R v AB & Baker (Ruling no 2)
[2008] VSC 107
•2 April 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1545 of 2006
| THE QUEEN |
| v |
| AB & BAKER |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27, & 31 March 2008, 01 April 2008 | |
DATE OF RULING: | 2 April 2008 | |
CASE MAY BE CITED AS: | R v AB & Baker (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 107 | |
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EVIDENCE - Admissibility - Connected events – res gestae.
EVIDENCE – Admissibility - Murder charge after death in fist fight – Relevance of accused’s boxing prowess.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. N. Rose SC and Mr Lewis | Office of Public Prosecutions |
| For the Accused AB | Mr W. Stuart | Victoria Legal Aid |
| For the Accused Baker | Mr J. F. Desmond | Doogue & O’Brien |
HIS HONOUR:
Having earlier made a ruling severing the presentment, the two accused in this matter now face trial on a single charge. [1] The charge is that on 29 November 2005 they murdered Albert Dudley Snowball.
[1]R v AB & Baker (Ruling No 1) [2008] VSC 106T
The Crown case is that the two accused and other associates attended a party in a converted warehouse in Brunswick on Sunday 27 November 2005; that fights broke out inside the area of the warehouse where the party was taking place which involved, amongst other people, the two accused; and that shortly afterwards a fight occurred in a stairwell just outside the party area, which involved the deceased and the two accused. The deceased went through a window and fell to the ground below. He later died. The Crown case is that the two accused and another person had reached an agreement (albeit perhaps unspoken) to assault and cause really serious injury to persons at the party. In the course of fulfilling that agreement the Crown says they assaulted people inside the party, and the two accused assaulted the deceased in the stairway causing him to go through the window and fall to the street below. The Crown foreshadows reliance upon the concepts of common purpose, aiding and abetting, and perhaps extended common purpose.
I have heard argument prior to empanelment on a number of issues. From that argument, and from a reading of the transcript of the committals, it becomes apparent that a number of issues will be raised at trial. Whilst it will not be an issue that the two accused were present in the area of the warehouse where the party was conducted, and in the stairway, when the fighting occurred, there will be an issue as to identity, in the sense of what person performed what actions. The issue of intention will be important. The two accused will contend that the prosecution cannot prove beyond reasonable doubt a relevant intention to kill or cause really serious injury to the deceased. All of the issues concerning accessorial liability will be controversial. The issues of self defence and accident have been foreshadowed. Counsel for both accused have indicated that this is a matter where a manslaughter alternative will certainly have to be left to the jury.
The depositions include statements from a large number of witnesses to events inside the warehouse area where the party occurred. Some of those statements concern incidents which occurred some hours before the deceased went through the window in the stairwell, and some deal with events shortly prior to the fatal incident. The Crown characterises this evidence as revealing aggressive unprovoked assaults upon people by the two accused and another who was with them.
There are also statements in the depositions from witnesses who were present in the stairwell at the time of the events which culminated in the deceased going through the window. In this respect I refer to the depositions of the witnesses Brady, Arcaro, Morgan, Asfer, Doig, Stuart, and Masonga. The Crown case is that here there was a further aggressive and unprovoked assault, this time by just the two accused.
There are statements from witnesses who observed events from outside the building. In this respect I refer to the witnesses Nicholas Smith, Elton Smith and Aupetit.
There are some witnesses who have given an account which concerns, at least to some extent, the events both inside the party area and on the stairway. In this respect I refer to the witnesses Warner, Corrin, Dudding and Wise.
There are then witnesses whose accounts deal with events inside the party area, on the stairs, and outside the building. In this respect I refer to the witnesses Dodds, Philipson, and Hill.
Finally, there are witnesses who deal with events both on the stairs and outside the building. In this respect I refer to the witnesses Blanch and Moore.
My categorisation is not to be treated as a strict and rigid one, but merely as a broad indication of the nature of the evidence contained in the depositions.
Benjamin McDonald and David Mather have both made statements dealing with alleged assaults upon them by a person who was part of the group of people with the two accused. These two assaults occurred within the area of the warehouse where the party was occurring and, whilst it is difficult to be precise as to timing, these incidents do not appear to have been closely proximate in time to the fight on the stairwell which culminated in the deceased’s death. The prosecution does not seek to lead this evidence on the murder trial. Emah Fox’s deposition describes an incident which allegedly occurred between her and one of the persons with the two accused. Again, this incident does not appear to have been closely proximate in time to the incident in the stairwell. Whilst initially seeking to lead that evidence, during the course of argument counsel for the prosecution did not persist in that course.
What counsel for the prosecution now wishes to do is to call evidence addressing the events from approximately 3.00 am in the morning when two of the witnesses, Alicia Mladenov and Kerry Awerbuck, were allegedly accosted by a person on the dance floor which prompted them to go to where two friends of theirs, Neil Rainey and Lincoln Walker, were standing. Neil Reaney and Lincoln Walker were involved in fighting shortly after the two girls came up to them. The evidence the Crown wishes to lead will then proceed to address the fighting involving Neil Reaney and Lincoln Walker; what I think may be fairly described as a melee that occurred thereafter; the various movements of persons including the two accused towards and through the doors between the area of the warehouse where the party was occurring and the stairway; and then to the fight on the stairway which culminated in the deceased going through the window.
Counsel for the accused AB,[2] Mr Stuart, supports this approach. Mr Stuart maintains that the events on the stairway cannot be properly understood unless the evidence in relation to the fighting shortly before that, inside the area of the warehouse where the party was occurring, is also the subject of evidence.
[2]The accused AB was under 18 years age at the time of the commission of the alleged offence.
Mr Desmond, on behalf of the accused Baker, objects to the admissibility of any evidence dealing with matters prior to the events on the stairway.
The first issue I must now decide is to determine whether the Crown should be permitted to lead evidence of what occurred inside the area of the warehouse where the party was occurring shortly prior to the events in the stairway.
In order to properly assess the issue it is necessary to refer in a little detail to the evidence of some of the proposed witnesses.
John Corrin attended the party. In his deposition Mr Corrin gives a detailed account of events which appear to me to include the fighting with Neil Reaney and Lincoln Walker and the ensuing melee. Mr Corrin then refers to persons involved in that fighting (including the two accused on the Crown case) moving out of the party area towards the stairwell area. His deposition continues:
“I went to follow them out and I came to the doorway which leads to the landing at the top of the stairs. There was a girl at the door and she was holding it shut. I said to her ‘Let me out’. She said ‘No. You don’t want to go out. There’s a big fight out there’.
I was looking through the window and I could see shadows attacking each other. By shadow I mean that I could make them out but not what they were wearing because of the frosted glass. I could see two shadows attacking one shadow. They probably would have been about a metre from the window that the guy eventually fell through. It was only a very short time between the fighting on the dance floor and the fighting on the stairwell. It was like one continual fight as they were leaving the place. The fight on the landing probably went on for 30 seconds at the most. I could hear shouting through the door but I couldn’t make out any words.” [emphasis added]
The girl who was holding the door was another witness, Kelly Warner. In her deposition Kelly Warner also gives an account of a fight inside the party area shortly prior to people moving out to the stairwell. According to her deposition she was herself assaulted in the course of that fighting. She then describes moving to a position near the stairs, attempting to persuade other people to intervene in the fight, and attempts she made to call the police on her mobile phone. Whilst she was talking to two other people near the entrance about calling the police, a group (including the two accused on the Crown case) came out into the stairway area. She continues:
“They were then on the other side of the door near the stairs and I then closed the door and held it shut so they couldn’t get back in. One of them tried to get back in and someone told me that I shouldn’t stand near the door because they will probably smash the glass in, the glass on the door.
Then it seemed to go quiet and I opened the door and there was a big hole in the window above the stairs.”
Paul Philipson and his friend Emily Dodds also saw the fighting which occurred inside shortly prior to the stairwell incident. They began making their way out of the warehouse in response to seeing that melee. Emily Dodds, like Kelly Warner, was trying to call the police on her mobile phone. It was while she was on the mobile phone on the stairwell doing this that Philipson says the following happened:
“I got down to the landing halfway down the stairs. As I got there the door leading into the warehouse flew open and I saw the African without his top on come through the door.”
The two accused and some of the people who were part of their group are of an African background. Philipson then describes telling Dodds to move quickly out into the street. He says that they quickly left the building, went around the corner, and hid behind a car in a car park. He says: “Within seconds I heard glass break.”
The Crown position is that the events beginning at approximately 3.00 am inside the area of the warehouse where the party occurred and the events on the stairway are one transaction, or are a connected series of events, and that it will be impossible for the jury to properly understand what occurred on the stairway unless they know what occurred inside shortly before that. The Crown submits that the evidence is relevant to an understanding of the events on the stairway, to the issue of the intention of the two accused, and to the accessorial issues, particularly the existence or otherwise of a common purpose. As I indicated, counsel for the accused AB supports this analysis.
Counsel for the accused Baker described the evidence of what occurred inside the area of the warehouse where the party took place as “rank propensity evidence”. He conceded that some brief account of what had occurred inside the party area might be led so as to provide context but that detailed evidence of what occurred from approximately 3.00 am onwards should not be permitted to be led.
The Crown position involves the principles of admissibility sometimes referred to by reference to the expression res gestae.
In O’Leary v The King[3] the High Court considered the admissibility of evidence on this basis. O’Leary is still referred to by the leading Australian text on evidence as the leading case in this area.[4]
[3](1946) 73 CLR 566 (“O’Leary”).
[4]Cross on Evidence , LexisNexis, at 31 March 2008, para 21050.
In O’Leary a person in a timber camp was murdered after what was described as a drunken orgy. He was struck on the head seven or eight times with a bottle after which kerosene was poured over him and his clothes were set on fire. The accused was found guilty of his murder. At the trial evidence was admitted that the accused had at various times during the drunken orgy violently assaulted other people. The drinking session in that case had begun on a Saturday morning and the deceased’s body was discovered on the Sunday morning. The evidence admitted included evidence of assaults on other persons during the afternoon and evening. The deceased had accompanied one of the victims of these earlier assaults to hospital and had then returned to his own quarters at about midnight and apparently locked his door. There was no evidence as to the deceased’s movements or whereabouts after that until his body was discovered at 5.30 am the next morning. There was no evidence that the accused was in the deceased’s company or spoke to him at any time after 6.00 pm on the Saturday.
All of the members of the High Court in O’Leary found that the evidence was rightly admitted, with the exception of McTiernan J. Latham CJ held the evidence admissible because the other incidents were constituent parts or ingredients of the transaction itself and made intelligible the course of conduct pursued.[5] Latham CJ held that this was not a case of similar fact evidence.[6] Rich J adopted an analysis substantially the same as that of Latham CJ. He said that the various circumstances “form inseparable features of a transaction consisting of connected events.”[7] Starke J disagreed with the proposition that the relevant events were so closely connected as to form one chain of facts. He held that the evidence was admissible on a similar fact basis.[8] Dixon J held that all of the various assaults were “a connected series of events … which should be considered as one transaction”.[9] He said that without evidence of the earlier assaults “the transaction of which the alleged murder formed an integral part could not be truly understood”.[10] Williams J also held that the evidence was admissible on the basis that the other incidents were part of a connected series of events.[11] McTiernan J dissented holding that the evidence was not admissible as being part of a connected series of events and nor was it admissible on a similar fact basis.[12]
[5](1946) 73 CLR 566, 575, referring to Dixon J in Martin v Osborne (1936) 55 CLR 367, 375.
[6]Ibid 576.
[7]Ibid.
[8]Ibid 576 - 577.
[9]Ibid 577.
[10]Ibid.
[11]Ibid 582.
[12]Ibid 578 – 581.
The cases dealing with admissibility on the res gestae basis were reviewed in some detail by McHugh J in Harriman v The Queen.[13] In that case an accused had been charged with being knowingly concerned in the importation of heroin. It was alleged that he and an accomplice bought heroin in Thailand and arranged for it to be sent to Australia. In substance, the defence was that the accomplice had acted alone. The Crown was permitted to lead evidence of the accused’s involvement with the accomplice in a joint sale of heroin on another occasion. There were also issues raised concerning the admissibility of evidence of prior use of heroin and reliance upon letters written by the accused.
[13](1989) 167 CLR 590 (“Harriman”).
McHugh J held that the evidence of the prior heroin sale had been rightly admitted on the basis that it was circumstantial evidence which tended to prove that the accused and his accomplice had acted in concert to import the heroin on the occasion which was the subject of the charge.[14] McHugh J explained that the general rule is that evidence proving that an accused has been guilty of some other criminal acts is not admissible if it does no more than prove the accused has a general criminal disposition which makes it likely he committed the offence charged.[15] McHugh J said that there is an important distinction to be drawn between evidence of facts forming part of the same transaction as that under inquiry on the one hand, and circumstantial evidence which tends to prove a fact in issue on the other. Where the latter is the case, the circumstantial evidence can only be admitted where its probative force clearly transcends it prejudicial effect.[16] But, where the evidence is properly analysed as being evidence of facts forming part of the same transaction as that under inquiry, that is not the case. McHugh J said:
“If evidence which discloses other criminal conduct is characterised as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility.”[17]
[14]Ibid 627.
[15]Ibid, referring to Makin v Attorney General (NSW) [1894] AC 57, 65; Makby v The Queen (1978) 140 CLR 196, 116; and Sutton v The Queen (1984) 152 CLR 528, 545, 556.
[16]Ibid 628, 632 referring to Perry v The Queen (1982) 150 CLR 580, 609.
[17]Ibid 633.
McHugh J analysed in some detail prior cases which had been decided on the basis that the evidence in question was evidence properly characterised as part of the transaction embracing the crime charged, or as part of the res gestae. One of those cases was O’Leary. The cases McHugh J analysed were all cases where evidence had been admitted concerning events which were not immediately proximate in time to the occurrence of the crime charged. The temporal connection was closer in O’Leary than in most of the others. McHugh J suggested that all these cases, including O’Leary, should now properly be regarded as cases dealing with circumstantial evidence and not as res gestae cases.[18]
[18]Ibid 634.
The other members of the High Court in Harriman did not deal with this issue, or dealt with it in a much less extensive manner than did McHugh J. Brennan J referred to it indicating that he agreed with McHugh J that evidence properly seen as of the res gestae type was admissible, but he indicated that he did not agree with the usefulness of the “circumstantial” classification used by McHugh J.[19] Dawson J addressed the issue of the circumstances in which propensity evidence may be admitted but did not refer to the res gestae authorities. Gaudron J did not refer to the res gestae cases. Like McHugh J, Toohey J referred to the res gestae cases as being in a separate category to those properly characterised as being concerned with propensity.[20]
[19]Ibid 594.
[20]Ibid 606-7.
If the majority approach in O’Leary is applied without qualification the evidence in issue here is clearly admissible.
Further, in my view the evidence in question here is properly to be regarded as part of the res gestae even if one takes the stricter approach to the characterisation of such evidence which is suggested by McHugh J’s judgment in Harriman. The general circumstances which existed in O’Leary are relevantly similar to those here, but here the evidence is more proximate in time than the evidence which was admitted in O’Leary, and here there is a stronger foundation for characterising the relevant matters as one continuous sequence of events. In my view McHugh J’s misgivings as to whether O’Leary really was a res gestae case would not apply here.
My conclusion is that this evidence is admissible because it is relevant to each of the issues which the prosecution (and counsel for the accused AB) contend that it is. In my view the following observation of Dixon J in O’Leary is directly applicable:
“Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.”[21]
[21](1946) 73 CLR 566, 577.
If I am wrong in this conclusion, and McHugh J’s analysis of circumstantial evidence in Harriman applies, requiring that the evidence should only be admitted if its probative value transcends its prejudicial effect, my conclusion is that the probative value of the evidence subject to objection does transcend its prejudicial effect. Indeed, I am concerned, and my apprehension is that Mr Stuart for the accused AB is similarly concerned, that if the evidence is not permitted to be led there will be a significant danger of the jury either being misled as to how the events on the stairway came about, or being left in a state of utter confusion as to how those events came about.
My conclusion is that the Crown can lead the evidence which it wishes to lead concerning the events commencing at approximately 3.00 am with the incidents on the dance floor involving Alicia Mladenov and Kerry Awerbuck.
Before leaving this issue, I record that Mr Stuart did make it clear that even if I had ruled in favour of Mr Desmond’s objection, he would have sought to elicit the same evidence in cross-examination. Mr Desmond said that if that did occur he would be powerless to prevent it.
A second issue of disputed evidence also concerns an objection by Mr Desmond. At page 992 of the depositions there is a statement by Ron George Pengelly, the Competition Manager Boxing for the 2006 Commonwealth Games. He says that he attended the Australian Boxing Championship in Perth from 31 March to 3 April 2005. He says he saw the accused Baker win the junior 69 kilogram weight category of the Australian championships. He says that this in effect means that Mr Baker was at that time the Australian Junior Champion boxer for his weight category.
Mr Desmond objects to this evidence on the grounds that it is merely propensity evidence and that it is irrelevant.
The Crown disavows any intention to rely on the evidence as propensity evidence. The Crown says that establishing that the accused Baker has considerable prowess as a boxer is relevant to determining whether he had an intention to cause really serious injury to the deceased and is also relevant to determining what did happen in the stairwell.
Mr Desmond submitted that the matter was not relevant to those issues and that in any event the fact that the accused Baker holds a title does not establish any relevant capabilities. He also suggested that Mr Pengelly’s statement is opinion evidence and that it was not in admissible form.
It seems to me that there are two issues to be resolved here. The first is whether it is relevant to prove that the accused Baker was a person possessed of prowess in fighting with his fists and a person with the capacity to control and manoeuvre a person he is fighting in a fist fight. These are characteristics which it might be thought a champion boxer would possess. The second issue regards the appropriate way in which that prowess can be proved.
In my view it is relevant to the issues in the case to establish that the defendant Baker had prowess in fighting with his fists and had the capacity to control and manoeuvre a person in a fist fight. The issue of intention and the circumstances which led to the deceased going through the window are central to the case. The existence of prowess in the matters to which I have referred are capable of being treated as rendering it more likely that the accused Baker intended really serious injury and of negating the proposition, which has been foreshadowed, that what occurred was an accident.
The issue of how the accused Baker’s prowess is to be proved is a separate matter. I will hear further argument on that matter. It may be desirable to hear Mr Pengelly on voir dire.
There is one final matter I need to record at this stage. In the course of pre-trial argument Mr Desmond made a number of complaints about the manner in which the Crown was foreshadowing reliance upon extended common purpose. At one point senior counsel for the Crown suggested that he intended to refer the jury to that concept in opening. Mr Desmond at that point objected saying that if the Crown did so, and if the evidence then revealed that that could not be borne out, that he may seek a discharge of the jury. Senior counsel for the Crown then resiled from that position suggesting that the issue of extended common purpose would not be opened, and could be left until after the evidence had been called and the position analysed in the light of that evidence. Mr Stuart for the accused AB supported this approach, foreshadowing at the same time that his assessment is that this is not a case where extended common purpose would be open. Whilst initially resisting that approach, Mr Desmond then agreed with Mr Stuart that the issue should be left until after the evidence has been called. He accepted that both he and Mr Stuart are on notice that the Crown may rely upon extended common purpose. The Crown is on notice that both defence counsel maintain that extended common purpose is not open here.
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