R v Astbury (Ruling No 1)
[2018] VSC 577
•2 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0290
| THE QUEEN |
| v |
| ALEXANDER DAVID ASTBURY |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 October 2018 |
DATE OF RULING: | 2 October 2018 |
CASE MAY BE CITED AS: | R v Astbury (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 577 |
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CRIMINAL LAW – Murder – Evidence – Witnesses’ observations of accused in days before alleged murder – Observations suggestive of a ‘dislocated emotional state’ – Whether observations relevant – Relevant to intention and to self-defence – Whether probative value outweighed by danger of unfair prejudice – Risk of prejudice manageable with curial directions – Evidence Act 2008 ss 55, 135, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Walmsley QC with Mr S Devlin | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr T Marsh with Ms E Ramsay | Victoria Legal Aid |
HER HONOUR:
Introduction
Alexander David Astbury (‘the accused’) is charged with having murdered Rafet Demirel (‘the deceased’) on 11 February 2017 at 17 Baxter Street, Coburg, Victoria. One part of the Crown case is that, on the previous day, the accused and the deceased had talked about the former’s ongoing conflict with his partner, which had attracted the attention of several neighbours.
On 11 February 2017, the accused attended at the deceased’s home, which was the second bungalow out the back of 17 Baxter Street. During that meeting he assaulted the deceased. The accused admits that this struggle occurred and, further, that it caused the deceased’s death. There is therefore no issue as to causation in this trial.
The central issue at trial will be whether the prosecution can prove beyond reasonable doubt that the accused intended to kill or cause really serious injury to the deceased. Another issue will be whether the accused killed the deceased in self-defence.
The Crown have indicated that they will rely on a combination of circumstantial evidence to prove the accused had the requisite intention for murder. This includes post-mortem evidence from a pathologist and blood pattern analysis. The Crown also seeks to rely on evidence from four lay witnesses who observed the actions of the accused in the days before and, in particular, the day of the homicide.
The defence objects to some of the evidence of the abovementioned four lay witnesses. The objection, as I understand it, is that the evidence is not relevant and, even if it were, its probative value is outweighed by the risk of unfair prejudice to the accused. The submissions were couched in the terms of ss 55, 135 and 137 of the Evidence Act 2008 (‘the Act’).
The disputed evidence
It is necessary to set out in some detail the evidence that is in dispute. As I have said, the defence objects to the observations made by four witnesses of the accused in the days prior and, in particular, on the day of the homicide. The observations include, among other things, that the accused was:
(i) talking to himself;
(ii) bashing his head against a wall; and
(iii) hitting the sides of his head and saying ‘jealous, jealous’.
Particular objection is taken to those witnesses who refer to the accused as ‘crazy’ or the ‘crazy man’ or voice the opinion that he ‘must have mental problems’.
The Court was taken specifically to the following evidence:
(a) the witness statement of Fatma Demirel (the deceased’s wife):
I overheard Alex talking in the bungalow. I think he was talking to himself … because I didn’t see anyone else inside the bungalow.[1]
[1]Statement of Fatma Demirel dated 9 March 2017 [12].
(b) the witness statement of Leydi Morales:
we call him ‘the crazy man’ as we don’t know his name, maybe Alex, and he always talks to himself. The previous night he was talking to himself a lot.[2]
[2]Statement of Leydi Morales dated 11 February 2017, 10.
(c) the witness statement of Edgar Andres Sosa:
I also asked him about the belongings out the back. He mumbled back at me and I did not understand him, but he hit the sides of his head with his fists and kept saying ‘jealous, jealous’. He then walked back towards his home. …
We arrived home at about 1:20pm [on 11 February 2017] and I had a shopping cart. When we got home the crazy man was out the front. He was very happy and offered to help me lift the trolley inside. He was laughing and joking about having muscles. …
I decided to go out into the backyard and clean the grill for the barbecue. When I was cleaning the grill, he was behind me and bashing his head on the wall, over and over again. He had his hand in a fist near his mouth.[3]
[3]Statement of Edgar Andres Sosa dated 11 February 2017 [11]–[13].
(d) and the witness statement of Elena Zamora:
I think they [the accused and his partner] both have mental problems.[4]
[4]Statement of Elena Zamora dated 11 February 2017, 2.
Following submissions the parties provided the Court with a redacted statement by Fatma Demirel. The redacted statement no longer contains the passage excerpted above. Nevertheless it gives the flavour of the evidence in dispute.
Submissions
The defence objects to these representations on the basis that they are irrelevant and cannot meet the standard established by s 55 of the Act. Counsel contended that, even if the evidence is found to be relevant, it should be excluded under either s 135 or s 137 of the Act. In other words, it should be excluded because it creates a risk of unfair prejudice to the accused, which is not outweighed by its probative value.
The defence concedes that the broader evidence as to the accused arguing and fighting with his partner, which disturbed the other residents at 17 Baxter Street, is relevant and admissible. Counsel did not seek to challenge the fact that the accused had a heightened emotional state in the period prior to the homicide. Nor that the deceased’s wife asked him to intervene in the dispute between the accused and his partner. It was said that these were neutral, uncontroversial facts, which form part of the necessary narrative and context for the jury.
The defence submitted that the probative value of the dispute evidence is limited. The observations of the witnesses are piecemeal and do not present a coherent picture of the accused’s mental state carried through to the day of the homicide. Further, when taken together, the disputed evidence is suggestive of someone who is suffering from a mental disturbance. This may lure the jury into a ‘seductive line of reasoning’: that such a person is more likely to have intended to murder or cause really serious injury to the deceased.
The defence submitted that such considerations are not relevant to what the accused was thinking at the actual time of the homicide and will not assist the jury in discharging their duties in an impartial and fair-minded fashion. If anything the disputed evidence will tempt the jury to engage in speculative ‘gap filling’ as between the accused’s heightened emotional state and what happened in the bungalow between the accused and the deceased.
The Crown has agreed, sensibly in my view, not to lead any evidence that refers to the accused as ‘crazy’ or ‘the crazy man’. It has also indicated that it will not press any of the opinion evidence by the lay witnesses. For example, this would be applicable to where Mr Sosa said, ‘I assumed [the accused] was upset because he missed his wife’, and also to the abovementioned representation by Ms Zamora that the accused and his partner ‘both have mental problems.’
The Crown submitted that the disputed evidence is directly relevant to the accused’s state of mind at the time of the homicide. It is therefore relevant to the element of intention in the offence of murder and also to whether the accused was acting in self-defence. As to the latter, in particular, the Crown submitted that any evidence as to the accused’s mental state will be highly relevant as it will affect the jury’s ability to assess whether he believed it was necessary to defend himself from a threat of death or really serious injury.
The Crown submitted that, in relation to the charge of murder, the accused’s ‘dislocated emotional state’, as evidenced by his speaking to himself, beating his head against a wall and having his fist to his mouth, is evidence that, if it were accepted, could rationally affect the assessment of the probability of a fact in issue, namely that the accused intended to kill the deceased, or else intended to cause him really serious injury. The Crown stressed the word ‘could’ in the phrasing of s 55 of the Act as indicating that the evidence need only be capable of being used by the jury in a relevant way.
The Crown lastly submitted that the disputed evidence is much more than minimally probative. Senior counsel pointed out that evidence which paints the accused in a negative light may be ‘prejudicial’; however, in this case, it was not ‘unfairly prejudicial’ as per ss 135 and 137 of the Act. Senior counsel noted that the Court of Appeal has repeatedly held that juries are assumed to follow curial directions and that, in this case, the risk of them misusing the disputed evidence is more than capable of being managed with appropriate directions.
Consideration
Section s 55 of the Act reverently provides that:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
This definition directs attention to the capacity rather than the weight of the evidence. I note also that the Dictionary to the Act defines ‘probative value’ to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’ Relevance and probative value are thus conjoined concepts in the law of evidence.
Section 55 of the Act requires a minimal logical connection between the evidence and a fact in issue. Relevant evidence need not make a fact in issue probable or sufficiently probable; it is enough if it can make the fact in issue more or less probable than it would otherwise have been.[5] Relevance is a relative concept that must be assessed in the context of the whole of the evidence tendered in the trial. A piece of evidence may be relevant even if, taken on its own, it is not capable of establishing guilt.[6] However, the evidence must be relevant to a fact in issue, which is certainly the case here. The disputed evidence is capable of rationally affecting the jury’s assessment of the probability of whether the accused intended to kill or cause really serious injury to the deceased. Further, it is also relevant to whether the accused acted in self-defence, both as a defence to murder and to the alternative charge of manslaughter.
[5]Festa v The Queen (2001) 208 CLR 593, 599 [14].
[6]Marsh v The Queen [2015] NSWCA 154 [54]–[56].
I consider the evidence in dispute is relevant for the purpose of s 55 of the Act. The evidence in dispute occurred, in Mr Sosa’s case, on the day of the homicide. In fact, his observations of the accused bashing his head on a wall and having his hands in a fist near his mouth, were made in the hour or so immediately before the homicide. The accused’s emotional state is, in my view, capable of affecting the jury’s assessment of the probability of the accused’s state of mind, and therefore intention, at the time of the homicide.
The enquiry must be how the evidence might affect findings of fact. The evidence, taken at its highest, is that the accused had a labile and volatile mental state in the days prior to and, in particular, on the day of the homicide. It would be inappropriate to allow only the evidence of the accused appearing to be happy and content at the time he spoke to Mr Sosa (shortly before 1.20 pm on the day) and to exclude other evidence on the day, and in the days beforehand, depicting a very different persona. The disputed evidence is an important part of the narrative and context that the jury will need in order to make a proper assessment of whether the accused had the requisite intention to kill or cause really serious injury to the deceased. It is, once again, also relevant to the question of self-defence.
The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Any facts that are (directly or indirectly) relevant to the accused’s state of mind at the time of the homicide are prima facie relevant. Here those facts include information about: the relationship between the accused and the deceased; the events leading up to the homicide; the possible presence of a motive; and, most importantly, the accused’s emotional state in the proceeding day or days. I am satisfied that the disputed evidence, since it speaks to the accused’s ‘dislocated emotional state’, is capable of affecting the jury’s assessment of his intention to kill or cause really serious injury.
The defence argues that, even if the evidence is relevant, it should be excluded pursuant to ss 135 and 137 of the Act. These sections operate to exclude evidence that is logically probative under s 55 but insufficiently probative when considered against a number of policy concerns. The foremost of these, for present purposes, is that the evidence will cause unfair prejudice to the accused. Section 137 relevantly provides that the Court:
must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
The use of the word ‘must’ distinguishes s 137 from s 135 which, although couched in similar terms, uses the word ‘may’ and thus does not confine the Court’s discretion to admit or refuse the evidence as it sees fit.
As s 137 is the stronger provision, I shall refer to it rather than s 135, even though both sections were referred to by counsel.
Section 137 requires the court to undertake a balancing exercise between the probative value of the evidence and the danger of unfair prejudice to the accused. For the reasons set out above, I do not agree with the defence that the probative value of the evidence is limited, or at best minimal. As I have said, I consider the probative value of the disputed evidence to be sufficiently high, certainly high enough to rationally affect the probability of the existence of a fact in issue. The facts in issue that it may affect are, moreover, twofold: the evidence seems relatable to both intention and/or to self-defence.
The reasons of the majority of the High Court in IMM v The Queen (French CJ, Kiefel, Bell and Keane JJ) state that:
The use of the term ‘probative value’ and the word ‘extent’ in its definition rests upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.[7]
Applying the reasoning of the majority, in this case, the disputed evidence, if accepted, would not amount to a necessary or sufficient condition for the existence of a fact in issue. It is merely circumstantial evidence that may strengthen an inference when taken in conjunction with other evidence.
[7](2016) 257 CLR 300, 313–4 [45].
In relation to the weighing exercise, the probative value goes to the proof of the facts in dispute, whereas the danger of unfair prejudice goes to the fairness of the trial and, in this case, to the risk that the jury may in some way misuse the evidence and so give rise to a substantial miscarriage of justice.
In considering the weighing exercise for s 137 of the Act I am persuaded that any problems arising from admitting the evidence may be mitigated by appropriate directions to the jury.
Conclusion
For the above reasons I consider the disputed evidence is relevant and admissible. The admissible evidence includes the observations by witnesses of the accused in the days prior to and the day of the homicide, such as the accused talking to himself, bashing his head against a wall over and over again, and the accused hitting the sides of his head with his fists and saying ‘jealous, jealous’. For the avoidance of doubt, any reference to the accused as ‘crazy’ or a ‘crazy man’ is not admissible, nor is any opinion evidence such as that referred to earlier in this ruling.[8]
[8]See [13] above.
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