R v Astbury (Ruling No 4)
[2018] VSC 636
•15 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: | 12 October 2018 |
DATE OF RULING: | 15 October 2018 |
CASE MAY BE CITED AS: | R v Astbury (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 636 |
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CRIMINAL LAW – Murder – Post-offence conduct – Accused moved body, fled scene and ‘resisted’ arrest – Whether reasonably capable of being viewed by jury as evidence of incriminating conduct – Whether evidence intractably neutral – R v Ciantar (2006) 16 VR 26 applied – Butler v The Queen (2011) 34 VR 165; Mocenigo v The Queen [2013] VSCA 231 considered – Jury Directions Act 2015 ss 21, 23.
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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:
Mr Astbury is charged with the murder of Rafet Demirel on 11 February 2017 at
17 Baxter Street, Coburg. It is not in dispute that Mr Astbury caused Mr Demirel’s death. What is disputed is whether his actions were conscious, voluntary and deliberate and whether he intended to kill Mr Demirel or cause him really serious injury and, if so, believed that it was necessary to do what he did in order to defend himself against death or really serious injury.
Before the commencement of the trial, the prosecution gave notice in accordance with s 19(1) of the Jury Directions Act 2015 (the ‘JDA’), of three types of conduct on which it proposed to rely as evidence of ‘incriminating conduct’, as defined in s 18 of the JDA. The notice identified the items in these terms:
The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is:
(i)The accused moved the body of the deceased from bungalow 2, 17 Baxter Street, Coburg.
(ii)Flight – the accused leaving the premises at 17 Baxter Street, Coburg after his assault of the deceased.
(iii)Resisting arrest – the accused struggling with the police at the time of his arrest on the night of his assault.
The notice went on to say that:
the prosecution relies on this conduct as helping to prove the accused did commit the offences charged. The prosecution contends it can be inferred from the accused moving the [deceased’s] body and or the [accused’s flight] and or his resisting arrest proves his consciousness of guilt.
In closing submissions the prosecution added further conduct it intended to rely upon as a particularisation of flight. That is, the evidence that Mr Astbury never contacted the police, emergency services or anyone else, including Elena Zamora, for assistance. The prosecution submits that even though the particulars were not in its original notice, the defence was not taken by surprise and there was extensive evidence-in-chief and cross-examination of Mr Astbury on this point.
The defence objected to the addition of the flight conduct on the ground of lateness and the failure by the prosecution to include the particulars in its original notice. The defence submits that, had it known this was to be a further ground or particular of flight, they may have led additional or more detailed evidence on those matters.
I do not accept that the defence was taken by surprise or that sufficiently detailed evidence was not elicited from Mr Astbury on these matters. While ideally the prosecution should have served an amended notice at a much earlier point in time, for the following reasons, nothing turns of the lateness of the additional particulars.
For the following reasons, I am not satisfied on the basis of the evidence as a whole that the three types of evidence identified by the prosecution are ‘reasonably capable of being viewed by the jury as evidence of incriminating conduct’.[1]
[1]JDA s 20(1)(b).
The test to be applied
It is convenient at this point to set out the applicable provisions of the JDA.
Section 18 of the JDA relevantly provides the following definitions:
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused –
(a)of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
offence charged includes any alternative offence.
Under s 20(1)(b) of the JDA, evidence of conduct cannot be relied on as evidence of incriminating conduct unless:
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
If a favourable determination is made under s 20(1)(b), s 21(1)(a) of the JDA sets out the directions which the trial judge must then give. The judge must direct the jury that:
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that –
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
In determining whether the evidence ‘is reasonably capable of being viewed by the jury as evidence of incriminating conduct’, the judge is deciding whether it would be reasonably open to the jury to conclude that:
(a) the conduct occurred; and
(b) the only reasonable explanation of the conduct was that the accused believed he had committed the offence charged or had not acted in the belief that he needed to do what he did in order to defend himself.
The trial judge’s task in these circumstances was summarised by Kaye J in DPP v Zhuang as follows:
The question in any case whether a jury should draw a particular inference is of course essentially a question of fact for the jury and not the judge. It is not my task to determine whether the jury should draw the inference contended by the prosecution. Rather at this stage my task is to determine whether the jury acting rationally could conclude that the only reasonable inference for the post-offence conduct indulged in by the accused is that contended for by the prosecution.
Thus, where the prosecution seeks to rely on post-offence conduct, the test for myself as the trial judge is whether the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that contended for by the prosecution, namely an awareness that she had murdered her daughter-in-law and was not acting in self-defence;
Further, the test which I must consider is not whether standing the only reasonable inference to be drawn from that conduct is that the accused acted as she did, because of a belief that she had murdered [the victim] without justification. Rather it is plain that the question must be considered in the context of all the evidence in the case, and the background circumstances to it.[2]
[2][2014] VSC 276, [21]–[23] (citations omitted).
As noted by Maxwell P in DPP v Scriven (Ruling No 4):[3]
[3][2015] VSC 220.
The pre-JDA decisions make it clear that the judge is obliged to ‘make some assessment of the plausibility of any innocent explanations’ for the relevant conduct. As the Court of Appeal said in Ciantar:
[I]f an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.
In short, the question for the judge to determine under s 24(1)(b) is whether, on the whole of the evidence, it would be reasonably open to the jury to conclude that the conduct in question could only be explained by the accused’s having had the relevant belief in his own guilt. The judge in assessing – as best he/she can – what the jury, acting rationally, would be entitled to make of the conduct, viewed in the context of all of the evidence.
In assessing competing innocent explanations, the judge is anticipating — is obliged to anticipate — how rational jurors would be likely to undertake the same exercise. But this is not a usurpation of the jury’s function. On the contrary, it is a proper safeguard to ensure that post-offence conduct is not allowed to go forward as a form of self-incrimination unless there is a rational path open to the conclusion that the conduct cannot be explained in any other way.
The putative jury conclusion is conventionally expressed — as it is in s 25(1)(b) of the JDA — as a conclusion that the incriminating explanation of the conduct is the only reasonable explanation open on the whole of the evidence. But it could equally be expressed as a conclusion that no other explanation is reasonably open. That is, the jury must be able to dismiss any innocent explanation of the conduct as untenable.
In my view, the phrase ‘intractably neutral’ as used in the cases captures one — but only one — possible result of the judge’s evaluation of the evidence. In such a case, the judge concludes that the innocent explanation and the incriminating explanation are equally plausible. Put another way, to say that conduct is ‘intractably neutral’ is to say that a rational jury could not, on the whole of the evidence, decide which was the preferable explanation.[4]
[4]Ibid [22]–[26] (citations omitted) (emphasis added).
Submissions
The prosecution contends that the conduct in question, Mr Astbury moving the deceased’s body from bungalow 2, leaving 17 Baxter Street, Coburg, after the homicide, including not seeking assistance, and resisting arrest on the night of the homicide amounts to implied admissions by Mr Astbury that when he assaulted Mr Demirel, he:
(a) intended to kill Mr Demirel or cause him really serious injury; and
(b) was not acting in the belief that it was necessary to do what he did in order to defend himself against death or really serious injury.[5]
[5]Crimes Act 1958 s 322K.
The threshold difficulty for this argument, in my opinion, is that the evidence led by the prosecution establishes no more than the following:
(a) Mr Astbury moved Mr Demirel’s body from bungalow 2 into the communal courtyard of 17 Baxter Street, Coburg, in broad daylight. Mr Astbury took a sheet from the clothesline at the premises and placed it over the deceased and left the body in the communal courtyard of the premises.
(b) Shortly after leaving the body, Mr Astbury left the premises through the front gate and in doing so encountered two of the residents of the principal house, one of which said ‘Hi’ to him.
(c) Mr Astbury was located in the evening of 11 February 2017 on Sydney Road, approximately three blocks from 17 Baxter Street, Coburg walking in the direction of the premises.
(d) Upon arrest it was said that Mr Astbury braced his arms refused to put his arms behind his back as directed by the police.
Moving the body
The prosecution submits that the post-offence conduct relevant to this ground is not that Mr Astbury moved the body with an intention to conceal it, but that he dragged the body out of the bungalow and was unable to provide any explanation as to why he did so. The prosecution submits that in those circumstances it is still incriminating conduct.[6]
[6]Transcript of Proceedings, R v Astbury (Supreme Court of Victoria, Zammit J, 1–16 October 2018) 784.25–84.31, 785.1–85.14 (‘T’).
The evidence before the jury on this point includes: Mr Astbury moving Mr Demirel’s body from bungalow 2 to the courtyard at or near bungalow 1; Elena Zamora seeing Mr Astbury move the body from bungalow 2 to the courtyard; her evidence that she saw a man dragging the body, he then let go of the body’s foot, took a sheet from the clothesline and put the sheet on the deceased; after that the man turned around and she saw that it was Mr Astbury; she then went to get her phone and when she came back to the window, Mr Astbury was gone. Mr Astbury’s evidence was that he thought he had covered the body before he knew someone was watching him; he did not have an answer or explanation for why he dragged the body down the lane; he said he covered the body with a sheet because the dead body was terrifying to look at and his reaction was to cover it.
It is not clear from the prosecution’s submission just what inference could be made of the evidence in relation to moving the body. The evidence is that the deceased knew that there were people in the main house, the kitchen looked out into the courtyard, he did not have a car to transport the body, he dropped the foot and covered the body before he knew anyone was watching him, he moved the body in broad daylight and left it in the communal courtyard. An innocent explanation of this action, such as panic and distress, is reasonably open to the jury, such that I do not consider it can constitute incriminating conduct.
Flight
The evidence before the jury on this point includes Mr Astbury’s admission that he took ‘flight’ and that, while fleeing, he knew he would have to turn himself in to the police or be arrested;[7] Mr Astbury then walks out of the property without seeking assistance from Elena Zamora or anyone else; he does not call for an ambulance; Mr Astbury leaves the premises and was seen walking from the crime scene; he then walks and runs along the Upfield bike path until he reaches Parkville; he then catches a train to Flemington and then catches a train back to Coburg station. He had no intention of returning to Baxter Street but was arrested walking towards Baxter Street; he was a few blocks from Baxter Street when he was arrested; when he initially left the premises after killing Mr Demirel, he left with no wallet, no phone, and no Myki card; in this time he knew that he had to go to the police and turn himself in or that he would be arrested.
[7]T712.18.
Flight can be powerful evidence of consciousness of guilt as it can demonstrate that a person is avoiding being seen at or near the crime scene to avoid arrest.
In this case it is difficult to see how those inferences can be drawn. He knew he had been seen by Ms Zamora. He knew arrest was inevitable. His actions were peculiar and equally consistent with a person in a panicked state. I agree with the defence that leaving the crime scene is not probative of guilt, above and beyond the offence of assault, and the evidence can go no higher than confirm Mr Astbury knew he had committed an act of violence and that Mr Demirel had died, but not that he had a murderous intent.[8]
Resisting arrest
[8]Defence’s written submissions, 12 October 2018, [17].
Resisting arrest is not commonly sought to be relied upon as consciousness of guilt. The prosecution conceded that it could not find a case where resisting arrest has been used as incriminating conduct on its own. Usually, it is a subset of assaulting police, which can be incriminating conduct. The defence rightly said that, while there might be circumstances where the nature of resistance to the arrest is such that it could assist the jury in determining guilt, such a conclusion is not open on the facts in this case.
The prosecution points to the evidence that, once the accused was advised that he was under arrest, he resisted arrest by bracing his arms and refused to put his hands behind his back. Reference is made to four police officers being involved, the arrest taking two minutes and the police advance being ‘cautious’. Mr Astbury disputes that he resisted arrest. He recalls five police, who told him to get to the ground, yet he couldn’t because they were holding him. One of the police then kneed him to the stomach. He then got to the ground, was handcuffed and put in the back of a police van.[9]
[9]T642.29.
Again, even if resisting arrest can constitute post offence conduct, I do not consider that the evidence in this case can be used to infer consciousness of guilt. The evidence falls short of being probative of intent. The evidence from one of the arresting police officers was that Mr Astbury did not run. In circumstances where Mr Astbury knew he would be arrested, and resisted in a very minor fashion, a properly instructed jury cannot reason that this is evidence of a guilty conscience. In conclusion, the prosecution is not allowed to rely on the above acts as evidence of incriminating conduct.
Section 23 JDA
Section 23 relevantly states:
(1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 12 that the trial judge –
(a) direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b) warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.
Under s 23 the Court can consider giving a s 23 direction if sought by the accused, or if the judge considers there are substantial and compelling reasons to give the direction.[10] The defence has sought a s 23 direction in relation to the moving of the body and fleeing the crime scene but not resisting arrest. I agree that there is no need for the direction in relation to resisting arrest.
[10]JDA ss 14, 16.
The prosecution’s case is wholly circumstantial. In such circumstances, the fact that Mr Astbury dragged the body or fled from the crime scene, without seeking assistance, may be treated as significant by the jury. I consider there is a real risk that the jury will use Mr Astbury’s post-offence conduct as implied admissions and so engage in an impermissible reasoning process.
As such, under s 23 of the JDA, I will give a direction to the jury that will be confined to the moving of the body and the flight.
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