R v Astbury (Ruling No 2)
[2018] VSC 592
•8 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: | 5 October 2018 |
DATE OF RULING: | 8 October 2018 |
CASE MAY BE CITED AS: | R v Astbury (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 592 |
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CRIMINAL LAW – Murder – Evidence – Character evidence – Admissibility – Accused seeking limited good character direction – Evidence confined to lack of prior convictions for violent offending – Crown proposing to call evidence in rebuttal – Evidence that accused ‘pushed’ partner on night before homicide – Whether evidence relevant – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 110, 135, 136 and 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:
Alexander David Astbury is charged with murdering Rafet Demirel on 11 February 2017 at 17 Baxter St, Coburg, Victoria. Mr Astbury admits that he assaulted Mr Demirel and thereby caused his death. However, he denies that he intended to kill or cause really serious injury to Mr Demirel, and he claims that he acted in self-defence.
At the close of the fourth day of the trial the defence foreshadowed that it would be seeking a limited direction as to good character evidence. The evidence it proposes to lead is as to Mr Demirel’s lack of prior convictions for offences involving violence. The Crown indicated that it would seek to lead evidence in rebuttal. The thrust of that evidence is that, on the night before the homicide, Mr Astbury was seen to ‘push’ his then partner, ‘with his hand to her shoulder’, causing her to ‘stagger back a bit’.
The defence object to this evidence and seek an advance ruling on its admissibility pursuant to s 192A of the Evidence Act 2008 (‘the Act’). The submissions proceeded by way of ss 55, 110, 135, 136 and 137 of the Act.
The disputed evidence
As I have said, the defence seeks a limited direction as to good character evidence, relating to the fact that Mr Astbury does not have any prior convictions for violent offending. Mr Astbury has a limited criminal history. He has been sentenced three times with respect to dishonesty offences in the early 1990s and on one occasion with respect to a minor drug offence for which he received a fine. He has not appeared or been convicted in relation to any offence since 2003.
The defence seeks a specific character direction from the Court. The direction is sought on the basis that the evidence is relevant to Mr Astbury’s credibility, and that the evidence was relevant to his likelihood of having committed the offence. The defence relies on the following evidence in support of the specific character direction:
(a) the evidence of the absence of prior convictions for violence; and
(b) the evidence from Leydi Morales and Elena Zamora that Mr Astbury had been a calm person and had a placid disposition for the time they knew him.
The Crown, in response, proposes to call a witness who says he saw Mr Astbury and his partner arguing on the night before the homicide.
The disputed passages from the witness’s statement are as follows:
[Mr Astbury] was verbally abusing her and then I saw him push her with his hand to her shoulder. She staggered back a bit.
I said to him ‘Come over and hit a man not a woman.’
He told me to mind my own business and get inside.
Several witnesses have already given evidence that Mr Astbury and his partner were involved in a dispute on the night in question. They have given evidence that Mr Astbury and his partner were shouting at each other and that he threw some items or belongings on the street and locked her out of their bungalow. The disputed evidence, however, rises much higher. It shows Mr Astbury to be not only verbally but also physically abusing his partner.
The disputed evidence is therefore of a character and complexion that needs to be handled carefully. This is especially so in circumstances where Mr Astbury is said to have done these acts in the period immediately prior to the alleged murder.
Applicable legislation
It is convenient at this point to set out the applicable provisions of the Act.
Section 55 relevantly provides:
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.
Section 110 relevantly provides:
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect.
In one respect, s 110 has not altered the position at common law, which relates to the definition to be given to ‘good character’. In Attwood v The Queen the High Court described ‘good character’ as follows:
The expression ‘good character’ has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged.[1]
This passage makes it clear that good character evidence will be relevant to the extent that it can rationally affect, i.e. disprove, the offence charged. This would naturally have to include any fact in issue that goes to the elements of the offence. It has been held that the expression ‘good character’ in s 110 has the same meaning ascribed to the expression in Attwood.[2]
[1](1960) 102 CLR 353, 359 (‘Attwood’) (emphasis added).
[2]See Stephen Odgers, Uniform Evidence Law (Lawbook Co, 13th ed, 2018) 888.
In another sense, however, s 110 has clearly altered the common law. The common law viewed character evidence as ‘indivisible’.[3] Thus, if the accused adduced good character evidence of either a general or specific nature, then the Crown could rebut it with bad character evidence of either a general or a specific nature. It was, so to speak, ‘open slather’; for this reason the defence was generally reluctant to adduce such evidence unless absolutely necessary. Further, because of the risk that the jury might misuse bad character evidence by engaging in impermissible propensity reasoning, trial judges were required to give clear directions on the permissible uses of such evidence.[4] A more relaxed approach was taken to good character evidence for the simple reason that it is unlikely to lead the jury into error and so produce a miscarriage of justice.[5]
[3]Stirland v DPP [1944] AC 315, 327 (Viscount Simon LC).
[4]See generally Donnini v The Queen (1972) 128 CLR 114.
[5]Melbourne v The Queen (1999) 198 CLR 1.
Section 110, by contrast, allows an accused to adduce good character without placing their entire character in issue. They can adduce evidence to show that they are of good character in a ‘particular respect’. The Crown is then permitted to lead evidence in rebuttal but only insofar as it goes to that ‘particular respect’. The words ‘particular respect’ have been held to mean a particular characteristic, i.e. gentleness, generosity, good citizenship, or else a particular context in which relevant conduct has taken place.[6]
[6]Bishop v The Queen (2013) 39 VR 642, 645 [8] (Redlich JA, Priest and Coghlan JJA agreeing)
An important caveat is that evidence of good or bad character is not merely relevant to credit but also to the probability that the accused committed the offence charged. Thus, in this case, the defence wish to show that the accused is of good character in the limited sense that he has no prior convictions for violent offences. The obvious inference is that, as such, he is less likely to have intended to kill or cause really serious injury to Mr Demirel. The Crown’s response must be similarly constrained. It must only adduce evidence that rebuts the proposition that the accused has no history of violence and so is less likely to have committed the offence of murder.[7]
[7]Ibid [7].
Another important caveat is that, although s 110 negates the operation of the primary exclusionary rules in the Act, it does not make character evidence automatically admissible. The evidence must still be relevant for the purposes of s 55 and, more likely to be in dispute, to be of sufficient probative value to outweigh any risk of unfair prejudice as required by ss 135, 136 and 137.[8] The Court has a general discretion under the former provisions; however, in a criminal trial such as the present, the latter provision operates with greater stringency.[9]
[8]Huges v The Queen [2013] VSCA 338 [20] (Priest JA) (‘Huges’).
[9]Section 135 provides that ‘the court may refuse to admit evidence if its probative value is substantially outweighed’ by the danger of, inter alia, unfair prejudice to a party. Section 137 replaces the word ‘may’ with ‘must’ and omits ‘substantially’. This renders it far more strict.
Section 137 of the Act relevantly provides:
In a criminal proceeding, 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 effect of s 137 for present purposes is simply to say that, even if satisfied that the disputed evidence is admissible under ss 55 and 110, this Court must exclude it unless satisfied that its probative value outweighs any danger of unfair prejudice to the accused. Thus, even though the Crown is able to rebut limited evidence of ‘good character’ with limited evidence of ‘bad character’, that evidence must not fall foul of s 137 or it will be inadmissible.[10]
[10]Huges [2013] VSCA 338 [20] (Priest JA).
For completeness, I note that, under s 136, the Court also has discretion to limit the use to be made of such evidence if there is danger that it might be unfairly prejudicial, misleading or confusing.
Submissions
For the defence
The defence did not object to the proposition that in response to good character evidence the Crown may lead evidence in rebuttal. And, in this case, the defence conceded that the disputed evidence is relevant as to whether Mr Astbury is a person of good character in the limited sense that he has no history of violence. However, for the defence, the disputed evidence gives rise to other problems that cannot be disaggregated from its rebutting purpose.
The defence submitted that, on its face, s 110 of the Act allows tendency evidence to be led to rebut good character evidence. But the defence submitted that even though s 110 negates the tendency rule, this does not mean that all evidence is admissible, especially when it is unfairly prejudicial.
The defence contrasted the evidence in this case, of a witness observing Mr Astbury pushing his partner on the night before the homicide, with that of a prior conviction some years previous. It was said that a prior conviction for violent offending would not pose any problem in terms of admissibility. Here, however, because the disputed evidence is so close in time to the killing of Mr Demirel, and hence to the question of whether at the time he had the requisite mens rea, it will likely lead the jury into impermissible propensity reasoning.
The defence submitted that the probative value of the disputed evidence is minimal at best. This is because it cannot safely support an inference that when Mr Astbury killed Mr Demirel he intended to kill him or cause him really serious injury. This is especially so in circumstances where the evidence as to ‘the push’ is unproven and it is not possible to test this evidence without calling undue attention to the issue, thus over-stepping the bounds of a strict rebuttal, creating a ‘trial within a trial’.[11]
[11]R v Jacobson (Ruling No 6) [2014] VSC 561, [31] (Kaye J) (‘Jacobson’).
The defence characterised the disputed evidence as that of uncharged acts. It was said that such acts carry a great deal less probative force in circumstances where Mr Astbury has admitted to the acts that cause Mr Demirel’s death. The disputed evidence can have but little work to do in the context of a trial like this.
The defence submitted that, while unfortunate for the Crown, the remedy is not to visit greater misfortune on Mr Astbury. It was submitted, in particular, that the damage to the Crown case is insubstantial but so is the benefit to Mr Astbury.
For the Crown
The Crown submitted that, if the defence seek to adduce good character evidence, that is a forensic decision that opens the door to rebuttal evidence.
The Crown conceded that Mr Astbury is entitled to seek a limited good character direction based on the fact that he does not have prior convictions involving ‘violence’. The Crown further conceded that, if a limited good character direction is given, rebuttal evidence should be constrained to that which proves, directly or indirectly, that Mr Astbury is not of good character in that respect. It said, in particular, that it has no intention of leading evidence of Mr Astbury’s prior convictions (none of which are for ‘violent’ offending).
The Crown submitted, however, that it should be allowed to lead the disputed evidence because it showed that in the 24 hours prior to the homicide Mr Astbury had engaged in a violent act towards his partner. This was said to be highly relevant not only as rebuttal evidence but also as making it more likely that Mr Astbury intended to kill or cause really serious injury to Mr Demirel.
The Crown drew attention to the evidence of the witnesses Leydi Morales and Elena Zamora. Both had said in cross-examination that Mr Astbury, in the 12 months prior to the homicide, had been a calm and placid person.[12] The Crown submitted, in the light of this evidence, that the disputed evidence attained greater probative value. Putting the two pieces of evidence together, it was said, revealed a powerful picture. Where previously Mr Astbury had been ‘calm and placid’, suddenly he had become violent, which lent force to the idea of his greater ‘reactivity’ when struggling with Mr Demirel in the bungalow. The Crown submits that evidence of a violent act against a female, in the 24 hours before the killing, is highly relevant to the question of how Mr Astbury reacted in relation to the triable issue in this case.[13] The Crown accept that the disputed evidence is prejudicial, but argues that its probative value outweighs any unfair prejudice.
[12]Transcript of Proceedings, R v Astbury (Supreme Court of Victoria, Zammit J, 5 October 2018) 201.14, 228.21 (‘T’).
[13]T275.3–275.10.
The Crown submitted that the disputed evidence could in fact be tested by the defence. This would be a simple case of cross-examining the witness who claims to have seen Mr Astbury push his former partner. This would go some way to curing the fact that Mr Astbury’s former partner has not and will not be called to give evidence.
The Crown submits that any risk that the jury may use the disputed evidence for an improper line of reasoning, specifically, that the fact he behaved in a violent manner towards his partner leads to an inference that he has a tendency to be violent, can be cured with an appropriate direction to the jury. Such direction would state that the only use the jury can make of the disputed evidence is in rebuttal of the good character evidence raised by the defence.
Lastly, the Crown submitted that for the purposes of s 137 of the Act, the probative value of the disputed evidence clearly outweighs any risk of unfair prejudice to Mr Astbury.
Defence concession
In reply the defence indicated that it would be willing to abandon one part of its argument. This concerned the evidence of witnesses as to the Mr Astbury being ‘calm’ and ‘placid’ in the 12 months prior to the homicide. It was said that, while this was certainly good character evidence, the central piece of evidence that the defence wished to put to the jury was that Mr Astbury has no prior convictions involving ‘violence’. Counsel indicated that he was ‘more than willing to sacrifice’ the ‘calm’ and ‘placid’ argument in pursuit of a limited good character evidence direction as to Mr Astbury’s lack of a history of violence.[14]
[14]T287.1-287.12.
Consideration
In considering whether to exclude any evidence rebutting good character under s 110, the Court must firstly consider whether the evidence is relevant and admissible, and then whether the evidence falls foul of the exclusionary rules under ss 135, 136 and 137.
As I have said, the defence was prepared to abandon reliance on the good character evidence of Mr Astbury being ‘calm’ and ‘placid’, instead seeking a limited character direction as to good character evidence on the basis of an absence of prior convictions for violence. In light of that concession, and for the reasons that follow, I consider that the disputed evidence is not admissible for the purpose of rebutting the good character evidence foreshadowed by the defence.
The defence relied specifically on s 137 of the Act. In considering the probative value of the rebuttal evidence, in this case, I must consider the potential probative value of the good character evidence that the defence seeks to rely on, for that is the evidence which the prosecution seeks to rebut.
In this case, the character evidence which is sought to be led from the informant in chief is the absence of prior convictions of violence. While Mr Astbury is entitled to have the jury told that he had no prior convictions of violence, I do not consider that such evidence is of particularly prominent significance in relation to the issues of the trial. The key issue in this case is whether Mr Astbury had the necessary intention to kill Mr Demirel or cause him really serious injury.
The jury was told in openings that Mr Astbury killed Mr Demirel and that his assault on Mr Demirel was the cause of his death. The jury has heard evidence that in the days leading up to the killing, there was an altercation between Mr Astbury and his partner. This altercation involved yelling between Mr Astbury and his partner, Mr Astbury throwing items such as clothes and a mattress from the 17 Baxter Street property onto the street, Mr Astbury stopping his partner from coming back onto the property late at night and, on the night before the homicide, his partner leaving the property at around midnight and walking towards Sydney Road.[15] There has also been evidence that in the 12 months or so before the killing, Mr Astbury was described as being ‘calm’ and ‘placid’.[16]
[15]T211.12–211.22; T243.20–244.26.
[16]T200.21–200.24; T201.14–201.15.
It is likely that the foreshadowed character evidence would support the defence case by giving rise to an inference that he is not the type of person to commit murder. In the circumstances of this case, however, I do not consider that that evidence is as significant as it might be in other cases. This is especially so in circumstances where causation is not in dispute and so the only issue for the jury is intention (and potentially self-defence). The disputed evidence is not probative in any great degree as to intention: it is not capable of supporting that kind of inference.
The Crown says the disputed rebuttal evidence is extremely probative. It was described by the Crown as ‘a violent act against a female in the circumstances of a … confrontation’.[17] The fact in issue is whether Mr Astbury is of a violent character and acted with murderous intent when he killed Mr Demirel. The disputed evidence, at its highest, is that Mr Astbury ‘was verbally abusing [his partner] and then I saw him push her with his hand to her shoulder. She staggered back a bit’. While not diminishing the seriousness of any assault, it is a push of sorts to the shoulder with his hand, which caused Mr Astbury’s partner to ‘stagger back a bit’. I cannot see how this evidence will assist the jury to infer whether Mr Astbury assaulted Mr Demirel with murderous intent.
[17]T275.5–275.7
The direction sought by the defence, consistent with the contents of the Criminal Charge Book at 4.3.3 will be relatively limited. The direction contains an important qualification, namely, that a person who has been of previous good character can commit a crime for the first time.
Even if I am wrong in this and the rebuttal evidence is probative, then I must consider whether to exclude or limit it as per ss 135, 136 and 137. Indeed, the Court has ‘an overarching obligation—not a discretion—to exclude the evidence if its probative value [is] outweighed by the danger of unfair prejudice’.[18]
[18]Huges [2013] VSCA 338 [21] (Priest JA).
The prejudice to Mr Astbury in this case of allowing the rebuttal evidence could be very great. The difficulty is that the evidence is of conduct occurring less than 24 hours from the time of the homicide. It involves evidence as to a contemporaneous uncharged act against Mr Astbury. In light of the issues at trial, the disputed evidence would add to and form a considerable part of the context or background to the homicide, which might distract the jury from its intellectual task. The jury may speculate about what the ‘push’ amounted to and how it is relevant to Mr Astbury’s intention when he killed Mr Demirel, or even whether he was a person who did or did not have a violent character.
The Crown says it will not put the disputed evidence as tendency evidence. However, given that the act in question occurred the night before the killing, ‘it would be difficult, if not logically impossible, to confine the jury’s consideration of the evidence to issues of character’.[19] I consider there is a high risk the jury would use the disputed evidence as background or context evidence of a considerable dimension and could be given disproportionate significance in the jury’s consideration of the issues that are central to the determination of Mr Astbury’s guilt. Further, in circumstances where Mr Astbury’s then partner will not be called to give evidence, the jury will have to embark upon a tangential fact-finding task in a relatively short trial, which may lead to confusion about the real issue in this case. It could amount to a significant prejudicial distraction for the jury.
[19]Jacobson [2014] VSC 561 [31] (Kaye J).
I appreciate the Crown’s submission that it is the defence’s forensic decision to put good character evidence in issue and that, pursuant to s 110 of the Act, the Crown has the right to put rebuttal evidence to the jury. However, the inclusion or exclusion of evidence is subject to the overriding balance of its probative value and any prejudice or unfair prejudice it will have on a party. Sections 55, 135 and 137 in particular are never idle and have work to do when considering the application of s 110. It is true that Mr Astbury will have the benefit of the good character evidence. Having regard to the likely direction, it will be of limited benefit compared to the unfair prejudice of allowing the rebuttal evidence. It should not be forgotten that the evidence before the jury is that Mr Astbury was behaving oddly in the days before the killing, he was arguing with his partner, he had thrown some belongings on the street and would not let his partner come back on to the property the night before the killing, and, importantly, that Mr Astbury admits assaulting Mr Demirel and causing his death. Any limited good character evidence will be evaluated in the latter factual matrix.
As Kaye J said in R v Jacobson, ‘I recognise that in a sense this is forcing the prosecution to confront the evidence … with one hand tied behind its back, and that is unfortunate’.[20] In this case, on the one hand, there is the relative weight of the limited good character evidence and, on the other hand, the prejudice which may flow to Mr Astbury from the rebuttal evidence. It is especially hard to see how any direction that I may give could cure the latter.
[20][2014] VSC 561 [34].
Conclusion
The disputed evidence may cause great prejudice to Mr Astbury and so will not be allowed. I will, however, allow the following part of the disputed evidence: ‘He was verbally abusing her … he told me to mind my own business and get inside’.
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