R v Belete
[2007] VSC 240
•6 July 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1437 of 2007
| THE QUEEN |
| v |
| WONDIMU BELETE |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 JULY 2007 | |
DATE OF RULING: | 6 JULY 2007 | |
CASE MAY BE CITED AS: | R v BELETE | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 240 | |
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RULING – Admissibility of relationship evidence – Remoteness of time and place – Wilson v The Queen (1970) 123 CLR 334, Pfennig v The Queen (1995) 182 CLR 461.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Champion SC | Angela Cannon, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Chadwick | C. Marshall & Associates |
HIS HONOUR:
Wondimu Belete has been charged on three counts. The first is that of the attempted murder, on 10 November 2006, of his wife Abeba Amare. He has also been charged with intentionally causing her serious injury (count 2), and recklessly doing likewise (count 3). Counts 2 and 3 arise out of the same incident as count 1. I am informed that he intends to plead not guilty to the first count and guilty to the second.
If pleas are recorded in accordance with this indication, the third count - being an alternative to count 2 – will fall away. The plea of guilty to the second count carries with it an admission that the offence occurred at the place and time alleged, that the offender was the accused, that he caused serious injury to his wife, and that he did so not only intentionally but also without lawful excuse. As I understand it, the evidence will be that the accused stabbed his wife; and the inference which by the plea is necessarily made good is that he thus intentionally caused her serious injury.
This being so, the sole issue on the accused’s trial on the count of attempted murder will be that of intention. If it is to secure a conviction on this count, the Crown must prove beyond reasonable doubt that the accused intended to kill.
Intention can only be established by inference. The manner of execution of the acts constituting the alleged attempt may be a basis for drawing the relevant inferences. In many if not most cases, however, relationship evidence will be important.
According to the evidence that the Crown anticipates will be called, the accused married Abeba Amare (whose name was then Almaze Desta Asafrew) in or about July 2001. The Crown seeks to tender evidence that the marriage was pre-arranged by Ms Amare’s mother. Thereafter, according to the Crown, the accused’s relationship with her was such as to point unequivocally to the conclusion that when he wounded her with a knife in Flemington on 10 November last year he intended to kill. The Crown also seeks to introduce relationship evidence to counter a number of assertions made by the accused during the course of his interview with the police. The accused then, for example, described the relationship he had with his wife as (among other things) “very nice”.
In R v Anderson,[1] Winneke P pointed to the Court’s traditional willingness to admit evidence of the pre-existing relationship between parties who have been living together for a substantial period of time preceding the events in question. But there is a proviso. It is that such evidence must have a bearing on the facts in issue. According to the President, this will be so where there is a dispute about the state of mind of the accused at the time when the acts alleged occurred, and the relationship evidence is relevant to (that is, will assist in the resolution of) that dispute.
[1][2000] VSCA 16.
The learned President then turned[2] to the case of Wilson v The Queen[3]. He first quoted a passage from the judgment of the Chief Justice, Sir Garfield Barwick:
It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it [that is, relationship evidence] is admissible though that may be the commonest case of its use and one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. … It is not that all the evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. … Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.[4]
[2]At [31].
[3](1970) 123 CLR 334.
[4]Ibid, at 339.
The President also quoted (in the same paragraph of his judgment) from the judgment of Menzies J (with whom McTiernan and Walsh JJ agreed) in Wilson. Menzies J said:
It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.[5]
[5](1970) CLR 334 at 344.
It will be remembered that, in his judgment, Barwick CJ noted that not all evidence of the relationship of the parties is admissible. The only admissible evidence is that from which a relevant inference may logically and reasonably be drawn. When seeking to assess on which side of the line any particular evidence might fall, the propositions set out by Coldrey J in The Queen v Gojanovic[6] are helpful. His Honour listed those propositions thus:
(1)The evidence of the prior relationship, (being a relationship of enmity or antipathy), of the accused and the deceased must be reasonably explanatory of the conduct with which the accused is charged.
(2)Such evidence may be adduced to establish motive, or intent, or the fact of the commission of the offence charged.
(3)It is not necessary that any particular incident the subject of evidence pertaining to the relationship should singly and of its own force establish a relationship of enmity. It is sufficient if the incident related makes a contribution which is not insignificant or insubstantial to the climate of enmity or antipathy.
(4)An incident in a relationship, which incident is isolated or remote in time from the death, may be insufficient to have any bearing on the issues of motive or intent or the fact of the commission of the crime charged.
(5)Evidence of a prior relationship of enmity or antipathy is not to be led as evidence of bad character or of a propensity towards violence of an accused.
[6][2002] VSC 118.
The issue in this case is the state of mind of the accused at the time when he stabbed his wife. The issue, in other words, is his intention at that time. He claims that he intended to do no more than cause her serious injury. The Crown, if it is to secure a guilty verdict, therefore has the burden of establishing, beyond reasonable doubt, that his intention extended beyond causing her serious injury, and encompassed an intention to kill.
As the President noted in R v Anderson, evidence of the pre-existing relationship between parties who have been living together for a substantial period of time preceding the events in question has traditionally been admitted if it bears on a fact in issue – such as the state of mind of the accused at the time when those events occurred. Wondimu Belete and Abebe Amare had been living together for a substantial period of time. It follows that evidence of the pre-existing relationship between the accused and his wife should, to the extent that it bears on the intention of the accused, be admitted in this case.
With these propositions in mind, it is now convenient to examine the evidence which the Crown anticipates will be called through Ms Amare. In a statement made to the police on 30 November 2006, nearly three weeks after the assault upon her, Ms Amare spoke of her marriage as having been organised by her mother. The police were told that afterwards the accused instructed his wife to use a new name. He then conferred that new name upon her: Abebe Amare. She responded that she did not want this name. Not only that, but she added that she would, when having to identify herself for the purposes of immigrating to Australia, use what she said is her real name: Almaze Desta Asafrew. The accused, however, told her that she had no rights. If she did not use the name he had conferred upon her, he would kill her. She changed her name as he required.
Ms Amare fell pregnant some time in 2002. She told the police that, during her pregnancy, the accused kicked her in the side of her stomach with such force as to cause her fall. She attempted to take refuge in her mother’s house, but was required by her mother to return to her husband.
A baby daughter, named Eden, was born in October 2002. The parents were then living in the Sudan. According to the statement given by Ms Amare to the police, the accused responded to the birth by claiming that, because the baby did not look like him, she was not his daughter. The marital relationship was further strained by the accused’s refusal to engage with his wife in two-way conversations. He also failed to show her any love or affection. Indeed, according to her, she was regularly beaten by him – beatings which included slapping and punching to the face, or kicking.
The couple arrived, with Eden, in Australia in July 2004. The relationship did not subsequently improve. According to Ms Amare, her husband continued to assault her “all the time”. She nevertheless did not complain to outsiders, nor seek medical or police intervention. She was, she said, scared; and she lacked competence in the English language.
A son was born to the couple in June 2005. The accused, according to his wife, was happy. He accepted Yared, the son, as his; but he continued to reject Eden. Then, early in 2005, things became even worse than they had been before Yared’s birth. The accused complained that everyone was talking about his wife and saying bad things. This caused Ms Amare to seek the intervention of “our Ethiopian community elders”. They came to the matrimonial home, only to be told by the accused that his wife “had done a bad thing to him and that [she] was not a good wife.” He did not, however, give any details of alleged misbehaviour. She claims not to know even now what misbehavior her husband had in mind. The intervention of the elders came to nothing.
Ms Amare told the police that in about January 2006, when driving with the accused in the suburb of Sunshine, he pointed to a park and told her that he was going to cut her into pieces and kill her. The park would be her burial ground.
Ms Amare also told the police that in mid April 2006, or thereabouts, her husband telephoned her mother in the Sudan. He told his mother-in-law that he no longer wanted his wife, and asked for an address to which he could despatch her.
According to the statement given by Ms Amare to the police, on Friday 21 April 2006 her husband called her a slut. Later that day, at about 3.00 p.m., he told her that she would not be able to continue to raise the children because he intended to kill her. “You are a dead person”, he said. He demanded that she give custody of the children to him. He then slapped her hard across the left side of her face. This “really hurt and made me start crying.” She nevertheless refused to hand the children to him, which made him even angrier. He subsequently left the house. She called the police, but sought no medical intervention.
On Monday 24 April, the police took Ms Amare her to the Sunshine Magistrates’ Court. She there obtained an interim intervention order, and arrangements were made for her to move with her children into a women’s refuge. For the following three months she had no contact with her husband, or with his relatives or friends. A further intervention order was taken out, with the consent of Mr Belete, on 10 July, to expire twelve months later (10 July 2007). By that order he was prohibited from assaulting, harassing, molesting, threatening or intimidating his wife. He was also prohibited from approaching, telephoning or contacting Ms Amare except when permitted to do so by a court of competent jurisdiction, or when in the company of a police officer, or when participating in counselling or mediation, or when exercising rights of contact with his children. Further restraints were imposed in relation to property.
Contact between the accused and his children was to take place weekly. This was later extended to twice a week. The exchange was effected at first at the Box Hill police station, and subsequently at Flemington.
The accused objects to the admissibility of this evidence on the ground that it is irrelevant. I disagree. The authorities to which I have referred make it clear, in my opinion, that the evidence is relevant.
The accused further submits that the evidence should be excluded on the basis that its probative value is greatly outweighed by its prejudicial effect. Again, I disagree. Because it is directly relevant to the question whether it is proper to draw, on the basis of this evidence, the inference that the accused intended to kill, the issue of the proportion of probative value to prejudicial effect does not arise. That issue only becomes alive if the impugned evidence is not directly relevant. Where as here its relevance is direct, it is not for the court to step into the shoes of the jury and assess its weight and then put that in the scales alongside its prejudicial effect. It may be that the evidence is uncorroborated, or lacking in detail, or otherwise open to attack as not carrying conviction. Let any submissions to that effect be put to the jury; and let the jury deal with them.
The accused submits that the proposed evidence is not reasonably explanatory of the conduct charged because there is no evidence of any previous attempt to kill Ms Amare. In my opinion that does not matter. So long as it is possible, as a matter of logic and experience, to use the evidence as a proper basis for ascertaining the intent of the accused at the relevant time, no more is required under this head.
Support for the above proposition may be found in R v Ritter.[7] In his judgment in that case, with which Handley JA and Hulme J agreed, Gleeson CJ said:
On this appeal the appellant’s submissions that the [relationship] evidence was inadmissible was based upon the recent decision of the High Court in Pfennig v R[8]. In particular, it was argued that the decision in Pfennig is authority for the proposition that evidence of the kind in question should have been rejected unless it were proper to conclude that its probative force was such that it bore no reasonable explanation other than the appellant’s guilt of the crime charged. This, it was said, is the test to be applied whenever the Crown tenders evidence, for any purpose, which is evidence tending to show that an accused is guilty of a criminal offence other than that charged.
I am not persuaded that Pfennig is authority for that proposition.
Subsequent authorities have confirmed the view of the Chief Justice, with which, in any event, I respectfully agree.
[7]Unreported, Supreme Court of New South Wales Court of Criminal Appeal, 31 August 1995.
[8](1995) 182 CLR 461
It is also put that the proposed evidence is too remote in time, and some of it too remote in place, to be admissible. Again, I disagree. The authorities speak of long-term relationships giving rise to relationship evidence. Of course isolated events may be inadmissible, but events that form part of a continuum, such as that exhibited by the evidence proposed to be called in this case, are not isolated. Nor are they relevantly remote. The allegation that the accused told Ms Amare to change her name or be killed by him is in point, as is the alleged episode in which the accused is said to have kicked his pregnant wife. According to the statement given by Ms Amare to the police, these incidents form part of a pattern of continuous conduct, all of which might be characterised by the jury as evidencing the accused’s attitude towards his wife: an attitude in which he regarded her as an undesirable and perhaps expendable chattel. If the jury accept this evidence, they could legitimately use it as part of a factual base from which to decide whether they are prepared to draw the inference that he intended to kill her when she was stabbed by him in Flemington on 10 November 2006.
The evidence is not to be led as demonstrating the accused’s bad character, or any propensity in him towards violence, or as establishing that he is the kind of person that would intend to kill his wife and therefore did so intend. It is only to be led as material from which the jury may if they think fit draw the inference that as a subjective fact the accused, himself, actually held the intention to kill his wife at the time she was stabbed by him on 10 November.
During the course of his interview with the police, an interview that occurred before Ms Amare made her police statement, the accused raised the issue of his past relationship with his wife. He asserted that it was good. He also said that he had never threatened or assaulted her. The evidence that the Crown proposes to call is in my opinion admissible in answer (if the jury accept it) to these propositions as put by the accused. They also tend to counter a suggestion made by him that he acted in self-defence, or that he was driven to do what he did by some inappropriate behaviour of hers towards the children.
Of course, if the proposed evidence does go before the jury, a warning will need to be given to them by me. That warning must, I think, encompass at least the matters to which I referred in paragraph 27 above. I will in due course hear counsel on this issue. In the meantime, the Crown may adduce so much of the contents of the police statements made by Ms Amare as are referred to in this judgment. Should the Crown propose to call from her any other evidence about events that occurred before she moved to Flemington, then application will have to be made in respect of each item of any such evidence. I have endeavoured to include in this ruling all those portions of her statement made on 30 November 2006 which not only concern events preceding her move to Flemington but also seem to me to be admissible. I may have missed something that is proper to go before the jury. Otherwise, nothing in that statement concerning events preceding that move may be led.
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