R v Abel, Turner & Pendergast (No 2)

[2003] VSC 469

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.  1458 of 2003

THE QUEEN

V

MICHAEL NOEL ABEL, JOHN JAMES TURNER AND WILLIAM JOHN PENDERGAST

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20–21  NOVEMBER 2003
DATE OF RULING:	25 NOVEMBER 2003
CASE MAY BE CITED AS:	R v ABEL & ORS (No. 2)
MEDIUM NEUTRAL CITATION:	[2003] VSC 469

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W Morgan-Payler QC with Ms J Condon	Kay Robertson, Solicitor for Public Prosecutions
For the Accused Abel For the Accused Turner For the Accused Pendergast	Mr R Marron Mr G Lyon Mr W Toohey

HIS HONOUR:

1. I turn then to the submissions made on behalf of Turner and Pendergast with respect to exclusion of specific passages of evidence.  Mr Lyon submitted written submissions identifying the passages which he sought to have excluded.  The Crown accepted either prior to or in the course of argument that much of this material should be excluded.  I shall comment only on the outstanding matters but I note that agreement has been reached as to objections to the evidence of McNally, Frawley and Henderson.

1. Insofar as the evidence of Peta Leigh Morris is concerned at depositions 702, 708, and 720-722, that evidence goes to the existence of a drug production relationship between Learey and Turner which the Crown asserts provided the motive for the killing.  It is in my view relevant and admissible although the weight of the evidence of this witness may ultimately be challenged as it was at the committal.  The Crown case is that the existence of a drug related dispute provided a motive for violence which would not attach to a dispute which could readily be resolved by legal means.  In my view the Crown is entitled to establish what it contends was the reality of the relationship between Learey and the man who killed him.  Insofar as the evidence may be regarded as prejudicial to Turner, its character means that its prejudicial effect is subordinate to its primary relevance.  Insofar as its prejudicial potential is said to be disproportionate to its probative weight, it is to be noted that the evidence is part only of a body of admissible evidence to like effect and in particular the evidence of Cowie at 672.  Accordingly, I rule that this evidence should not be excluded.

1. The objections to evidence of the witness at 723, 726, 727 and 728 are accepted by the Crown.

1. Insofar as the evidence of Boswell at 620 as to the conversation with Turner in December 2001 is concerned, I accept that the material objected to should be excluded on the basis that its probative weight, if any, is outweighed by its prejudicial effect.  The Crown accepts that there is no direct evidence that the amphetamine offered for sale by Turner was the property of the deceased.  The evidence is of conduct which might fit coincidentally with the Crown case but does not materially confirm it.  In my view it is of such low probative weight it should in the circumstances be excluded.

1. The objection to the evidence of Cowie at 672-673 was as I understand it not ultimately pursued.  It was accepted by Mr Lyon that this evidence could be the subject of challenge during the course of the trial.  The Crown further accepts that the evidence of the witness must be confined to relevant matters.

1. Insofar as Stuart West is concerned, the Crown will adopt an agreed formula with respect to the evidence in issue.

1. The evidence of Albert Joseph as to statements made by Abel and the demeanour of Abel is inadmissible against Turner but may go to the jury as part of the case against Abel.

1. Insofar as the evidence of Paul Smith is concerned, I have already ruled with respect to the untaped conversation with Turner referred to at deposition 551.  In my opinion it is admissible.

1. The Crown has agreed that it will not lead the unrecorded conversations with Turner referred to at depositions 548-550.

1. Mr Toohey also raised a series of objections as to matters of evidence upon which the Crown relies.  The first set of objections relates to questions 358, 359 and 360 of Pendergast's record of interview.  In my view these questions cannot be regarded as unduly prejudicial having regard firstly, to the previous specific answers given by Pendergast to questions 346ff and in particular answers 346, 350, 355 and 356.  Secondly, they cannot be regarded as unduly prejudicial having regard to the sequence of questions and answers contained in the record of interview as a whole.

1. Likewise I do not accept that question 372 was unfair having regard to Pendergast's prior statements or that evidence of it would result in unacceptable prejudice to Pendergast.

1. Objection was next made to questions 61-136 at depositions 1,119ff.  The Crown concedes that references to a jumper or windcheater believed to be that of the deceased can be deleted from the evidence with respect to material taken to the tip.  As I understand it, this meets Mr Toohey's main objection but he has reserved his right to further challenge the evidence relating to the finding of a piece of .38 calibre ammunition.

1. Further objections were made to the evidence of statements made by Abel.  These statements are inadmissible against Pendergast but Abel is entitled to place them before the jury and as I understand it Mr Marron desires the whole of Abel's records of interview to go before the jury as part of the evidence in the case against Abel.  Further, the proposed deletion of part of question 489 at p.995 of the depositions would alter the meaning of the answer, which in any event is not prejudicial to Pendergast. 

1. Specific objection was taken to references to Pendergast growing cannabis at questions 187, and 586-593 of Abel's record of interview.  I am not prepare to exclude this material if Abel's counsel desires that it go into evidence as part of his client's full record of interview.  Further, and in any event, Mr Morgan-Payler has stated the Crown has no evidence that would hinder Mr Toohey from asserting the good character of Pendergast to the jury.  Given that this is the Crown position, in my view the material complained of is of very little prejudicial effect to Pendergast's defence.

1. I so rule upon the preliminary objections as to evidence.

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