R v Basham (Ruling No 4)
[2022] VSC 108
•7 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0229
| THE QUEEN | Crown |
| v | |
| ADRIAN JAMES BASHAM | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2022 |
DATE OF RULING: | 7 March 2022 |
CASE MAY BE CITED AS: | R v Basham (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 108 |
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CRIMINAL LAW – Evidence – Accused charged with murder – Deceased was the estranged wife of the accused – Deceased found hanged in the garage of the former matrimonial home.
EVIDENCE – Incriminating Conduct - Post-offence conduct – Prosecution seeks to rely on CCTV footage of the accused leaving the former matrimonial home – Prosecution seeks to rely on evidence of the accused asking witnesses not to cooperate with police – Whether reasonably capable of being viewed as evidence of incriminating conduct – Jury Directions Act 2015 (Vic) ss 18, 19, 20.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N Rogers SC with Mr L Cameron | Office of Public Prosecutions |
| For the Accused | Mr A Halphen with Ms A Beech | Slades & Parsons Criminal Lawyers |
HER HONOUR:
The accused is charged with the murder of his estranged wife.
By document dated 8 September 2021 and pursuant to s 19(1) of the Jury Directions Act 2015 (Vic) (‘JDA’), the Crown has given notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct in the trial of the accused. That notice details some 12 items of evidence.
Two items are not pressed by the Crown. The defence does not object to the admissibility of six items and intends to make submissions as to the permissible use of that evidence at the conclusion of all of the evidence in the trial. It follows that this Ruling is limited to four items, [1] namely:
[1]This Ruling adopts the item numbers used in the Notice.
b. The accused was captured on CCTV footage running away from 19 Seagrove Way, north along the eastern footpath past 13 Seagrove Way at 12.04pm.
c. The accused was captured on CCTV footage wearing the two-toned blue hooded jacket with the hood up as he ran away from 19 Seagrove Way at 12.04pm.
d. The accused was captured on CCTV footage with his hands in the pockets of his jacket and appeared to have an item stuffed up the front of this jacket as he ran away from 19 Seagrove Way at 12.04pm.
k. At approximately 11.00am on 28 July 2018, the accused attended at Park Road, San Remo and approached the premises at 4 Park Road, San Remo. At this time, police investigators were taking written statements from two witnesses, Cameron Brown and Elizabeth Antonovich, at different addresses on Park Road. The accused separately approached both Brown and Antonovich in the presence of police investigators and told them not to cooperate with police.
The defence does not object to the admissibility of items b., c. and d. but, as the CCTV evidence is static, makes arguments as to the use of the evidence in advance of the trial. The defence argues that item k. is wholly inadmissible.
Relevant factual matters
The detail of the allegations against the accused have been summarised elsewhere and it is not necessary to here repeat them. It suffices to note the following.
On 23 July 2018 the deceased resided at 19 Seagrove Way, Cowes with three children born of the marriage between the deceased and accused. That address was the former matrimonial home. From 19 May 2017 a Family Violence Intervention Order (‘FVIO’) had prohibited the accused from attending or being near 19 Seagrove Way.
On 3 July 2017 the deceased had made two sworn statements to police in which she made allegations of sexual offending against her by the accused. Charges of rape were preferred against him on 24 August 2017. Those charges were listed for a contested committal hearing at the Latrobe Valley Magistrates’ Court on 30 July 2018.
22 July 2018 was the birthday of the deceased. She was at home with her children and had a small gathering of friends in the afternoon. At about 11.00am that day the accused rode past the address on his motorcycle. He then rode to San Remo. The accused visited Mr Brown between about 5.30pm and 8.30pm. An arrangement was made between Mr Brown and the accused to go for a motorcycle ride the following morning. The accused failed to attend as planned and did not answer an SMS message from Mr Brown.
Shortly before 9.00am on 23 July 2018 the deceased left her home to drive her children to the nearby Cowes Primary School and then attend a café in the main shopping district of Cowes. By about 11.22am she had returned home. A friend called the mobile telephone number of the deceased at 11.36am. That call went unanswered. There was no further activity on her telephone service after that time. The deceased failed to attend an appointment in Wonthaggi at 12.00pm.
A suite of evidence establishes that, in breach of the FVIO, the accused attended 19 Seagrove Way on 23 July 2018. CCTV footage places him arriving in the vicinity on a motorcycle at about 7.37am.
The Crown will lead CCTV evidence that about three minutes after the deceased had left 19 Seagrove Way, the accused approached the address on foot and evidence of a witness that a man (said by the Crown to be the accused) was observed to enter a garden bed in the heavily vegetated front yard at about 9.00am.
The Crown case is that the accused secreted himself to await the return of the deceased and, after she had done so and parked in the garage, he assaulted her. Evidence of injuries to the deceased, including bruising to the head and a poorly developed focal traumatic axonal injury to the brain, will be led. The accused was later found to have a scratch to his nose and his DNA was found under the fingernails of the deceased’s left hand. The Crown case is that the accused strangled the deceased using a length of rope before hanging her using the rope looped over the track of the sectional garage door. The accused then manipulated the scene in an attempt to make it appear that the deceased had committed suicide by hanging, including by placing a small step-ladder on its side. The Crown alleges that when the accused left the scene, he took with him the white top the deceased had been observed wearing at the café in Cowes.
Other evidence to be led by the Crown includes the movement of the accused throughout the rest of the day.
(a) Sometime after 11.00am a witness observed the accused standing outside the garage door of 19 Seagrove Way and apparently cleaning something on top of a rubbish bin. The garage door was raised about two feet from the ground.
(b) The CCTV footage of 12.04pm detailed in items b., c. and d. records the accused’s movements along Seagrove Way and away from number 19.
(c)A witness describes observing a man in a black hooded top, with the hood over his head, walking out of Seagrove Way and continuing east along Settlement Road between 11.45am and 12.15pm.
(d) The journey of the accused on his motorcycle from Settlement Road in Cowes towards San Remo is captured by CCTV footage between 12.13pm and 12.33pm.
(e) Between 12.30pm and 1.00pm a witness observed a motorcycle parked on the footpath outside 6 Park Road, San Remo. The accused had spent the previous night at that address.
(f) The accused travelled by motorbike to his father’s address in Paynesville, arriving between about 5.15pm and 5.30pm. En route he was intercepted by a marked police car in East Bairnsdale for speeding. He behaved emotionally, crying and complaining about his separation from the deceased.
Police telephoned the father of the accused at 1.57am on 24 July 2018 in order to locate the accused and arrange to notify him in person of the death of the deceased.
The accused was arrested by appointment at the Melbourne West Police Complex at about 9.00am on 26 July 2018. He was processed and interviewed before being released without charge at about 1.30pm. During the interview the accused exercised his right to silence.
On 28 July 2018 the accused attended Park Road, San Remo. In addition to the evidence detailed in item k. above, the accused, when challenged by the informant about his statements to witnesses Brown and Antonovich, approached the informant and attempted to physically menace him. He then walked away from Park Road before re-attending and gaining access to the premises at 4 Park Road. He was observed by a witness to have an object stuffed up the front of his shirt and to scale the rear fence of number 4 in order to exit the property. The accused said to the witness words to the effect of ‘if the cops come around, you haven’t seen anything … you’ve seen nothing’.
The accused was arrested and charged with murder on 2 August 2018.
Relevant aspects of the defence response
The following matters, detailed in the Defence Response to the Summary of Prosecution Opening for Trial, dated 31 January 2022, are relevant.
The defence accepts that there was, at the relevant time, a FVIO on foot which not only prevented the accused from engaging in ‘family violence’ but prohibited him both from approaching or remaining within 20 metres of the deceased and going or remaining within the boundary of 19 Seagrove Way, Cowes. That FVIO was known to the accused.
As at 23 July 2018 the accused knew that the rape charges were listed for 30 July 2018. He had indicated to the Latrobe Valley Magistrates’ Court that he would contest the charges. He knew that the deceased would, at some stage, give evidence in relation to those charges but was unaware that this was scheduled to occur at the hearing on 30 July 2018.
The accused admits riding his motorcycle to Cowes on 22 July 2018 and passing 19 Seagrove Way. The plans made that evening with Mr Brown to meet the following day were tentative.
As to the events of 23 July 2018, the response is in the following terms:
11. The accused admits that he attended the Cowes area on 23 July 2018 and attended at 19 Seagrove Way, Cowes.
12. He did so at the invitation of [the deceased] and his attendance at the premises was in no way intended to lead to any form of violence. He denies that he ‘must have secreted himself’ when [the deceased] returned to 19 Seagrove Way, Cowes on 23 July 2018.
13. The accused admits that [the deceased] arrived home sometime on the morning of 23 July 2018 and that he was present at the address when that occurred.
14. The accused was in the presence of [the deceased], at 19 Seagrove Way, Cowes on 23 July 2018.
15. While at this address, he spoke with her and there was a limited physical confrontation.
16. The accused did not cause the death of [the deceased].
17. The accused disputes interfering with the scene so as to make it look like a suicide by hanging.
It should be noted that the admission to attending ‘at 19 Seagrove Way’, ‘the premises’ and ‘the address’ did not necessarily include an admission to entering the garage. But, a Further Defence Response (‘Further Response’), filed on 4 March 2022, is in the following terms:
2. The accused admits that at some stage whilst at 19 Seagrove Way, Cowes, on 23 July 2018, he was present in the garage with the deceased.
3. Further, the accused admits causing the non-fatal injuries to the deceased, but did not cause all injuries intentionally.
Legal Principles
Section 20(1)(b) of the JDA establishes that the Crown must not rely on evidence of incriminating conduct unless 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.
The terms ‘conduct’ and ‘incriminating conduct’ are both defined in s 18 of the JDA.
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 of having committed the offence charged or an element of an offence charged, or which negates a defence to an offence charged.
It follows that in relation to each of the four items of evidence under consideration, I must decide whether the acts of the accused are reasonably capable of being viewed as an implied admission to having caused the death of the deceased and do so on the basis of all of the evidence.
If the Crown is permitted to rely upon evidence of conduct as evidence of incriminating conduct, the jury will have the benefit of the s 21 JDA mandatory direction on the use of that evidence and may have the benefit of the s 22 JDA direction.
Items b., c. and d.
Items b., c. and d. of the s 19(1) JDA Notice were argued together.
Prosecution submissions
The prosecution contends that the conduct of the accused in running away (item b.), while wearing his hood up (item c.) and with his hands in his pockets and an item apparently stuffed up the front of his jacket (item d.) is reasonably capable of being viewed as evidence of the accused fleeing the scene after killing the deceased, concealing his identity from passers-by and/or CCTV cameras and taking with him an item that had the potential to implicate him in the commission of the murder of the deceased.
In answer to the defence contention that the conduct is equally explicable by reason of the accused’s presence at 19 Seagrove Way in breach of the FVIO and the ‘limited physical altercation’ in further breach of the FVIO, the prosecution argues that when the evidence is considered as a whole, those alternative explanations are not equally plausible with the incriminating explanation.
Further, the prosecution points to the safeguards of the jury directions in ss 21 and 22 of the JDA and argues that the alternative explanations of the accused’s conduct would be before the jury and this evidence could only be used as incriminating if the jury concluded that the only reasonable explanation of it is that the accused believed he had committed the offence charged or an element of it. That is a matter separate from the consideration of the admission of the evidence by a judge, which does not require a determination that the conduct is an implied admission but only that it is reasonably capable of being so viewed.
Defence submissions
The defence argues first that the conduct itself, that is the actual movement of the accused captured on the CCTV footage, has a ‘casual tenor’ to it and is not reasonably suggestive of an individual taking flight. In oral argument it was submitted that although the footage captures ‘a breaking of walking stride’ the descriptor ‘running’ was an overstatement.
The defence argues that if the conduct is of concealment and flight, then it is ‘intractably neutral’ because it could equally be a response to the accused’s breach of the FVIO. Reference was made to the oft-quoted passage in DPP v Scriven (Ruling No 4)[2] in which Maxwell P stated:
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.[3]
[2][2015] VSC 220.
[3]Ibid, [26].
It was submitted in oral argument that the conduct was equally plausible if the flight of the accused was from the deceased whilst she was still alive, because she was perhaps yelling out and trying to attract attention because of the ‘limited physical altercation’.
Acknowledging that my determination must be made on the basis of the evidence as whole, the defence pointed to particular parts of that evidence that support the contention that the deceased suicided after the departure of the accused. Namely, the evidence of the pathologist that it is possible that the deceased hung herself, text messages between the deceased and her new partner recalling her feelings of 12 months prior and a text message between the deceased and her friend Peta Le Roy on 23 July 2018 in which the deceased wrote about not feeling well and being unable to meet that day.
Analysis
In light of the first submission of the defence, the immediate issue is what is depicted on the CCTV footage.
There are two excerpts of footage. One is taken over the driveway and the other over the veranda of 13 Seagrove Way, Cowes. Both are very short. Nonetheless they are clear. The footage was played during the hearing of the argument and I have reviewed it again in chambers.
In my view the movement, clothing and posture of the accused in the footage is accurately described in items b., c. and d. in the prosecution notice. The accused is moving at a pace much faster than a walk (and whether that might be best termed running or jogging is beside the point). His hood is up, his hands are in his pockets and there does appear to be an item up the front of his jacket.
The footage leaves it open to the jury to accept that the accused was in a hurry to leave the vicinity of 19 Seagrove Way, used the hood as an attempt at (partial) concealment of identity and had an item secreted in his jacket.
That being so, that evidence of conduct, on the basis of the evidence as a whole, is reasonably capable of being used by the jury as evidence of incriminating conduct. In other words I do not accept the defence submission that the conduct is intractably neutral. The jury could, on the whole of the evidence, decide that the only reasonable explanation for that conduct is that the accused believed that he had committed murder or an element of that offence. In other words, the jury could determine that ‘innocent’ explanations of the conduct, namely flight from breach of the FVIO simpliciter by mere presence or breach of the FVIO by the family violence involved in a ‘limited physical altercation’ or ‘causing the non-fatal injuries’ (but not all intentionally), were not reasonable or ‘equally plausible’ explanations.
In this regard I note the following matters.
First, while the accused was undoubtedly in breach of the FVIO by his presence at 19 Seagrove Way, that breach is established not by the acknowledgment of such in the defence response, but by evidence in the depositions.
Second, the accused asserts in the defence response that he was at 19 Seagrove Way at the invitation of the deceased. There is no evidence of that invitation. Rather, much of the evidence could lead the jury to the conclusion that such an invitation was highly improbable. Without rehearsing the detail of the evidence, the jury may well conclude that in July 2018 the deceased was extremely fearful of the accused.
She had expressed that fear in many ways and to many people. As recently as 20 July 2018 the deceased had told a counsellor that she felt more vigilant about her safety as the accused had been sighted on Phillip Island. She had sought help to change locks and install security equipment at her residence after alleging that the accused was tracking her movements. She had the electronic security pad on the garage recoded. Further, the deceased had complained of rape by the accused and the contested committal hearing with respect to those allegations was due to commence on 30 July 2018. She had told her friend Nadine Leed that she was strong and determined and ready to stand up in court to tell her story and have her voice heard.
Also, the manner and timing of the accused’s arrival (summarised above) indicates a furtive approach to the premises rather than arrival by appointment or arrangement. So does the fact that the accused left his own mobile telephone behind at his sister’s Melbourne house when he departed for Phillip Island on 20 July 2018, taking instead that belonging to Kylie Munro. The Munro telephone service was switched off on 23 July 2018 between 7.56am (when it was detected in contact with the Cowes Esplanade mobile tower) and 5.47pm (when it was detected in contact with the Paynesville mobile tower).
Third, there is evidence consistent with there being a physical altercation between the deceased and the accused on 23 July 2018 (some of which is summarised above), but there is no evidence that it was ‘limited’. That is an assertion made in the defence response. Further, if there had been a physical altercation of a ‘limited’ nature and the accused took flight in response, the item apparently concealed in his jacket remains unexplained. It is to be noted that the white top worn by the deceased to and from the café that morning could not be located by police in the house or elsewhere. The removal of a piece of clothing from the torso of the deceased is inconsistent with a limited altercation, as it suggests that the deceased was somewhat incapacitated at the time it was removed. The continued, hurried flight of the accused to Paynesville is also inconsistent with a ‘limited’ physical confrontation as it is disproportionate to a minor incident taking place after the accused attended 19 Seagrove Way at the invitation of the deceased.
As noted above, the defence filed a Further Response in which the accused admits causing the non-fatal injuries to the deceased, but not all of them intentionally. That was done approximately two weeks after the argument on this point was heard. In my view, that further admission does not render the evidence intractably neutral. It is not clear whether the Further Response means that the defence no longer seeks to characterise the physical confrontation as ‘limited’ as the Further Response is to be read in conjunction with the earlier Defence Response filed in January 2022. But, even if that qualifier was abandoned, the other matters referred to in this analysis still apply.
Fourth, the evidence which suggests the possibility that the deceased hung herself must be examined on its own and in the context of the other evidence.
The deceased was discovered by police at about 5.05pm on 23 July 2018. She was found hanging by a length of rope tied around her neck in a ‘hangman’s noose’ style knot. The rope was wrapped around the track of the sectional garage door and held in place by friction and the weight of the deceased, as opposed to a knot tying the rope to the garage door track. The deceased was suspended. Her feet were almost flat on the garage floor. There was a clump of apparent hair attached to the rope some distance above the deceased’s head and there were areas of apparent blood staining on the rope between the deceased’s head and the garage door track. The deceased’s hair was unkempt and had come loose from a ponytail. It had apparent blood staining, had become entangled in the rope and appeared wet at the front. A three-step ladder, tipped on its side, was located beside the deceased’s body. Two bicycles and two children’s scooters were standing upright and apparently undisturbed immediately beside the deceased’s body. All points of entry to the house were locked except two windows, one in the toilet/powder room and the other in the laundry, which were closed and had their internal flyscreens in place. Police did not discover any suicide note or any electronic message from the deceased.
The pathologist gives the cause of death as ‘hanging in the setting of multiple blunt force injuries’. She makes two pertinent comments. First, that there was evidence of blunt force trauma to the face, neck, upper and lower limbs which was in keeping with an assault. Sections of the bruises taken did not show any evidence of healing or Perls’ positive haemosiderin deposition and were in keeping with recent bruises. Second, given the injuries identified it is possible that the deceased had been knocked unconscious and hung from the rope. It was also possible that the deceased had hung herself following an assault.
Both during and after the breakdown of her marriage the deceased suffered periods of apparent depression and sought mental health and counselling assistance. Although disputed by the defence, there is evidence that the treating professionals as well as family and friends of the deceased observed both an improvement in the mental health of the deceased and a state of positivity prior to her death.
As to the text messages relevant to the deceased’s mental health immediately prior to her death, the evidence of Mr Foster, the deceased’s partner, was that on Friday 20 July 2018[4] he spoke with the deceased in her bedroom about her birthday on Sunday. He asked her how her birthday was in 2017. The deceased said it was ‘horrible’ and that she had considered taking her own life. When he asked why, the deceased said she was sick of the situation with her ex as he was taking everything away from her.
[4]There is an obvious error in the statement, which refers to ‘20/4/18’.
Mr Foster goes on to explain that he stayed that night and the next, when the deceased’s sister and brother-in-law also stayed. Mr Foster left after breakfast to go to work. Other evidence establishes that the deceased spent time with her sister in the morning and had a gathering of friends in the afternoon.
At 9.40pm on 22 July 2018 Mr Foster sent a text message to the deceased in the following terms, ‘How will you remember this birthday in years to come’. The deceased replied at 4.00am on 23 July 2018 ‘the beginning of a wonderful new stage of my life xo’.
Other evidence relevant to the deceased’s plans for the future (as at late July 2018) include that on 18 July she had made an appointment to have her hair blow waved on 29 July 2018 so that she would look her most presentable for the court hearing on 30 July 2018. She told the hairdresser, Ashlee Bowen, that she would be required to stand up and talk and that while the accused would be able to see her, she would not be able to see him. At the birthday party on 22 July 2018 the deceased told one of the attendees, Christina Aitken, that she was confident that she would still be at art class the following day despite her midday appointment. She told another attendee, Serena Cabello, that she was looking forward to getting through the court process and starting her life again. Ms Cabello described her as being in high spirits and that the deceased said she was ‘very excited’ about the prospect of returning to work and being financially independent again.
The text message to Peta Le Roy on 23 July 2018 related to the art class, which was due to start at 10am and about which Ms Le Roy had reminded the deceased the day before while sending electronic birthday greetings. Ms Le Roy was the art teacher. She had not attended the gathering of close friends on the deceased’s birthday. The deceased had said that she would need to leave early because she had a doctor’s appointment at 12.00pm. The text message ‘I’m not feeling well. I won’t be there’ was sent to Ms Le Roy at 9.40am on 23 July 2018. That was sent at the time the deceased was at the café in Cowes. She met Mr Foster and Lija Matthews there at about 9.15am. After a coffee Mr Foster and Ms Matthews left. Mr Foster came back after about 30 minutes to find the deceased sitting by herself reading. They spent more time together until about 11.00am. They parted saying they would catch up later.
The text message to Ms Le Roy might well have been an excuse for non-attendance at her art class. The notion that it meant that the deceased was feeling suicidal is inconsistent with the other evidence of the deceased’s mental well-being at the relevant time.
Considering all of these matters together, in the context of all of the evidence (there being many details not specifically rehearsed), it is my view that items b., c. and d. of the prosecution’s s 19(1) JDA notice are not intractably neutral. The ‘innocent’ explanation of the conduct being explicable by the breach of the FVIO is not as equally plausible as the incriminating explanation. The jury could readily decide which was the preferable explanation. It follows that the conduct identified is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Item k.
Prosecution submissions
The prosecution submits that the accused’s conduct in telling witnesses Brown and Antonovich not to cooperate with police was because he knew they could implicate him as being in the Philip Island area on 23 July 2018. It is argued that if the accused was not involved in the death of the deceased then he could have no reason to direct witnesses not to assist police.
Defence submissions
The defence accepts that at the time of the conduct on 28 July 2018 the accused knew he was a suspect in the death of the deceased, having been interviewed by police on 26 July 2018. However the defence argues that the conduct is explicable by the strained relationship between the accused and police arising from legal proceedings that arose in the wake of the separation between him and the deceased, both the FVIO proceedings and the criminal proceedings for rape. Evidence of that strained relationship comes from Mr Brown and the accused’s father.
In oral submissions counsel emphasised that what Mr Brown and Ms Antonovich were capable of saying must be considered. They were not direct witnesses to anything. Both, in answer to direct police questioning, stated that the accused’s face was absent any injury on 22 July 2018. However, counsel argued that this could not have been a matter at the forefront of the accused’s mind when he told them not to co-operate, lending force to the submission that the conduct is equally explicable by foolish bravado as it is by the accused’s belief in his own guilt.
Analysis
I agree with the defence submission that one must consider what the witnesses Brown and Antonovich were capable of saying. While they were capable of making observations as to the presence or absence of a scratch to the accused’s nose, on a more fundamental level, they were also capable of placing the accused on Phillip Island at the relevant time.
In this respect, what the accused knew about the police investigation as at 28 July 2018 is relevant. That information came from the record of interview he underwent on 26 July 2018.
That interview commenced at 9.27am. Aside from stating his name and address, the accused gave no audible reply to most questions. Detective Senior Constable Farrell stated:
Q 4… I intend to interview you in relation to the circumstances surrounding the death of [the deceased] at Cowes on Monday. …
(No audible reply)
A little later DSC Farrell stated:
Q 17 … one of the inquiries we do in the early stages of a suspicious death investigation is to speak to the people in the closest circles around the deceased and get an account from them. All right. Obviously we put you in that category and so we’d seek to get an account for you – from you about your movements on Monday. Can you tell me what you were doing on Monday just gone, 23rd of July.
(No audible reply)
The interview was then suspended while certain forensic procedures were undertaken. Upon recommencement of the record of interview at 1.20pm DSC Farrell stated:
Q 49… The doctor identified some injuries on your person. Do you want to tell me anything about how you got them?
(No audible reply)
Q 50As we stated before, the purpose of that exercise was to confirm or disprove your involvement in the offence we’re investigating so if you have any information that will assist us in that way or you can account for those injuries at all, please let me know, OK? The same thing goes with respect to what we refer to as alibi information. If you have any information about your whereabouts on Monday the 23rd of July 2018 that you would like the police to investigate in order to verify, then I urge you tell me about it. You’re under no obligation to do that but if there are things that we can – inquiries that we can make to exclude you from this investigation, then I’ll welcome you to tell me about it. OK? And you can do that through your lawyer later on as well if you like. OK? Would you like to stop and have a chat to John?
No.
Q 51 OK, alright. … did you attend 19 Seagrove Way in Cowes on Monday?
(No audible reply)
Q 52 And lastly, did you have anything to do with [the deceased’s] death?
(No audible reply)
It follows that as at 28 July 2018 the accused knew that the police were interested in whether or not he was on Phillip Island on 23 July 2018. Any evidence that the police had that placed him there was, at that stage, unknown to him. And it is to be recalled from other evidence, such as him leaving his own mobile telephone behind in Melbourne, parking his motorbike some distance from 19 Seagrove Way on 23 July 2018 at 7.37am but only approaching the property on foot three minutes after the deceased left at about 9am and wearing his hood up as he ran away from the property at 12.04pm, one could infer that the accused took steps to disguise his presence on the island and at the premises at the relevant time.
Both Mr Brown and Ms Antonovich had seen the accused on Philip Island on 22 July 2018 and knew that he had stayed overnight.
I accept that as a man having been charged with rape and who intended to plead not guilty, the accused was likely to feel a sense of resentment towards police. But as regards evidence of the ‘strained’ relationship between the accused and police, I note the following.
Mr Brown’s evidence is that he had spoken to the accused about ‘issues he has had with local police. He believes that they have made paperwork disappear and interfere (sic) in the investigation into his and [the deceased’s] separation.’ Mr Basham senior’s evidence is that he ‘attributed [the accused’s] initial refusal to speak with Police to his past experiences with them surrounding the estranged relationship with [the deceased].’
The evidence of the accused’s interaction with Constable Amy Frost, when he was intercepted in Bairnsdale on 23 July 2018 is also relevant. Her statement is in the following terms:
I said Have you had any involvement with police before?
He saidI really can’t deal with this, I can’t take it anymore. Yeah but only intervention order stuff.
I said So you’re not wanted or anything like that?
He saidNah, nah. Please I can’t have this on top of everything that I have going on in my life right now, this just keeps getting worse, my ex’s lawyer will use this against me, I really don’t need this, please no, not with all of the stuff I already have going on, please, please, please, no.
I saidLook, I am not going to give you a ticket, we are just doing some checks, we won’t be long, please take some deep breaths and relax for me ok, I can see that you have had a bad day and that you’re upset.
Constable Frost goes on to describe the accused as ‘crying uncontrollably’. She states that she was concerned. She asked if there was anything she could do for him and offered to put in referrals to get him help. He declined.
It is to be noted that at the time the accused approached Mr Brown and Ms Antonovich, he was not distressed. He was calm and deliberate in his actions.
I note that given the timing of the filing of the Further Response, it was not argued that the evidence was intractably neutral because the conduct was equally explicable by the fact that the accused knew he had inflicted the non-fatal injuries. However, the accused maintains his assertion that he was at 19 Seagrove Way by invitation of the deceased and, despite the new admission to inflicting non-fatal injuries, asserts that not all such injuries were inflicted intentionally and that his attendance was ‘in no way intended to lead to any form of violence’. It is not clear what injuries the accused asserts were unintentional. And, it is to be recalled that the accused took steps to disguise his presence on Phillip Island as well as at 19 Seagrove Way even before any altercation took place.
Considering the evidence as a whole, item k. is not intractably neutral. The jury could decide that the accused told Mr Brown and Ms Antonovich not to cooperate because they could place him at the scene at the time of the death of the deceased when he had taken steps to disguise that fact and he knew that he had caused her death as opposed to knowing that he had caused non-fatal injuries (some of them unintentionally). It follows that the conduct identified is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Conclusion
The prosecution will be permitted to rely upon items b. c., d. and k. of the s 19(1) JDA Notice as incriminating conduct.
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