R v Basham (Ruling No 5)
[2022] VSC 110
•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 5) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 110 |
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CRIMINAL LAW – Accused charged with murder of estranged wife – Body of deceased found hanged in closed garage – Whether two experimental re-enactments would assist the jury understand the evidence – Whether danger of unfair prejudice of experimental re-enactments outweighs probative value – Evidence Act 2008 (Vic), ss 53, 54 and 137.
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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.
The Crown case is that the accused secreted himself at the deceased’s home minutes after she left the property to drive her children to school. Upon her return the accused surprised her and killed her. The body of the deceased was found later on the same day hanged from a rope attached to the track of the automatic sectional garage door. A three-step ladder, tipped on its side, was located beside the deceased’s body.
The Crown case is that the accused murdered the deceased and attempted to make it look like suicide.
The deceased’s home was the former matrimonial home. After the separation between her and the accused she had the locks on the doors and windows changed and the electronic remote control for the garage recoded. At the time her body was discovered, all points of entry/exit to the house and garage were locked, except for a window in the toilet/powder room and a window beside the door to the laundry, both of which were closed but not locked and had their internal flyscreens in place. It is not possible to lock the doors from the outside without a key.
In the Defence Response to the Summary of Prosecution Opening, the accused admits to being at ‘the premises’ on the relevant day in breach of a Family Violence Intervention Order (‘FVIO’). (And prosecution evidence, both of CCTV footage and witnesses, places him there at the relevant time.)
It should be noted that the admission to being at ‘the premises’ did not necessarily include an admission to entering the garage. But, a Further Defence 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.
The Crown proposes to adduce evidence of two experiments conducted by the informant. Both are submitted to be relevant to the fact in issue of ‘did the accused kill the deceased or did she suicide?’
In the first experiment, the informant, unassisted, suspended a dummy of the same weight as the deceased from a rope secured to the garage door. This was achieved using a similar length of rope found at the scene and the actual step ladder found at the scene (‘first experiment’). In the second experiment, the informant, unassisted, used the remote control device fixed to the wall at the doorway of the garage into the house to raise the garage door to a height consistent with the height available when the deceased was suspended from the garage door track. The informant was then able to activate the garage door via the remote control device to close it and exit under the closing door before it closed completely (‘second experiment’).
It is submitted that the first experiment demonstrates that it is possible for one strong/well-built man to affix a hangman’s noose around a prone 56kg weighted dummy lying on the floor and hoist it up onto the track of the roller door using the step ladder found at the scene. It is submitted that the second experiment demonstrates that it is possible for a person to be inside the garage after the murder was committed and exit the garage, have the garage door shut completely behind them and leave the scene.
The defence objects to both experiments first on the basis of relevance and, alternatively, on the basis that their probative value is outweighed by their prejudicial effect.
Legal Considerations
Section 54 of the Evidence Act 2008 (Vic) (‘EA’) allows a jury to draw any reasonable inference from what they see, hear or otherwise notice during an experiment, demonstration or inspection. Section 53 of the EA provides that I may order that an experiment be held, but does not apply to experiments, demonstrations or inspections conducted outside the courtroom.[1] Nonetheless, the matters set out in s 53(3) are relevant to determining whether the evidence should be admitted. Thus I must consider whether the experiment/demonstration will assist the jury to resolve issues of fact or understand the evidence, the danger that the experiment/demonstration might be unfairly prejudicial, misleading, confusing or result in undue waste of time, whether the demonstration will properly reproduce the conduct or event to be demonstrated and the extent to which the place in which the experiment/demonstration has taken place has been materially altered.
[1]Evans v The Queen (2007) 235 CLR 251, [30].
The admissibility of evidence of experiments has attracted a significant amount of judicial comment. The primary consideration for admissibility is whether the evidence would ‘enlighten the jury and enable them to more intelligently consider the issues presented and arrive at the truth’.[2]
[2]Shepherd v State (1931) 51 Okl. Cr. 2009, cited with approval in R v Ireland [1971] SASR 6, 14-15.
The circumstances of the experiment should be substantially similar to those prevailing at the time of the occurrence in question but need not be identical. Minor variations go to the weight rather than the admissibility of the evidence.[3] On this issue:
the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in light of all the surrounding facts and circumstances.[4]
[3]R v Neilan [1992] 1 VR 57, 75 [3]-[14].
[4]Ibid, 75 [8]-[13].
The evidence of the experiment must not be likely to mislead the jury who might give it exaggerated significance.[5] Depending upon the issue, an experiment can be conducted by a lay person or professional. An important consideration is that the experiment is of a kind that can be tested by cross-examination in the court room.[6]
[5]R v Baker [1989] 3 NZLR 635, 638 [40] (‘Baker’).
[6]Baker, 639 [2]-[3]. See also DPP v Jensen [2006] VSC 179, [49] and Birks v Western Australia [2021] WASCA 73, [54].
The first experiment
Crown submissions
The Crown submits that the jury should be in a position to assess whether it was physically possible for a sturdy adult male to hoist the prone/unconscious body of the deceased up onto the roller door track while a rope was tied around her neck and with the use of the same step ladder. This, it is argued, is something beyond ordinary experience and a jury member may assume that such a feat of strength was either unlikely or impossible.
The Crown accepts that the experiment is premised on the assumption that the deceased was unconscious and on the floor at the time her body was hanged. The Crown submits that the conditions under which the experiment was conducted are sufficiently similar to those that existed at the time of the deceased’s death. The Crown points to matters of replication, being the same garage where the same vehicle (the deceased’s) was parked when the body was discovered and with the same roller door and tracks. The same step ladder was used. The Crown points to further matters of similarity, namely that the dummy body was of approximately the same weight as the deceased, a hangman’s noose and similar rope were used. And, it is argued, the informant is of comparable or inferior build/strength/fitness to the accused.
In addressing issues arising under ss 135, 136 and 137 of the EA, the prosecution argues that the evidence is neither unfairly prejudicial nor likely to be misleading or confusing. The experiment was captured in real time on video and is accompanied by a clear description of what the informant is doing and why. There will be ample evidence that shows the state of the garage as at 23 July 2018. And, as the central subject matter of the trial is death by hanging or strangling, there can be no prejudice that arises from the use of the dummy to demonstrate that the Crown case is physically possible. Judicial direction will ensure that the jury does not reason that the fact that the Crown theory is possible means that it is proven.
Defence submissions
The defence submits that the methodology used by the informant ‘departs from satisfactory scientific practice’ and the scenario re-enacted is speculative, being unsupported by any direct, independent evidence other than the position in which the deceased was found. In particular the defence raises a number of assumptions that undermine the utility of the exercise. First, that the informant and accused are of equal size, strength, agility and ability. Second, that the dummy, although of approximately the same overall weight as the deceased, is the same size and has the same distribution of weight as the deceased. Third, that the deceased was in the same position as the dummy when the experiment began. Fourth, that the deceased was limp or unconscious at the time she was hanged. Fifth, that the rope was handled in the same way as the informant handled it. Sixth, that the door mechanism was used in the same way as the informant did, noting the absence of forensic evidence retrieved from the button.
Accordingly, the defence submits that the probative value of the first experiment is low and its prejudicial effect high. The prejudice comes from both the morbid nature of the footage and the danger that the jury will overvalue its importance given the manner in which an experienced police officer is depicted.
Analysis
It is convenient to recall the evidence of the pathologist.
Dr Parsons found the cause of death to be hanging in the setting of multiple blunt force injuries. She commented:
At autopsy, the deceased had evidence of blunt force trauma to the face, neck, upper and lower limbs. This is in keeping with an assault. Sections of the bruises taken did not show any evidence of healing or Perls’ positive haemosiderin deposition and are in keeping with recent bruises.
Given the injuries identified it is possible that the deceased had been knocked unconscious and hung from the rope however it is also possible that the deceased has hung herself following an assault.
As I understand the Crown case, it is not limited to the deceased necessarily being unconscious at the time she was hung by the accused. The Summary of Prosecution Opening is in the following terms:
The deceased arrived home in her vehicle at 11.22am and drove into the garage. The Crown cannot say whether the accused was already in the house when she drove in or whether he accessed the garage immediately after she had entered. There were no signs of forced entry to the house or garage. The accused also entered the garage, then assaulted the deceased. In so doing the accused sustained a scratch to his nose, and the deceased’s fingernail from her left little finger was injured.
The accused used a rope, believed to belong to the deceased’s father and to have been stored in the garage, to tie a ‘hangman’s noose’ and then suspended the deceased by the neck from a track of the sectional garage door. The accused arranged the scene to make it appear that the deceased had committed suicide by hanging. He placed a small step-ladder on its side beside the deceased’s suspended body and removed the deceased’s white top from the premises.
It follows that the re-enactment using an inert dummy is only one of the possible scenarios argued for by the Crown.
That being so, while it has some probative value in showing that it was physically possible for a man of similar build as the accused to hang a dummy of the same weight as the deceased, it says nothing about the physical possibility of a man of that build hanging a struggling or resisting person. Therein lies the prejudice to the accused. In my view the power of the visual images of the informant, in a calm state, conducting the experiment is not to be underestimated. The jury will see footage of the re-enactment of only one of the two possibilities on the Crown case. And that possibility is easier to accept, as a matter of human experience absent any re-enactment, than the alternative. In my view the combined life experience of the jury will allow them to consider that it is possible that a man of the build of the accused could hang the 56kg deceased if she was unconscious and inert.
I have considered whether the accused’s admission to being in the garage ‘at some stage’ and to causing the non-fatal injuries to the deceased made in the Further Defence Response filed after the legal argument was heard, alters the balance between the probative value of the first experiment and its prejudicial effect. I note that the removal of the white top would be more likely to have happened before the deceased was hanged and at a time when she was somewhat incapacitated. However, there is no evidence that the non-fatal injuries would have necessarily rendered the deceased unconscious. In those circumstances, the danger of unfair prejudice to the accused by the jury watching the video footage of the informant undertaking the experiment in a calm manner remains.
It follows that I am of the view that the danger of unfair prejudice to the accused outweighs the probative value of the first experiment. The evidence will be excluded.
The second experiment
Crown submissions
The Crown submits that the issue of egress from the garage/house is relevant to the central question in the trial, namely did the accused kill the deceased or did she suicide. The deceased was found in the garage. There are three means of exit for a person from within the garage: the roller door, the rear garage door or the internal door from the garage to the hallway of the house (and then out of the house through the front door, back door or windows).
The garage door was completely shut. A portable garage door remote control was found in the vehicle of the deceased, which was parked in the garage. The garage door could also be activated by a remote device affixed to the wall at the doorway from the garage into the house. The garage door could only have been closed by use of one of these two devices, unless there was a third device elsewhere. There is no evidence that a third device existed and, even if it did, it is fanciful to suggest it was in the possession of the accused. The deceased told a case worker on 28 June 2017 that she had had the garage door remote control recoded.
The rear garage door was blocked by an obstacle from inside the garage and could not have been used as a means of exit.
The door from the garage into the house was ajar, but the house doors were locked. They can only be locked from the outside using a key. The deceased had had the locks changed in about December 2017 or January 2018. As noted above, all but two windows to the house were locked and they had their internal flyscreens in place.
It follows that if someone else was in the garage at the time the deceased was hanged, exit through the roller door was the only possible means of egress.
The Crown submits that a jury is not well placed to assess whether or not, if the accused did kill the deceased in the garage by hanging her from the roller door track 821 mm from the wall, he could activate the remote button and have sufficient time to exit the garage via the roller door and have it shut behind him. The second experiment shows that it was possible to exit via the roller door after manually pressing the button.
The Crown notes the similarities between the circumstances of the second experiment and those of the garage on the day the deceased was found. In particular the Crown notes that during the experiment the roller door was opened to a height of about 780 mm as further opening was prevented because the noose around the dummy body obstructed the roller door runner. There is evidence of a witness who on the morning of 23 July 2018 observed the accused standing outside the garage with the roller door partially open to a height of about two feet (about 60 cm).
Further the Crown submits that a mere recitation of distances and heights absent the evidence of the re-enactment would not allow the jury to assess whether or not a person could exit in all of the circumstances. And, the Crown submits that no unfair prejudice to the accused arises.
Defence submissions
The defence submitted that there was only limited direct, impartial evidence that supported the way the informant conducted the experiment. In particular there was no forensic evidence to support the notion that the accused touched the remote button on the wall. It was also submitted that the experiment cannot replicate the emotional state of the person in the garage and assumes that that person was uninjured. Those matters mean that the conditions of the experiment are not sufficiently similar to the situation in the garage at the relevant time.
The defence further submitted that unlike the situation in most of the reported authorities, the experiment was not conducted in direct reaction to an account given by an accused.
Analysis
In my view the second experiment will assist the jury to understand the evidence in the trial. Other evidence establishes that for the house to be in the state it was at the time the body of the deceased was found if a second person was present in the garage at the time the deceased was hanged, the only means of egress was the roller door. The experiment does no more than show it was possible for an able bodied man to have been in the garage and exited under the door after pressing the remote control button on the wall when an equivalently weighted dummy was hung at the location where the body of the deceased was found. While there is other evidence that shows the location of the remote control button, the position of the deceased’s body and the like, there is no evidence that shows the speed with which the roller door closes.
The circumstances of the experiment are very similar to those existing on 23 July 2018. The garage, garage door and track and the position of the remote control button are identical. The dummy body was of the same weight and attached at the same point using the same type of knot and rope.
The evidence does no more than show a physical possibility. Issues of heightened emotional state and stress of the second person are less relevant with respect to getting under a door than in dealing with a potentially resisting body and do not suffer the vice of assumption of scenario necessary in the first experiment. Exit via the garage door was either possible or not.
Further, as noted above, a man (said by the Crown to be the accused) was seen outside the garage at a time when the door was partially opened. And there is no evidence that the accused was injured, a scratch to the nose aside. CCTV footage captures him at 12.04pm running along the street.
In my view no unfair prejudice is occasioned to the accused by the second experiment.
The second experiment will be admitted.
Conclusion
The first experiment will be excluded. The Crown will be permitted to lead evidence of the second experiment.
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