R v Booth; R v Welsh; R v Vickerstaff
[2019] ACTSC 187
•8 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Booth; R v Welsh; R v Vickerstaff |
Citation: | [2019] ACTSC 187 |
Hearing Date: | 8 July 2019 |
DecisionDate: | 8 July 2019 |
Before: | Murrell CJ |
Decision: | Previous representations 1(b), 2(a), 2(b), and 3(b) are admitted. An inspection is granted at three locations. |
Catchwords: | EVIDENCE – PREVIOUS REPRESENTATIONS – Maker unavailable – Deceased – Relevance – Probative value – Whether prejudicial to the accused. EVIDENCE – TAKING OF EVIDENCE – View – Whether an inspection would assist the jury – Trial judge may be persuaded to order a view based on evidence at trial. CRIMINAL LAW – JURY DIRECTION – Lie as consciousness of guilt. |
Legislation Cited: | Criminal Code 2002 (ACT) s 45A Evidence Act 2011 (ACT) ss 50, 53, 65, 135, 137, 192A, dictionary |
Cases Cited: | Edwards v The Queen (1993) 178 CLR 193 R v Cook [2004] NSWCCA 52 |
Parties: | The Queen (Crown) Colin Maxwell Booth (Accused) Dean Phillip Welsh (Accused) Graeme Jarrett Vickerstaff (Accused) |
Representation: | Counsel R Christensen (Crown) S McLaughlin (Accused Booth) J Moffett (Accused Welsh) J Purnell SC with J Dempster (Accused Vickerstaff) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused Booth) Aboriginal Legal Service (Accused Welsh) Aulich Criminal Law (Accused Vickerstaff) | |
File Numbers: | SCC 272 of 2018; SCC 273 of 2018; SCC 274 of 2018 |
Murrell CJ
The Applications
The accused are charged that, on 17 December 2017, they murdered Bobby Stuart Allan (the deceased) at 47 Goodenia Street, Rivett. The Crown relies on s 45A of the Criminal Code 2002 (ACT) (joint commission).
The trial is listed for six weeks, commencing on 2 September 2019.
Pursuant to s 192A of the Evidence Act 2011 (ACT) (Evidence Act), which concerns advance rulings and findings on the admissibility or use of evidence, the Crown applies for rulings that:
(a)Six previous representations by the deceased be admitted at the trial;
(b)There be an inspection of various locations associated with the alleged offence; and
(c)A representation by the accused Mr Vickerstaff be admitted against him as a lie capable of demonstrating a consciousness of guilt.
Crown case
It is the Crown case that the deceased used and occasionally supplied methylamphetamine. He lived at 47 Goodenia Street, Rivett, where CD also resided. Mr Vickerstaff was CD’s boyfriend. Mr Vickerstaff and CD were drug users.
The Crown alleges that, on 17 December 2017, the accused decided to rob the deceased, believing that he was (or was likely to be) in possession of a significant sum of money and/or drugs. Further, Mr Vickerstaff believed that the deceased was harming and/or intimately involved with CD.
It is the Crown case that the accused travelled from a service station in Fyshwick to Rivett in a motor vehicle, a trip that would have taken about 10 minutes. They parked their vehicle about 280 metres from 47 Goodenia Street, in a carpark outside the Noah’s Ark Childcare Centre in Rivett. One or more civilian witnesses saw them exiting the vehicle.
The Crown alleges that the accused went to 47 Goodenia Street, Rivett where, in the early hours of 17 December, there was a violent altercation. In the course of the altercation, the deceased sustained serious injuries. The deceased made his way to 22 Goodenia Street, Rivett, where he died on the doorstep at about 5:30 AM, substantially due to the injuries that he had sustained during the altercation.
The Crown says that, after the altercation, Mr Vickerstaff separated from the other accused. In the company of another witness, he drove the deceased’s vehicle to Fisher, a nearby suburb. Mr Vickerstaff and the witness went to a laneway. The witness departed the laneway by taxi and Mr Vickerstaff rode away on a bicycle. After they left 47 Goodenia Street, Messrs Booth and Welsh returned to the vehicle outside the Noah’s Ark Child Care Centre, discovered that the vehicle had a flat tyre, and went to a nearby location from where they caught a taxi to the McDonald’s fast food outlet at Manuka.
Admission of previous representations by the deceased
Relying on s 65(2)(b), (c) and/or (d) of the Evidence Act, the Crown seeks a ruling that the following representations made by the deceased be admitted at the trial.
Representations made to the deceased’s friend/associate BW
1(a) The deceased had met a guy who could go halves in the cost of purchasing an ounce of drugs (representation made at about 9:00 PM on 16 December 2017).
1(b) The deceased was going to see “B and M”, i.e. the deceased’s friend/associate BX and his partner MG (representation made at about 12:30 AM on 17 December 2017).
Representations made to the deceased’s friend/associate BX
2(a) The deceased was in the city and would stop by on his way home (representation made at about 10:30 PM on 16 December 2017).
2(b) The deceased would come to BX’s place soon (representation made at about 1:06 AM on 17 December 2017).
Representations made to the deceased’s friend/associate LC
3(a) Some drugs that the deceased owned had been tampered with or “cut” and he assumed it was [CD] (representation made on about 12 December 2017)
3(b) The deceased had just been paid about $2,500 and he wanted to go out and do something (representation made on about 16 December 2017)
There is no dispute that the deceased is “unavailable” within the meaning of s 65(1) and s 4(1)(a) of Part 2 of the Dictionary to the Evidence Act. Further, the circumstances in which the representations were made indicate that they were reliable; they were made to friends and associates prior to the altercation and in circumstances where the deceased could not have foreseen the events that occurred. The issue is whether the evidence is relevant; whether it has probative value.
The Crown submits that the evidence establishes:
(a)The deceased’s involvement in purchasing and selling drugs.
(b)The deceased’s movements in the period leading up to his death.
The Crown submits that, insofar as the representations establish that the deceased was involved in purchasing and supplying drugs, they inform the relationship between the parties. In particular, they may go towards establishing motive on the part of the accused; that the accused were motivated to attack the deceased because they believed that he possessed money or drugs in the early hours of 17 December 2017.
While, of itself, no representation directly establishes motive on the part of the accused or says much about the relationship between the parties, taken together the representations go to the deceased’s intentions and involvement in purchasing and selling drugs immediately prior to the incident, and to his actual and intended movements in the period leading up to his death. On the Crown case, the accused’s drug dealing and movements on the night in question were interrelated. The representations assist to establish circumstances upon which the Crown wishes to rely as part of its circumstantial case, including its case on motive.
Prima facie, the Crown should be permitted to lead the representation evidence in support of the circumstances that the deceased was involved in purchasing and selling drugs (including on the night in question), and that he went to certain locations and interacted with certain persons in the period leading up to the incident (although, as far as the evidence shows, he did not interact with the accused on the day of the incident).
Nevertheless, I would exclude representations 1(a) and 3(a) pursuant to s 135 and/or s 137 of the Evidence Act. As to 1(a), the manner and quantity of drugs that the deceased hoped to purchase is of minimal relevance; it is what he did that is significant. The admission of this evidence would be a distraction. As to 3(a), the deceased’s fears about whether others (particularly Mr Vickerstaff’s girlfriend) were interfering with his drugs may invite speculation that is prejudicial to the accused and is of little, if any probative value.
Inspection of properties
Pursuant to s 53 of the Evidence Act, the Crown seeks an order that there be an inspection of various places.
The accused concede that the jury would be assisted by viewing 22 and 47 Goodenia Street. I am satisfied that such an inspection would assist the jury to resolve issues of fact, or to understand the evidence. Furthermore, I am satisfied that the other considerations that are relevant under s 53(3) support the making of the order.
I am also satisfied that the jury would be assisted by a view of the area near Noah’s Ark Childcare Centre, where the accused allegedly left their vehicle in a car park before walking to 47 Goodenia Street. First, a view would assist the jury to understand the relationship between that location and the location of the alleged offence. Second, a view would enable the jury to understand and assess the observations of the vehicle and occupants that were made by civilian witnesses.
Based on the material before me, I am not satisfied that the jury would be assisted by a view of the service station in Fyshwick or the locations to which the accused allegedly went after the offence. These locations can be described adequately by maps, photographs, and the measurement of distances. I am not persuaded that a view of the locations would enhance the jury’s appreciation of other evidence. However, as the evidence unfolds at the trial, the Crown may be able to persuade the trial judge that a view should be ordered.
Admission of representation by Mr Vickerstaff
Although the Crown initially applied for a ruling on the admissibility of an asserted lie by Mr Vickerstaff, at the hearing of the pre-trial application the parties agreed that this matter should be dealt with at the trial.
The Crown wishes to call evidence from a police officer that, on the day after the offence when he spoke to Mr Vickerstaff and asked him whether he knew the deceased, Mr Vickerstaff said that he knew the deceased but “had not seen the deceased for months”.
In order to establish that the statement was a lie, the Crown proposes to tender admissions by Mr Vickerstaff that:
(a)He saw and spoke to the deceased on 14 December 2017.
(b)He was or “might have been” present when the altercation occurred.
(c)He went to the deceased’s house in the early hours of 17 December to obtain drugs for Mr Welsh but was not present when the altercation occurred.
(d)He attended 47 Goodenia Street, Rivett, on a daily basis to see the deceased, drove there on 14 December and saw the deceased, and was present on the morning of 17 December, when the deceased answered the front door.
Mr Vickerstaff intends to dispute the evidence that he made the statement that the Crown says is a lie.
As discussed in Edwards v The Queen (1993) 178 CLR 193, a statement by an accused may be used as a lie evidencing consciousness of guilt if the jury is satisfied that:
(a)The accused made the statement;
(b)The statement is untrue and was a deliberate lie;
(c)It related to a material issue connected with the alleged offence; and
(d)The motive for the lie was the realisation that the truth would implicate him in relation to commission of the offence.
The issues of whether a statement was made and whether it evidences a consciousness of guilt are matters for the jury: R v Cook [2004] NSWCCA 52 at [43].
It would appear that, at the trial, the issues will be whether Mr Vickerstaff made the statement and, if so, whether he lied because he realised that the truth would implicate him in the commission of the offence. Both these questions are matters for the jury.
Other Issues
The Crown foreshadowed that, pursuant to s 50 of the Evidence Act, it would seek to present evidence of telephone communications in the form of a summary.
The accused indicated that it was likely that they would consent to the application and the application was listed for mention at 9:45 AM on 17 July 2019.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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