that application, counsel for the appellant also referred to evidence given by the Crown witness Ms Shea, where she described the appellant, after seeing a television report about the death of the deceased, as smirking “his intimidation looks, as Corey goes on intimidation” and “It was only a sly – not a happy smirk, a sly smirk, intimidating”. Counsel for the appellant submitted that this material was highly prejudicial and that no direction by the trial judge could cure that prejudicial effect. The trial judge declined to discharge the jury.
The trial judge, with respect, quite properly said nothing to the jury about this matter until two days later, giving himself an opportunity to read the transcript of the evidence of Mr Bell and Ms Shea and to hear further legal argument. On 20 May 2013, the trial judge gave the following direction to the jury:
HIS HONOUR: Members of the jury, before the Crown prosecutor calls the next witness in the trial there is something that I wish to say to you.
I expect that you will remember that when you were part of the jury panel I asked the jury panel whether any member – any person who thought they could not bring an open and unbiased mind to the evidentiary material, that could not view it coldly, clinically and dispassionately to raise his or her arm.
There is a reason for my asking that question. I wish to remind you now that you must bring an open and unbiased mind to the evidentiary material and that you must view it coldly, clinically and dispassionately. I say that and I remind you of that because the evidence that has been presented to you may paint a world quite different from the world in which you live. I say that because in this trial you know these things.
The deceased supplied cannabis. Mr Haddock knew that the deceased was supplying cannabis. Ms Skye Soinnen knew that the deceased supplied cannabis. Her brother, Mr Ryan Soinnen, knew that the deceased supplied cannabis and he and the deceased sometime, years before, had both smoked cannabis. Ms Kelly Jackson knew that the deceased possessed cannabis. Ms Isabella Bogart knew the deceased possessed and supplied cannabis. Mr Justin Smith knew that the deceased possessed and supplied cannabis. Mr Chris Hawley smoked cannabis, bought cannabis from the deceased and knew that a friend of his, Camilla, bought cannabis from the deceased for herself and for Frank.
Mr Jason Briskey who was, at one stage, the boyfriend of Camilla smoked cannabis and he knew that Camilla bought cannabis for herself and for Frank from the deceased. Moreover, he has admitted lying to police in his explanations to police when interviewed. Ms Kellie-Ann Shea is a recovering heroin addict. She had been in prison. She’s living with Stephen Bell. She knew that Stephen Bell supplied cannabis to the accused. Sorry, heroin to the accused. Stephen Bell told you that he supplied heroin to the accused, that he had been in prison. Although you haven’t heard from Ms Rebecca Krutsky, the mother of Camilla, you know from Ms Shea’s evidence that she had been in prison.
I tell you these things, members of the jury, because, as I have said, this world in which these people live might be quite alien to the world in which you live. I tell you that these things should not cloud your judgment of the issue in this trial. And the issue in this trial is whether or not the evidence proves beyond reasonable doubt that the accused murdered the deceased. So, members of the jury, whilst you’ve heard these things and, of course, they are all relevant to what the Crown says happened do not let them cloud your judgment of the issue in this trial.
Now, Mr Bell said that he knew the accused in prison. He used the word jail, I use the word prison. This was a gratuitous comment made by a witness which was not responsive to the Crown prosecutor’s question. You must disregard that reference. You do not know if it is true or not. You do not know the circumstances, if it is true, under which it occurred. You must disregard that reference. As I have said the references to the people to whom I have referred knowing about the deceased and his possession and supplying of cannabis should not cloud your judgment of the issue in this trial and that is, as we have been at pains to point out, whether the evidence presented to you in the courtroom during the trial proves beyond reasonable doubt that the accused murdered the deceased.
His Honour asked both counsel for the Crown and for the appellant whether they wished his Honour to add anything and both said that they did not.
In R v Knape [1965] VR 469, the Full Court of the Supreme Court of Victoria (Winneke CJ, Pape and Starke JJ) said that, where evidence of an accused’s prior bad character, such as prior convictions, is inadvertently elicited from or volunteered by a witness, the trial judge must consider exercising the undoubted discretion to discharge the jury. As a matter of policy, such evidence should not normally be placed before the jury. The Full Court said, at 472:
The law has long recognised the prejudicial effect of evidence of prior convictions and bad character, and that such evidence is calculated to render a fair trial improbable. Thus as a matter of high policy evidence of such matters, apart from the well-known exceptions, is rigidly excluded.
Later, the Full Court said, at 473:
However, if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstances of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused.
The trial judge was exercising a discretion when he refused the appellant’s application to discharge the jury. The events in the appellant’s trial did not give rise to an obligation on the part of the trial judge to discharge the jury, nor do we understand the appellant to assert that was the case. In Crofts v The Queen (1996) 186 CLR 427, the majority (Toohey, Gaudron, Gummow and Kirby JJ) said, at [20] – [21]:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its appropriate impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?
In R v Halliday (2009) 23 VR 419, the Court of Appeal of the Supreme Court of Victoria (Buchanan, Ashley and Weinberg JJA) thought it “debatable” whether the above passage from Crofts should be read as casting doubt on the principles laid down in Knape. The Court of Appeal did not purport to answer that question. There is, however, considerable authority for the proposition that, on an appeal from the exercise of such a discretion, the question to be determined is whether the court can be satisfied that the irregularity has not affected the verdict, and that the jury would have returned the same verdict if the irregularity had not occurred: see Maric v The Queen (1978) 20 ALR 513 per Gibbs J; Simic v The Queen (1979-1980) 144 CLR 319 (concerning a misstatement of evidence by a trial judge). In Santos v The Queen (1987) 75 ALR 161, Mr Santos appealed from a conviction following a trial in which his co-accused had revealed that, at the time of the alleged offence, Mr Santos was an escaped prisoner. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ), referred with approval, at 167, to the earlier statement by Gibbs ACJ (with whom Jacobs and Mason JJ agreed) in Maric at 520–1, that:
At basis the question is whether the Court of Criminal Appeal can be satisfied that the irregularity has not affected the verdict and that the jury would certainly have returned the same verdict if the errors had not occurred.
There are cases in which it is inevitable that evidence of prior bad character or convictions of an accused will be placed before the jury. For example, where an accused is tried for an offence that allegedly occurred in prison, the jury will inevitably be made aware of the fact the accused was in prison, and may surmise from that fact that he or she has prior convictions and is a person of bad character. However, to our knowledge, it has never been asserted that a fair trial cannot occur in such circumstances. Having said that, such evidence should not be placed before the jury where there is no necessity to do so.
What then, adopting the words of the majority in Crofts, was the “seriousness of the occurrence in the context of the contested issues” in the appellant’s trial? The evidence at the appellant’s trial, either properly adduced by the Crown or inherent in the appellant’s case, inevitably established that he was a person of bad character. He was admittedly party to a proposal that he would rob the deceased. The evidence established that he was a heroin user, as well as a user of cannabis. Inherent in his own case was the proposition that he was a drug dealer, selling significant quantities of cannabis to fund his heroin habit. It was inherent in his own case that he was a criminal involved in serious criminal offending. It would have come as no surprise to the jury that the appellant had been in prison, and this revelation would have had less effect on the jury than the appellant’s admitted criminal conduct. The evil identified in the cases explaining the prohibition on adducing evidence of bad character is that the jury will give the evidence disproportionate weight and will engage in an impermissible reasoning process based on character. These issues inevitably arose in the appellant’s trial and would have done so even without the revelation by Mr Bell that the appellant had been in prison, which was not a deliberate disclosure. There is no complaint about the adequacy of the trial judge’s directions to the jury about those matters, the complaint being that the trial judge should have discharged the jury after Mr Bell’s revelation.
In our opinion, considering the issues arising and the evidence that was properly adduced at trial raising the appellant’s character, the revelation by Mr Bell that the appellant had been in prison would not have affected the verdict, and the jury would certainly have returned the same verdict if Mr Bell had not made the revelation.
This ground of appeal fails.
Ground B: Admission of taped telephone conversation between the appellant and Rebecca Krutsky
This ground of appeal concerns the admission of a portion of the telephone conversation between the appellant and Rebecca Krutsky on 4 February 2010, as set out at [7] above. The portion of the conversation objected to begins with Rebecca Krutsky saying “No, that’s number one” and ends with her saying “Fucking now we’ll see what fucking happens when my husband punches your fucking head in, cunt”. The appellant objected to this material on the basis that it was irrelevant and presented the appellant as a person of bad character. In the alternative, it was argued that, if the material was relevant, its prejudicial effect exceeded its probative value and it should have been excluded pursuant to s 137 of the Evidence Act 2011 (ACT) (the Evidence Act).
In our opinion, the material objected to was relevant, and had significant probative value. In the impugned portion of the conversation, Rebecca Krutsky tells the appellant that she has lined up a number of robberies, of which the proposed robbery of the deceased was one. The appellant embraced the prospect with enthusiasm, saying he was going to rob them all. This conversation conveys an intention on the part of the appellant to engage in crimes other than the robbery of the deceased, but in doing so he speaks generally of his intention to commit those crimes, including the robbery of the deceased. It is highly relevant that in this portion of the conversation the appellant does not demur from the suggestion that violence be used in the course of these robberies. Indeed, when Rebecca Krutsky says “...we’ll see what fucking happens when my husband punches your fucking head in, cunt”, the appellant replies “Good, and I’ll take everything as well”, clearly embracing the proposal that violence be used in the course of the proposed robberies, including the robbery of the deceased. If the material objected to by the appellant were omitted, any reference to the proposed use of violence would be unjustifiably removed, to the significant detriment of the Crown case.
The unfair prejudicial effect suggested by the appellant was that the evidence would suggest to the jury that the appellant intended to commit multiple robberies. While that may have added slightly to the jury’s perception of the appellant’s bad character, it was clearly strongly probative of the Crown’s case that the appellant was, when robbing the deceased, intending to inflict violence on him.
The material objected to was relevant and had significant probative value which clearly outweighed any prejudicial effect. It was rightly admitted.
This ground of appeal fails.
Ground C: The admission of tendency evidence concerning the non-aggressiveness of the deceased
The deceased was a student of the martial art, Brazilian Jujitsu, which did not involve the use of weapons, or any striking or kicking. A Crown witness, Danny Weir, testified that he had been the deceased’s instructor. He described Brazilian Jujitsu as mostly wrestling on the ground, trying to control or escape from an opponent. He first met the deceased about May 2009. He described him as weighing 60 to 65 kilograms and as “not very tall”. The Crown prosecutor asked Mr Weir whether the deceased had been aggressive in class, to which the appellant objected. The learned trial judge overruled the objection and Mr Weir testified that the deceased was “very quiet, well mannered, polite...”
The appellant complains that this was tendency evidence designed to characterise the deceased as physically non-aggressive and thereby not a person likely to have instigated a physical confrontation with the appellant, counter to the evidence of the appellant. We are satisfied that this evidence was tendency evidence, because the only process of reasoning by which the jury could use it was in a tendency process: because the deceased had behaved in a certain way in the past, he had a tendency to behave in that way, making it likely that he behaved that way on 19 May 2010. The reception of tendency evidence is governed by s 97 of the Evidence Act:
97The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Paragraph (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 11; or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
The appellant complained that this evidence “acted as a further impermissible erosion” of his account of the events of 19 May 2010, and that no notice of the Crown’s intention to lead the evidence was provided as required by s 97 (1) (a). The significance of the evidence, the appellant says, was demonstrated in the Crown’s closing address to the jury regarding the proposition that the deceased had initiated the physical confrontation where it was suggested that the scenario was “preposterous”.
The Crown submitted that the evidence had significant probative value and that it was not required to give notice of an intention to lead the evidence because it was adduced to contradict tendency evidence adduced by the appellant: s 97 (2) (a). The Crown referred to evidence and material adduced by the appellant. In the course of his opening address to the jury, counsel for the appellant said:
But some of you might be able to bring this to life experience (sic) and that is that smaller men are not always the ones to back [down]. Now, there’s that saying that it’s not the size of the dog you fight but the size of the fight in the dog. My old Jack Russell, this big, thought he was an Irish Wolfhound. A small man is not necessarily a coward. That’s the halfback on the football field that often causes the fight. Just because you’re small doesn’t mean you’re not going to have a red hot go. So, the small man is not necessarily the coward and this particular small man was fit, you’ll hear evidence that he was fit, but small. You will hear evidence that he was trained in Jujitsu. Jujitsu is a martial art which is designed to nullify superior strength to deal with a person who has superior strength by using a technique on that person.
And so, dammit, we have here a big dealer who deals by the pound, where money flows through by the thousand, was trained in Jujitsu and was fit and then this man here...(indistinct)...not paying his tick, wanting more. And [the deceased] has a go at him, has a physical go at him which is an unwise thing to do. One doesn’t always expect drug dealers to behave in a wild fashion but he has a crack at this fellow. He’d just returned from Jujitsu training and as he had in his Jujitsu training, he was sparring earlier that very same evening, he came at [the appellant]. They scuffled. He was falling. There was a fight, punches were thrown and harm was done. And [the deceased] was both bloodied and bested in the altercation. His Jujitsu did not defeat [the appellant’s] fists. And I say “fists”, because this is not a case that involves the use of a weapon. [The deceased] was left in a position where he was bleeding as a result of this altercation with [the appellant], but he’s conscious and he’s not very happy that he’s clearly defeated. And to the victor go the spoils. [The appellant] sweeps up the cash – there’s a lot of it – and the pot – there’s a lot of it – from the coffee table, and he goes. [The deceased] is in no position to prevent him from doing so.
As [the appellant] left this very explosive encounter, an encounter that you might think he might be a little bit surprised at having this guy come at him. Suddenly they’ve had this relationship and he cracks it and all of a sudden comes at him. You might expect that [the appellant] found it a little bit surprising.
We make two points about this material. Firstly, as an opening address by counsel, it did not constitute evidence in the appellant’s trial so as to enliven the exception to the requirement to give notice provided by s 97 (2) (b). Secondly, viewed by itself, this material did not suggest that the deceased had a tendency to act in a particular way or to have a particular state of mind. It was clear from the Crown’s opening address to the jury that it placed great weight on the size differential between the appellant and the deceased in establishing that any altercation between the appellant and the deceased had been one-sided and instigated by the appellant. The Crown’s case was that the deceased was suddenly and violently attacked and had no opportunity to defend himself. The appellant’s case, of course, was that the deceased attacked him, and a fight ensued in which he got the better of the deceased. These statements made by the appellant’s counsel in his opening did not impute any tendency to the deceased to act aggressively. Counsel merely suggested that the size differential between the appellant and the deceased did not necessarily determine that it was the appellant who started any physical confrontation.
The next material identified by the Crown as imputing a tendency to the deceased to act aggressively is found in the cross-examination of Crown witnesses concerning the appellant’s participation in Jujitsu and ability to defend himself. In cross-examination of Greg Haddock, a friend of the deceased, evidence was adduced that the deceased would attend Jujitsu classes twice a week. Another friend, Skye Soinnen was cross-examined in the following way:
Now, [the deceased] would also drive places to deliver cannabis. Is that right?---That’s right, yes.
And he took no muscle with him other than you to do that sometimes?---Sorry, I didn’t notice after he moved into the apartment that he was transporting it around. It was more before he moved into that apartment. I’d been in the car with him a couple of times and he’d say he was doing a drop off but, yes, I’d always wait in the car but it was only me that was with him.
Later, a fellow student of the deceased in Jujitsu, Jeremy Margosis, was cross-examined about a bout he had with the deceased on the evening of 19 May 2010:
Did you tell the police this, “We tapped hands to indicate we were ready to start”?---Yes.
And that’s kind of the start of every roll, isn’t it?---Yes.
And then this, “[the deceased] surprised me by launching into me quickly and getting me onto my back”?---Yes. Yes.
Right?---Yes, that’s the typical little guy move that you usually do. I do that on the bigger guys as well.
Yes. Yes. Come out hard?---Yes. Well, it’s more of a case of if a guy’s bigger and stronger than you, they can often dictate where it happens, so as the smaller guy, if you get in first and try and at least make a move, you’ve got some hopefully sort of say as to where it might kind of – the roll might start.
Right. Do you take the initiative, as the little guy?---Usually, yes. That’s – that’s the way you do it, is to – to try and at least – it often doesn’t work because the other person’s just way bigger and stronger than you, but you at least – rather than sitting back and waiting for them to do something to you, if you try and possibly do something.
Yes. So what you said to police is, “[the deceased] surprised me by launching into me quickly and getting me onto my back”?---M’mm.
“He was above me, we both grappled, trying to get a better position on each other”?---Yes.
All right. You then used both your strength and your technique to best him in that roll?---Yes. The – the initial sweep was more of a technique move, and - - -
But you had technique on him?---Yes.
As well as being bigger than him?---Yes.
All right. And so you told the police that that was how the roll had gone with him?---M’mm.
But it had ended up with him expressing some frustration about it - - -?---Yes.
This is questioning that is clearly intended to go beyond establishing the physical capacity and capabilities of the deceased. It also has to be seen in the light of the opening by the appellant’s counsel which made this an issue in the trial to which the jury’s attention was drawn. The suggestion inherent in this line of questioning is that the deceased did not need “muscle” (by which we understand the appellant to mean bodyguards) as a drug dealer because he was able and willing to protect himself, and that he was likely to have initiated the physical altercation with the appellant (a larger man) on 19 May 2010, because this is what he had done in the past in Jujitsu. The cross-examination of Mr Margonis adduced evidence that can only be relevant by tendency reasoning, suggesting that he may have acted aggressively against the appellant, a larger man, because he had acted in that way in the past in Jujitsu classes.
As such, the evidence objected to by the appellant was admissible without advance notice under s 97 (2) (a) of the Evidence Act. It had significant probative value as tending to negate the implied suggestion that the deceased was aggressive, or likely to have attacked the appellant. The extent of the evidence, in the context of the trial, was slight and we can see no basis upon which it should have been rejected pursuant to s 135 or s 137 of the Evidence Act. The evidence was rightly admitted, and this ground of appeal must fail.
Ground D: The admission of photographs of the deceased’s blood-coated face
Before the commencement of the trial, the trial judge dealt with a number of objections to evidence raised by the appellant, including objections as to the admissibility of a number of photographs, including the three ultimately admitted into evidence of the body of the deceased in situ in unit 107. The trial judge, after careful consideration, rejected a number of photographs the Crown proposed placing before the jury, but allowed three. Objection was taken to the admission of the photographs on the basis that their probative value was outweighed by the danger of unfair prejudice: s 137 Evidence Act. The appellant’s complaint was that the photographs were likely to inflame the jury and that there was no need to place them before the jury, as other evidence was available that did not possess the same potential for prejudice.
The impugned photographs depict the deceased’s body lying on the floor of his unit with blood on his face and upper body, and on the floor surrounding his head. Other photographs, adduced without objection, show the same scene after the body of the deceased was removed. Federal Agent Annette Dodsworth, a crime scene investigator employed by the Australian Federal Police, gave evidence of a number of conclusions she formed based on the blood stains observed on the deceased’s face and body, and on the floor surrounding his body:
(a)the mist-like blood stains and the large stains observed on the upper body and surrounding the upper body of the deceased were formed by an expiated blood stain pattern, formed when blood was expelled from the nose or mouth or a wound from the deceased as a result of air pressure or air flow;
(b)the “void” or “shadow” pattern produced both underneath the singlet the deceased was wearing and beneath his body support the proposition that the deceased was lying in situ on the lounge room floor when that blood was deposited or expiated; and
(c)the blood flow patterns present on the head and neck of the deceased indicated that this blood flow occurred while the deceased was in situ on the lounge room floor and that he did not move while that blood was flowing.
These conclusions were consistent with the evidence of Dr Paul Bedford, the forensic pathologist who conducted the autopsy on the deceased. He noted an “unusual pattern of blood over much of [the deceased’s] body but in particular the upper half of the body”. The blood splatter pattern suggested that it had been “quite relatively [sic] violently expectorated or coughed up...over his body”.
Another forensic pathologist, Dr Linda Iles, conducted an examination of the deceased’s brain following the autopsy conducted by Dr Bedford. She testified that the deceased had sustained significant blunt force head injury, with haemorrhages over the surface of the brain, contusions to the frontal and temporal lobes of the brain and a laceration in the left temporal lobe. The contusions suggested that there had been “some rapid acceleration and deceleration of the brain”. Dr Iles was asked about the prospect that the deceased had remained, or became, conscious after the infliction of these injuries:
Okay, and in that period of survival are you able to comment on the range of possible consciousnesses given the overall injuries that you’ve identified?---Given the spectrum of injuries I would suggest it most likely that [the deceased] would have been unconscious immediately after the injuries had been sustained however it should be noted that there are well documented cases in the literature of people sustaining these type of brain injuries and being lucid and then subsequently falling into unconsciousness. So, I cannot exclude the possibility of a period of a lucid interval.
But your expectation would be unconsciousness from the point of the injury?---That would be the most likely scenario.
The undeniable fact that evidence of the blood splatter patterns observed on and around the deceased’s body could have been placed before the jury without the photographs in question being admitted is not determinative of the issue of whether the learned trial judge failed to properly apply s 137 to the question of their admission. As we have demonstrated, the evidence of the blood splatters was highly relevant, as tending to suggest that the most serious injuries inflicted on the deceased were inflicted while he was on the ground, in the position where his body was later located by police. This, in turn, tended to negate the version of events provided by the appellant. The photographs were highly probative of the events that occurred in the apartment between the appellant and the deceased, in particular, important issues such as where the deceased’s body ended up and the relationship of the body to the blood spatter. A mere description in words may not have conveyed as clearly the nature of the evidence as the photographs.
The question is, did the potential prejudicial effect of the photographs exceed their probative value? Some jurors may find photographs such as these confronting, but we doubt that they would have been so shocked or inflamed by the photographs as to prejudice them against the appellant. This was a murder trial, so the jury would have anticipated seeing and hearing confronting evidence. Such a trial cannot be completely sanitised without risking loss of part, and perhaps a significant part, of the probative value of the evidence. In addition, no request was made by the appellant’s counsel for any direction by the trial judge about the photographs or the way the jury were to deal with them.
The potential prejudicial effect of those photographs did not exceed their probative value, and there was no basis for their exclusion under s 137 of the Evidence Act. The trial judge correctly admitted the evidence. This ground of appeal fails.
Ground E: Admission of the listening device evidence
On 27 May 2010, police executed a search warrant at the residence the appellant shared with Rebecca Krutsky. Police arrived at the residence at 9:50 am, and at 11:27 am they arrested the appellant for the murder of the deceased. He was conveyed to a police station, where he underwent a forensic examination and was given the opportunity to participate in a taped interview, which he declined. Rebecca Krutsky was not arrested, but at 11:36 am she consented to accompany police to a police station where she voluntarily participated in a taped interview. At 12:30 pm, while both the appellant and Rebecca Krutsky were absent from the residence, other police, not involved in the execution of the search warrant, arrived at the residence and installed a listening device or devices in the premises pursuant to a previously obtained warrant. The installation of the listening device was completed by 2:15 pm. It is not clear when the search of the premises concluded, but at about 5:00 pm the appellant was released and conveyed to the premises by police. At about the same time Rebecca Krutsky was separately returned to the residence by police. Thereafter, conversations between the appellant and Rebecca Krutsky in the residence were recorded. Portions of those recorded conversations relevant to their knowledge of, or involvement in, the death of the deceased were adduced as evidence by the Crown at the appellant’s trial.
The appellant objected to the conversations recorded by the listening devices being received into evidence, on the grounds that his arrest on 27 May 2010 was unlawful and had been, at least in part, for the purpose of removing him from the premises so that the listening devices could be installed. A voir dire was conducted at the conclusion of which the trial judge, without delivering reasons, ruled that the evidence was admissible.
In the course of the voir dire, Detective Sergeant Wiggins, the officer who arrested the appellant, testified that he arrested the appellant because he had reasonable grounds to suspect that the appellant had murdered the deceased. It appears to be common ground that, in arresting the appellant, Detective Sergeant Wiggins was utilising the power of arrest granted by s 212 of the Crimes Act 1900 (ACT):
212Power of arrest without warrant by police officers
(1)A police officer may, without warrant, arrest a person for an offence if the police officer suspects on reasonable grounds that –
(a)the person has committed or is committing the offence; and
(b)proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of a person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2)...
(3)If –
(a)a person has been arrested under subsection (1) or (2) in connection with an offence; and
(b)before the person is charged with the offence, the police officer in charge of the investigation into the offence does not have, or ceases to have, reasonable grounds to suspect that –
(i) the person committed the offence; or
(ii) for a person arrested under subsection (1) – holding the person in custody is necessary to achieve any of the purposes referred to in subsection (1)(b);
the person shall forthwith be released from custody in respect of the offence.
Detective Sergeant Wiggins agreed that it was part of the “Tactical Plan” prepared by police prior to the execution of the search warrant that the appellant and Rebecca Krutsky were to be removed from the premises during the search, but he denied this was for the purpose of allowing the deployment of the listening devices unobserved by the appellant and Rebecca Krutsky. Detective Sergeant Wiggins gave this evidence concerning his arrest of the appellant:
All right. Well, what was – what were the circumstances that justified the arrest?---Well, I suspected that he was involved in the murder of [the deceased] and that a summons would not satisfy some of the conditions, being the loss of evidence. I was concerned that by having [the appellant] present at the search warrant that he would be able to contaminate possible items within that search warrant, because he had now read the 194 search warrant. I didn’t want him going around touching items that we were potentially going to seize and get DNA analysis from. I was also concerned about the loss of forensic evidence from under his fingernails, because we wanted to get fingernail scrapings, which we got later on that day. I was also, sir, concerned about him interfering with witnesses. We were doing multiple search warrants that day, and I was concerned that if he wasn’t placed under arrest, he would have access to contact and interfere, harass potential witnesses who could have given evidence in this Court – namely Camilla Krutsky or even Mr Briskey. So, whilst that’s also said, I was also concerned that he might tamper with any messages that were on electronic devices, telephones in the area. I didn’t want anything to be deleted, so I was worried about the destruction of evidence of the search warrant, too.
From this evidence and other evidence given by Detective Sergeant Wiggins, it is fair to say that, at the time he arrested the appellant, he had no intention of charging him with the murder of the deceased and bringing him before a magistrate. His intention was to offer the appellant an opportunity to participate in a recorded interview, to await the results of the search of the premises, and to have the appellant forensically examined before determining whether to charge him. The appellant submitted that his arrest was unlawful as it was for the purposes of investigation: Williams v The Queen (1986) 161 CLR 278. He further submitted that “as a matter of inference and common sense”, the arrest facilitated the deployment of the listening devices, and, as such, the conversations recorded by the listening devices should have been excluded pursuant to s 138 of the Evidence Act:
138Discretion to exclude improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) ...
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The Crown did not concede that the arrest was unlawful, arguing that Detective Sergeant Wiggins held a suspicion on reasonable grounds that the appellant had murdered the deceased (therefore satisfying the requirements of s 212 of the Crimes Act 1900 (ACT)), and any delay after his arrest in bringing him before a magistrate for the purpose of investigating his involvement in that offence was permitted by the provisions of Pt 1C of the Crimes Act 1914 (Cth) dealing with the investigation of Commonwealth offences, which applied to the investigation of the murder of the deceased by virtue of s 23A (6) of that Act.
A similar argument to that advanced by the Crown was rejected by the New South Wales Court of Criminal Appeal in R v Dungay [2001] NSWCCA 443 (Ipp AJA, Stubbert and Greg James JJ). Part 10A (since repealed) of the Crimes Act 1900 (NSW) provided for the detention, for a limited period, of a person after arrest for the purposes of investigation. Many of its provisions were of similar effect to those of Pt 1C of the Crimes Act 1914 (Cth). The Court of Criminal Appeal rejected the proposition that the entitlement (provided by Pt 10A) to hold an arrested person while investigations were conducted meant that the police were entitled to arrest a suspect for that purpose, instead holding that the power to hold an arrested person while investigations were undertaken was contingent upon the arrest being valid. Ipp AJA noted that s 352 (1) of the Crimes Act 1900 (NSW) obliged arresting officers to take an arrested person “before an authorised justice to be dealt with according to law”. A similar provision, applying in the Australian Capital Territory, is found in s 18 (4) (a) of the Human Rights Act 2004 (ACT) (the Human Rights Act).
The learned trial judge appears to have accepted that s 212 permitted the arrest of a person where the arresting officer had a reasonable suspicion that the arrested person had committed an offence, without the arresting officer having any intention to bring the arrested person before a magistrate. If that was his Honour’s ruling (and it is not clear because he delivered no reasons), then his Honour was in error. The power of arrest granted by s 212 of the Crimes Act 1900 (ACT) is a power directed towards bringing the arrested person before a court, usually a magistrate. The provisions of s 18 (4) (a) of the Human Rights Act provide that an arrested person must be “promptly” brought before a judge or magistrate. In deciding whether an arrested person has been promptly brought before a court, any statutory entitlement of the arresting officer to hold the person for the purpose of investigation is relevant. But the availability of such provisions does not imply into s 212 the power to arrest for the purpose of questioning or other investigation. The fact that s 212 (3) contemplates an arrested person being released without charge does not support any implication that the section is intended to permit arrest for the purposes of investigation. The power of arrest granted by s 212 is granted to any police officer and is contingent on that officer having a suspicion on reasonable grounds that the person has committed the offence for which they are arrested. The obligation to release an arrested person without charge found in s 212 (3) is to be exercised where “the police officer in charge of the investigation into the offence” does not have such a suspicion on reasonable grounds, or ceases to have such a suspicion. This variance is understandable, as an officer in charge of an investigation may have, or come into possession of, information or evidence that an arresting officer did not possess at the time of arrest. The fact remains that the presence of this obligation to release an arrested person without charge in s 212 does not support any implication that the section permits arrest for the purpose of investigation.
We have come to the conclusion that the arrest of the appellant was for the purpose of investigation, to allow the police to interview the appellant and to subject him to a forensic examination. We accept that police also held concerns about the appellant contaminating evidence and interfering with witnesses if he was not isolated during the search. While Detective Sergeant Wiggins held a suspicion on reasonable grounds that the appellant had murdered the deceased at the time he arrested him, he did not believe he had sufficient evidence to charge him with the offence. Detective Sergeant Wiggins hoped that the execution of the search warrant would provide further evidence, or that the appellant would make admissions in a recorded interview. When he arrested the appellant he did not intend placing him before a magistrate to be dealt with according to law. As such, the arrest was unlawful.
The provisions of s 138 of the Evidence Act are only engaged where evidence is obtained improperly or in contravention of an Australian law, or as a consequence of such impropriety or contravention. A causal link must be demonstrated between the illegality or impropriety and the obtaining of the evidence. In the present case, this required the appellant to demonstrate that the conversations recorded by the listening devices were obtained by the police as a consequence of his unlawful arrest. This he could not do. There was unchallenged evidence that the listening devices could have been installed during the execution of the search warrant even if the appellant and Rebecca Krutsky had remained in the premises, so that it cannot be inferred that the reason for arresting the appellant was to allow for the installation of the devices. All witnesses denied that this was the reason for the appellant’s arrest. We also note that different police officers were tasked with the installation of the devices to those engaged in the search of the premises. The installation of the devices was, of course, authorised by warrant, and was clearly lawful. In the absence of cogent evidence suggesting that there was a necessity for the appellant to be removed from the premises to allow the installation of the listening devices, we are not prepared to find that the police witnesses lied on oath about this issue: Briginshaw v Briginshaw (1938) 60 CLR 336.
As a matter of law, the police conducting the search of the residence were entitled to restrict the movement of the appellant within the premises while they were conducting the search. The provisions of s 196 of the Crimes Act 1900 (ACT) authorise a person executing a search warrant to use such force against “persons and things that is necessary and reasonable in the circumstances”. An occupier of premises, such as the appellant, who is present at the time premises are being searched, is entitled to observe the search being conducted, but this does not prevent two or more areas of the premises being searched at the same time: s 203 Crimes Act 1900 (ACT). The right to use reasonable and necessary force against persons for the purpose of executing a search warrant must extend to restricting the movement of occupants or others present about the premises, otherwise the efficacy of the warrant will be greatly diminished. If an occupant wants, they may be present in one part of the premises while police are searching that part, but police executing the warrant may lawfully restrict the occupant from moving to any other area of the premises where a search is not, at that time, being conducted. If the occupant chooses not to observe the search, but wishes to stay in the premises, police executing the warrant may restrict their movements within the premises while the search is being conducted. It would therefore seem unlikely that complete removal of the appellant from the premises was necessary to allow for the installation of the listening devices. The object of the listening device warrant could have been achieved by lawfully restricting the movement of the appellant within the premises during the execution of the search warrant. The lack of demonstrated necessity to remove the appellant from the premises to allow for the installation of the listening device, together with cogent reasons for the police to want to arrest the appellant unconnected to the installation of the listening device, tells against the appellant’s submission that there was a causal connection between his arrest and the execution of the listening device warrant.
While the arrest of the appellant was unlawful, there is no basis for finding that the recordings of the conversation between the appellant and Rebecca Krutsky captured by the listening devices were obtained as a consequence of that unlawful action. The provisions of s 138 of the Evidence Act were never engaged and the evidence was rightly admitted.
In the event that we are incorrect in our conclusion (in paragraph 66 above) that the challenged evidence was not obtained as a consequence of the appellant’s unlawful arrest we adhere to our conclusion that the evidence was rightly admitted. Having regard to the relevance and probative value of the listening device evidence, the desirability of admitting the evidence plainly outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. In reaching that conclusion, we have had regard to the matters set out in s 138 (3) of the Evidence Act.
This ground of appeal fails.
Ground F: The Crown’s closing submissions on the blood splatter evidence
The appellant complained that, in its closing address, the Crown misrepresented the effect of the evidence of the crime scene investigator, Federal Agent Annette Dodsworth, concerning the blood splatter observed in unit 107, the deceased’s apartment. The Crown drew the attention of the jury to blood splatter located on the vertical side of the kitchen bench, close to where the body of the deceased was found, and said:
[T]he conclusion is that the blood source for that blood splatter was low down and we say, not to put too fine a point on it that that is certainly indicative of for example a kick being administered by the accused to [the deceased] which would cause the blood to spatter out... mechanically I suppose it could be a punch. The other evidence is against the two rolling around because of the lack of the smearing with the other blood therefore it does really indicate a kick and the blood has just spurted out and hit straight directly onto the bench, the side of the bench.
In her evidence, Federal Agent Dodsworth said that this blood had impacted the surface of the side of the bench at a 90 degree angle, indicating that the source had been low and adjacent to the pattern. In cross-examination, Federal Agent Dodsworth accepted that there were a range of mechanisms whereby a blood droplet may have velocity imparted to it. The appellant complained that Federal Agent Dodsworth was never asked whether this blood splatter pattern was indicative of a kick by the appellant to the deceased’s head.
This ground of appeal misconceives the nature of the evidence given by Federal Agent Dodsworth. As an expert in the analysis of blood stains, Federal Agent Dodsworth applied the laws of physics to the interpretation of blood splatter patterns, on the basis that blood droplets have the usual properties of projectiles in motion. The droplets of blood that caused the blood splatter pattern were in motion because force had been applied to them. In cross-examination of Federal Agent Dodsworth, the following is found concerning this blood splatter pattern:
So, for example, someone with blood on their hand, as you said, could flick it and created such a pattern?---Yes. You’d have to have some wet blood on your hand.
Yes?---On your foot, it could be from any object, yes.
So hand, foot, some sort of moving objects could create that?---Yes. The bloodied – a surface that is bloody, that’s got blood on it, and that moving could impart that – could impart that force, as well.
So it can get blood from a stationary object being struck by another object or a movement – moving object can impart velocity to the blood?---Correct.
Or it can be a combination of those things working together, of course?---That’s correct, yes.
The suggestion to the jury that the blood splatter pattern on the vertical side of the kitchen bench may have been caused by a kick to the head of the deceased is perfectly consistent with this evidence. The fact that it may also be consistent with other mechanisms is beside the point. There is no merit to this ground of appeal.
Ground G: The trial judge erred in describing the effect of the evidence of Jason Chui
It was the appellant’s case that following the altercation with the deceased he left unit 107 and encountered Jason Chui, the occupant of unit 108, in the corridor of the apartment block. He asserted he had also encountered Mr Chui some minutes previously, prior to entering the deceased’s apartment. The appellant says this evidence and its consistency with the movements of Mr Chui and the deceased were “critically important” to his case as, if Mr Chui saw the appellant as he was leaving the deceased’s apartment, his evidence:
(a)provided a timeframe of approximately five minutes in which the altercation occurred;
(b)gave an indication of the appellant’s demeanour following the altercation; and
(c)was inconsistent with any case theory that the appellant was covered in the deceased’s blood.
In his summary to the jury, the trial judge referred to a chronology of the evidence which he had prepared. In the course of doing so, he referred to the evidence of Mr Chui and others as to the times that events occurred on 18 May 2010:
I come now to 18 May 2010. At 9.19.35 pm the accused spoke with Ms Camilla Krutsky. At 9.32.59 pm the accused sent Ms Camilla Krutsky a text message, “I’m at your place now, Milky”. Ms Krutsky and Mr Jason Briskey went from Orchard Street, the unit or flat of Mr Christopher Hawley, to the Oracle Apartments to meet the accused. Police walking that distance said it took three minutes and 47 seconds. Obviously that’s from the point of leaving the Orchard Street address to arriving at the entrance to the Oracle Apartments. That’s walking at walking pace, or the police walking pace. It might be, of course, that Ms Camilla Krutsky took a little time in leaving the home of Mr Hawley and might not have walked at the same pace as police to get to the Oracle Apartments.
Mr Briskey told you that on his meeting with the accused at the Oracle Apartments he noticed that the accused was wearing a beanie, a purple scarf, gloves, tracksuit pants and he was carrying a bag.
At 3.11 pm on 19 May 2010 the last text message was sent from the deceased’s mobile telephone. At 6.04 pm that day the last outgoing call was made from the deceased’s mobile telephone. At 6.33 pm that day the last incoming call was answered by the deceased on his mobile telephone. That mobile telephone, you’ll remember, was in the jacket pocket, which was found – that is, the jacket was found lying on one of the black leather couches.
About 9.10 pm Mr Chui arrived at the Oracle Apartments. Mr Chui must be mistaken as to the time and I’ll tell you why in a minute. He took the lift from the first level car park to the fourth level. At the second level the accused, Mr Briskey and Ms Camilla Krutsky entered the lift and went to the fourth floor. You heard that they – that is, Ms Krutsky, Mr Briskey and the accused – walked ahead of Mr Chui. They went to Ms Camilla Krutsky’s apartment, Unit 110. Mr Chui went to his unit, 108.
Mr Chui told you that he discovered that his key did not open his door, so he had to return to the level one car park, retrieve a second key from his car and return to his door. He said that would take about five minutes. Police timed it at two minutes, 48 seconds. You might think that Mr Chui might not have been in the same degree of urgency as the police might have been.
Now, you know these things: at 8.50 Mr Weir left Elite Physique gym. He left before the end of the class that day. The class finished at 9 pm. After the class had finished, the deceased and Mr Margosis had a roll. That, you might think, took a couple of minutes. It was something to put into practice what they had learned during the class. Mr Margosis left the gym between 9.10 and 9.20 pm. He said that the deceased had left the gym before he left the gym. So the deceased left the gym some time between 9.00 and 9.10, at the earliest, pm.
At 9.12.49 the accused sent a text message to – no, the accused spoke to Camilla. 9.12.49 pm. That’s when he was outside the units, outside the Oracle Apartments. So assuming that time be accurate, and it comes from the telephone call charge records, Mr Chui must have been wrong about being at the units at 9.10.
In any event, at some time after 9.12.49 pm, after the accused had spoken with Camilla Krutsky, Ms Krutsky and Jason Briskey walked again from the Orchard Street flat of Mr Hawley to the Oracle Apartments. Assuming that it took not less than three minutes 57 seconds, they would have arrived closer to 9.16 pm.
So that, you might think, members of the jury, is the time at which or about the time at which Mr Chui was going up in the lift and the lift stopped at level two to allow the accused, Mr Briskey and Ms Camilla Krutsky to enter the lift. 9.16, 9.17, 9.18.
You know that the deceased would have arrived home within 17 to 22 minutes, depending upon the route that he took. If he left right at 9 o’clock, he would have reached the Oracle Apartments at 9.17 to 9.22. That would mean that he would be arriving at the Oracle Apartments, if it was 9.17, about the same time as Ms Krutsky, Mr Briskey and the accused arrived at the apartments and also at about the same time that Mr Chui must have arrived at the apartments.
If he left at 9.10, he would have arrived home at 9.27 at the earliest. Now, at 9.27 Mr Chui had arrived home, gone to his door, found that his key didn’t open his door, returned downstairs, went upstairs and passed the accused in the corridor. But that’s before the deceased arrived home, if the times are accurate. If he left at 9.10 and arrived home at 9.27, then Mr Chui had seen the deceased going up to Ms Krutsky’s apartment and then when he was in the corridor.
You don’t know exactly what time the accused entered the deceased’s apartment. In his statement of admissions he says about 9.20 pm.
Now, you know that at 9.41.05 Ms Camilla Krutsky called the accused and again at 9.45.15 she called the accused. These are taken from the call charge records.
Mr Lever heard noises emanating from level four, he said, between 8.30 and 9.30 pm. Having regard to the fact that a barstool was knocked over and the barstool has blood – and I’ll come to this – on the underside of the base of the barstool, which means that the barstool must have been on its side when blood got on the base of it, it is very likely, you might think, members of the jury, that the people who heard sounds heard the barstool being knocked over. The only way, you might think, for blood to have been on the underside of the barstool is that it was lying on its side when the blood got on it.
If that is the case, then the barstool was knocked over in the course of time when something was happening. You’ve heard the sound of the barstool when it was replicated on 8 December 2010 by Mr Ringrose. It’s a loud sound. You heard it in court. So you have the evidence of Mr Lever, who gave evidence of hearing noises between 8.30 and 9.30 pm.
Mr Bagmasbad heard noises, and he was in the same unit as Mr Lever, between 8.30 and 9.00. Assuming that he heard the barstool being knocked over at least, you might think he is mistaken as to time. Mr Clark in the adjoining unit heard noises emanating from level four between 10.30 and 11.00. Assuming that he also heard the barstool being knocked over, you might think that he is mistaken as to his times.
You know that at 9.48.45 the accused telephoned Mr Bell and you know that after Mr Bell received the telephone call – he was at the Labour Club – he returned to his unit in the Illawarra Flats and he met the accused, who was in an adjoining flat at that time, and he supplied him with heroin.
The appellant complained that this was not an accurate summary of the evidence, and in particular gave certainty to uncertain time frames. His specific complaints were:
(a)that his Honour said that the Jujitsu class finished at 9 pm, whereas the witness Jeremy Margosis said that the class generally finished about 9 pm;
(b)that the trial judge told the jury that after the class finished, the deceased “had a roll” with Jeremy Margosis, and “[t]hat, you might think, took a couple of minutes”. He said that Jeremy Margosis left the gym between 9.10 and 9.20 pm, so the deceased left the gym between 9 and 9.10 pm at the earliest. The appellant complains that the witness did not say he had a “roll” with the deceased after class, but that the evidence was that occurred in the class;
(c)that the trial judge told the jury that after receiving a telephone call from the appellant at 9.12.49 pm on 20 May 2010, Camilla Krutsky and Jason Briskey walked home from the Orchard Street flat of Mr Hawley and assuming it took them not less than 3 minutes 57 seconds they would have arrived “closer to” 9.16 pm. The evidence of Sergeant Wiggins was that it took him 3 minutes 47 seconds to walk from Mr Hawley’s residence to the fourth floor of the Oracle Apartments. The appellant also complains that Jason Briskey did not say whether he and Camilla Krutsky had left immediately after receiving the phone call from the appellant;
(d)that the trial judge then told the jury that they may think that the time at which Mr Chui was going up in the lift and it stopped at level 2 to allow the appellant, Camilla Krutsky and Jason Briskey to enter was between 9.16 pm and 9.18 pm; and
(e)that, based on the evidence of Sergeant Wiggins, it would take 17 to 22 minutes for the deceased to travel home from the gym, meaning that, if he left at 9 pm, he would have been home at 9.17 to 9.22 pm, but that if he left at 9.10 pm he would have arrived home at 9.27 at the earliest. His Honour went on to say that, at 9.27 pm, Mr Chui had already passed the appellant in the corridor “but that’s before the deceased arrived home, if the times are accurate”.
The appellant complained that the practical effect of these directions was to exclude the possibility that the appellant saw Mr Chui after he left the deceased’s apartment. This, he says, entailed an unwarranted dismissal of his account and had the potential to invite disbelief of his testimony generally.
There is no merit to these complaints. All of the times referred to by the trial judge accurately reflect the evidence, with the possible exception of the reference to it taking 3 minutes 57 seconds to walk from Mr Hawley’s unit to Oracle Apartments, whereas Detective Sergeant Wiggins said it took him 3 minutes 47 seconds. First, the difference of 10 seconds is trivial. Secondly, if anything, the supposed error favoured the appellant. Thirdly, it is clear that, by prefacing his remarks with the word “assuming”, the trial judge was not purporting to tell the jury that they were obliged to accept those figures.
Early in his summary to the jury, the trial judge gave the standard direction that the jury were the sole judges of the facts, and specifically told them:
So, members of the jury, if it should be that I express an opinion about something or it should be that you perceive what opinion it is I hold about something you must disregard my expressed opinion or what you perceive to be any opinion unless it happens to coincide with the one you form on the evidence, independently of what I say.
It is also clear that the trial judge told the jury that any conclusions flowing from his chronology were only accurate “if the times are accurate”.
A judge is entitled to comment on the evidence. In R v Zorad (1990) 19 NSWLR 91, the New South Wales Court of Criminal Appeal said:
A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury’s function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if he does not agree with their own independent assessment of the facts: Hoger v Ellis (1962) 80 WN (NSW) 869 at 875-876.
No redirection was sought either to suggest that the evidence summarised by his Honour was inaccurate or that the direction of his Honour that the jurors should disregard any comment on the facts if it did not coincide with their own independent views.
The summary of times given by the trial judge were essentially accurate. The trial judge did not purport to suggest to the jury that the times he referred to were absolutely certain. The jury would have been left in no doubt, due to his Honour’s direction to them, that they were not obliged to accept what he said to them about the facts, and that they should disregard what he said about them if it did not coincide with their own views.
This ground is not made out.
Conclusion – appeal against conviction
The appeal against conviction must be dismissed.
Appeal against sentence (ACTCA 82 of 2013)
The grounds of appeal against the sentence imposed are:
(a)that the trial judge erred in failing to consider or properly consider the relative objective seriousness of the offence;
(b)that the trial judge erred in failing to take proper account of current sentencing practice for the offence of murder;
(c)that the trial judge erred in failing to take proper account of current sentencing practice in setting a proper ratio between the head sentence and non-parole period;
(d)that the trial judge erred in failing to take into account the rehabilitative and protective functions of parole;
(e)that the trial judge made findings of fact as to the circumstances of the offence, adverse to the appellant, that were not supported by the evidence, namely that:
(i)the appellant attacked the deceased immediately upon the deceased opening the door of his unit;
(ii)the appellant did not give the deceased any time to defend himself;
(iii)the appellant knocked the deceased onto the floor of his unit and then, with the deceased lying on his back on the floor, took the deceased’s head in his hands and banged the deceased’s head onto the floor; and
(iv)the appellant left the deceased unconscious.
The starting point is to acknowledge that, in sentencing the appellant, the trial judge was exercising a discretion. The circumstances in which an appeal court may set aside a discretionary judgment were stated by the High Court in the following well-known passage from House v The King (1936) 55 CLR 499:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution to his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
It will be observed that the grounds of appeal do not allege unspecified error on the part of the trial judge in the last sense referred to in the extract from House v The King above, being that the sentence is unreasonable, plainly unjust or, as it is usually referred to, manifestly excessive. It will also be observed that grounds (b) and (c) do not allege any error on the part of the trial judge as identified in House v The King. These grounds allege that the trial judge failed to “take proper account” of certain relevant considerations, not that he failed to take account of those considerations at all. These two grounds effectively complain that the primary judge should have given greater weight to these considerations, or arrived at a different sentence based on those circumstances. As this Court observed in Islam v R [2013] ACTCA 10, such grounds effectively complain that the sentence was manifestly excessive. In Hanania v The Queen [2012] NSWCCA 220, Button J, with whom Hoeben JA and Johnson J agreed, said at [33]:
It seems to me that a ground asserting that a particular feature has not been given sufficient regard or sufficient weight by a sentencing judge is, in truth, a particular of a ground asserting that the sentence is manifestly excessive. That is because the ground accepts that some regard or weight was given to the factor, but asserts that it was insufficient. It seems to me that the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed. Such an approach leads to considerations of outcomes, not process.
It is incumbent on those who draft grounds of appeal to ensure they allege error of the type that an appellate court may review. Alleging errors that can only be relevant, if at all, as particulars of an allegation that a sentence is manifestly excessive may mislead the respondent to the appeal, and the appellate court, as to the true basis upon which the sentence is impugned. Where, as here, it is combined with a failure to allege that the sentence is manifestly excessive it is apt to embarrass all parties, not least the appellant when the appellate court simply rejects those grounds.
This Court has drawn attention to this problem of pleading grounds of appeal on a number of occasions. See Eisenach v The Queen [2011] ACTCA 2 at [42]-[44], R v Ang [2014] ACTCA 17 at [22]. The problem was addressed carefully by Gageler J in Bugmy v The Queen (2013) 249 CLR 571 at 597-8.
Ground 1: Failure to consider or properly consider the relative objective seriousness of the offence
Ground 2: Failure to take proper account of current sentencing practice for the offence of murder
In his sentencing remarks the trial judge referred to the following cases which had been drawn to his attention by the parties in the sentencing process, each being a case where an offender had been sentenced for the crime of murder:
(a)R v Eastman (SCC 111 of 1992), an unreported decision of Carruthers AJ, of 10 November 1995;
(b)R v Conway (SCC 167 of 1997), an unreported decision of Gallop J delivered 7 July 1998;
(c)R v Hillier (SCC 37 of 2004), an unreported decision of Gray J delivered 16 March 2015;
(d)R v McDougall (SCC 51 of 2011), an unreported decision of Gray J delivered 21 July 2011;
(e)R v Massey (SCC 168 of 2010), an unreported decision of Gray J delivered 28 July 2011; and
(f)R v Yuen (SCC 109 of 2011), an unreported decision of Penfold J delivered 31 May 2013.
In taking into account the sentences imposed on the offenders in these earlier cases for the purpose of determining the appropriate sentence to be imposed for the appellant’s crime, the trial judge was complying with the obligation cast on him by s 33 (l) (za) of the Crimes (Sentencing) Act 2005 (ACT) to consider current sentencing practice. It is clear that there can be no suggestion that the trial judge failed to take current sentencing practice into account, or failed to consider sentences imposed with respect to similar offences.
The appellant’s real complaint would seem to be that, notwithstanding the trial judge considering the sentences imposed in these earlier cases, he imposed a sentence on the appellant which the appellant considers too harsh bearing in mind the circumstances of his offence. In his written submissions, counsel for the appellant expressed it in this way: “The appellant’s conduct in murdering Mr Le Dinh did not call for him to be placed at the upper end of the pattern for sentencing for murder as revealed by these cases”. This is plainly a complaint that the sentence imposed was too harsh. Counsel for the appellant approached these grounds by comparing the circumstances of the offending in the earlier cases with those of the appellant with a view to demonstrating that the sentence imposed on the appellant was harsher than those imposed in “comparable” cases. The difficulty for the appellant in this approach, however, is that error is not demonstrated on the part of a sentencing judge by demonstrating that the sentence imposed is greater than that imposed in other cases. In the present case, the trial judge did not fail to take into account the “relative objective seriousness” of the appellant’s offence, nor did he fail to take into account the current sentencing practice for the offence of murder. To the extent that these grounds are relevant to any basis of appeal that may be countenanced by this Court, they could only be relevant to an allegation that the sentence imposed on the appellant was manifestly excessive, a ground which the appellant declined to argue. It is inherent, indeed, in the passage from the appellant’s written submissions quoted above that he accepts that the sentence imposed falls within the range of sentences appropriate for the offence of the murder.
The appellant fails on these grounds.
Ground 3: Failure to take proper account of current sentencing practice in setting a proper ratio between the head sentence and the non-parole period.
Ground 4: Failure to take into account the rehabilitative and protective functions of parole.
The appellant’s essential complaint is that the non-parole period imposed by the trial judge is too long. Ground 3 suffers from the same defect we identified in Grounds 1 and 2; it does not allege a failure to take into account a relevant consideration, but instead attacks the result of the instinctive synthesis process undertaken by the trial judge without alleging that the non-parole period was manifestly excessive. For this reason alone, Ground 3 must fail.
The arguments advanced by the appellant in support of these grounds were primarily directed towards the proposition that the trial judge was not in a position to accurately assess the appellant’s prospects of rehabilitation over such a lengthy sentence, and a shorter non-parole period would be sufficient to allow the Sentence Administration Board to make that assessment on the information available at the time. These arguments, directed as they are to the appellant’s prospects of rehabilitation, misconstrue the purpose of a non-parole period. In Power v The Queen (1974) 131 CLR 623, Barwick CJ, Menzies, Stephen and Mason JJ said at 627-628:
It is our opinion that the Act as a whole does not convert a sentence of imprisonment from a punishment into an opportunity for rehabilitation... It is true that, in following the legislation of other States and enacting the Parole of Prisoners Act 1966, the New South Wales legislature took a large step towards ensuring that a prisoner can, by his own behaviour while a prisoner, secure his release from confinement upon parole without serving the full term to which he has been sentenced, but the encouragement to reform so provided does not and obviously is not intended to take the sting out of imprisonment. To our minds no assistance towards the construction of the Act is to be had by considering the various objects of criminal punishment and by treating the non-parole period as retributive and the remainder of the time served in confinement as a period of rehabilitation. Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period, and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.
[emphasis added]
In Bugmy v The Queen (1990) 169 CLR 525, Mason CJ and McHugh J stated, with respect to the relationship between the head sentence and the non-parole period:
[The] considerations which the sentencing judge must take into account when fixing the minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
A prisoner’s prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence (Veen v The Queen (No.2) (1988) 164 CLR 465, at p 477), whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner’s prospects of rehabilitation. If the judge’s assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of the minimum term.
It follows from the above that the identification of the ratio of the non-parole period to the total sentence does not determine the appropriateness of the non-parole period. The appellant’s complaint that the ratio in his case, nearly 78 per cent, was higher than in other cases is, by itself, not particularly meaningful. In Conway, the ratio was 75 per cent and in Hillier it was set at 72 per cent, so that the ratio in the appellant’s case is not markedly different. The offenders in Conway and Hillier both had no prior convictions recorded against them, whereas the appellant has a lengthy criminal history and has been imprisoned on numerous occasions. At the time he commenced planning to rob the deceased, he was in prison. When he robbed and murdered him, the appellant was on parole. The appellant started offending when he was 14 years old. In 1996, he was sentenced in this Court to five years imprisonment with three years non-parole for armed robbery. In the 17 years since that sentence was imposed the appellant has spent only 7 years out of prison and has never successfully completed a period of parole since he was released on parole in 1999. In the period from 1999 to the date of sentencing, his parole had been revoked seven times. The trial judge was entitled to be pessimistic about the appellant’s prospects of rehabilitation. More importantly, the trial judge was entitled to consider that the non-parole period which he set was appropriate to adequately punish the appellant for this murder, and to act as a deterrent to him committing further serious crimes.
In our opinion, these grounds must fail.
Ground 5: The trial judge made findings of fact not supported by the evidence
5 (a): The appellant attacked the deceased immediately upon the deceased opening the door of his unit.
5 (b): The appellant did not give the deceased any time to defend himself.
The appellant complained that these findings by the trial judge were “at odds with” the version the appellant gave at trial of events between himself and the deceased on the evening the deceased died. As we have noted earlier, the appellant testified that he had been attacked by the deceased and that he, the appellant, had only acted in self-defence. The jury clearly rejected the proposition that the appellant acted in self-defence, and the trial judge, in our opinion, was entitled to reject the evidence given by the appellant about the deceased and him engaging in a fight. Any other finding, in our view, would have been irrational. The appellant was a much larger man than the deceased, which would make it unlikely that the deceased would attack him. More importantly, however, the evidence established that the appellant had embraced the proposal that he used violence in robbing the deceased when the prospect was raised by Rebecca Krutsky during the telephone call of 4 February 2010, and that he planned to attack the deceased immediately upon his answering the door. Mr Briskey gave evidence that, on the day before the murder, he heard a conversation between the appellant and Camilla Krutsky about the appellant’s plans to rob the deceased:
Basically he said that he was going to knock on the door, and if [the deceased] had answered he was going to knock him out and take what he was there for and then leave and if he’d – if [the deceased] had woken up, he was going to knock him out again.
The factual findings made by the trial judge were consistent with the statements the appellant made to Camilla Krutsky the day before the robbery and murder. The findings were also consistent with the forensic evidence. The findings were based on compelling evidence. These grounds cannot be sustained.
5 (c) The appellant knocked the deceased onto the floor of his unit and then, with the deceased lying on his back on the floor, took the deceased’s head in his hands and banged the deceased’s head on the floor.
A pathologist, Dr Paul Bedford, conducted an autopsy on the deceased. He found that the deceased suffered two fractures to the back of his head, positioned in such a way that they could not have occurred at the same time. He also found a fracture to the deceased’s nose, lacerations and bruising around his right eye, an abrasion above the left eye and a fracture of the upper cheek on the right side. Dr Bedford gave evidence of a range of mechanisms that could cause these injuries, including injuries to the back of the deceased’s skull. They all fell within the description of blunt force trauma. Dr Bedford said that the fractures to the rear of the skull could have been caused by the deceased’s skull being slammed onto a hard surface, but could also have been caused by the deceased falling backwards and hitting his head on the floor.
The fact that the two fractures to the rear of the deceased’s skull involved two distinct applications of force is problematic for the appellant. It is consistent with the appellant’s plans for the robbery, as discussed with Camilla Krutsky and overheard by Mr Briskey, that the appellant would have knocked the deceased to the ground immediately upon the deceased answering the door. If the deceased fell backwards and hit his head, this may account for one of the factures. It does not account for the second. It is fanciful to suggest that the appellant would have allowed the deceased to regain his feet before again knocking him down and causing his head to strike the floor on a second occasion. The appellant’s plan was to render the deceased unconscious and to keep him unconscious.
It follows from the above that the evidence cannot establish that both fractures to the rear of the deceased’s skull were caused in the way described by the trial judge. The trial judge was entitled to find that one of the skull fractures, the second in time, occurred through the application of force by the appellant to the skull of the deceased after he had been rendered incapacitated, or largely so, by the first skull fracture and other head injuries. Whether the second skull fracture was occasioned by the appellant kicking the deceased, or by hitting his head against the floor, is immaterial.
To the extent that the trial judge erred in finding that the deceased’s skull fractures were occasioned by the appellant hitting the deceased’s head on the floor, it was an immaterial error. The appellant inflicted the injuries, being very severe injuries requiring considerable force to effect them, on the deceased and the fact that the evidence does not allow for precise identification of the mechanism of injury does not reduce the appellant’s culpability for those injuries. In our opinion, no lesser sentence than that imposed by the trial judge is warranted.
This ground has not been made out.
5 (d) The appellant left the deceased unconscious
It may be inferred from the appellant’s plan for the robbery of the deceased that the appellant had no intention of allowing the deceased to regain consciousness while the appellant was in the apartment. This, by itself, is sufficient to support the trial judge’s findings. There was also evidence from a forensic pathologist, Dr Linda Iles, that the deceased would have most likely been unconscious immediately after the infliction of the observed injuries. A combination of this evidence and the evidence of the appellant’s plan to render the deceased unconscious and keep him that way during the robbery is more than sufficient to support the trial judge’s finding.
This ground cannot succeed.
Conclusion – appeal against sentence
The appeal is dismissed.
Orders
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
| I certify that the preceding one-hundred-and-ten [110] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Refshauge, Justice Burns and Justice Ross. Associate: Date: 8 September 2015 |
*******************************
Amendments
8 September 2015 Replace “Martin v The Queen; The Queen v Martin” with “Martin v The Queen; Martin v The Queen” At “Case Title”
8 September 2015 Replace “[2014]” with “[2015]” At “Citation”
8 September 2015 Replace “12 February 2013; 5 May 2013” with “12 February 2014; 5 May 2014” At “Hearing Dates”
8 September 2015 Replace “14 August 2015” with “13 August 2015” At “Decision Date”
5
15
5