R v Borg (Ruling No 2)
[2012] VSC 32
•8 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 99 of 2011
| THE QUEEN |
| v |
| LEONARD BORG |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24 and 25 January 2012 | |
DATE OF RULING: | 8 February 2012 | |
CASE MAY BE CITED AS: | R v Borg (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 32 | |
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CRIMINAL LAW – Pre-trial ruling – Admissibility of evidence concerning premises at 1 Rosanna Court, Craigieburn – Evidentiary foundation for accused’s alleged belief – Admissibility of relationship evidence – Sections 55 & 56 of the Evidence Act 2008 – R v Anderson (2000) 1 VR 1 at 13 – Washer v Western Australia (2007) 234 CLR 492 at 498
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Mark Gibson Ms Raelene Sharp | Office of Public Prosecutions |
| For the Accused | Ms Carmen Randazzo SC Ms Samantha Poulter | Theo Magazis & Associates |
HIS HONOUR:
Leonard Borg is charged with the murder of Peter Rule. The Crown case is that the accused murdered Rule on 15 November 2009 at Campbellfield. The accused has been arraigned and pleaded not guilty and counsel for the defence has indicated that the accused will deny any involvement in the death of the deceased.
A summary of the factual basis of the Crown case against the accused is set out in DPP v Borg (Ruling No. 1).[1]
[1][2012] VSC 26R.
This ruling is concerned with two related issues. First, objection has been taken to evidence being led concerning premises at 1 Rosanna Court, Craigieburn at which it was alleged that the accused was growing a hydroponic cannabis crop. The Crown has submitted that the accused believed that the deceased informed the police about this crop. This evidence is therefore said to be relevant to the issue of motive.
Secondly, the Crown propose to lead certain evidence as part of their case which, according to the Crown’s written opening which has been filed, is evidence of the relationship between the accused and the deceased. The purpose of that evidence is to establish, among other things, that there was hostility between the accused and the deceased, including over the cannabis crop to which I have just referred.
The Premises at 1 Rosanna Court Craigieburn
Dale Orr, the partner of the accused man’s sister, owned residential premises at 1 Rosanna Court, Craigieburn. Borg is said to have lived there until early 2009. The witness, Daniel Harris, owned the premises immediately prior to Orr and went there occasionally to collect mail. He said in a statement to police that he had been told by Borg that Borg was using the premises to grow cannabis. On one occasion, Harris went there and saw that that was the case. He told police that he saw a hydroponic crop upstairs on the 2nd level with about 20 plants. He said he did not speak to Borg about what he had seen and did not want to be involved.
In March 2009, the police information line “Crime Stoppers” received information from an anonymous female caller that drugs were being grown at the premises. The caller said that she had seen men carrying white coloured plastic bags into the premises and two vehicles coming and going from the premises, mostly at night. Police conducted covert surveillance and made various observations consistent with the cultivation of drugs at the premises but, when police raided the premises on 24 August 2009, nothing was found.
The evidence given by the witness, Michael Spiropoulos, is centrally important to the Crown case because of his description of what he was told by the accused about having killed Rule, and the assistance that he said he gave Borg in disposing of Rule’s body. In a statement to police, Spiropoulos said the following about the police raid at the Rosanna Court address:[2]
Leonard had actually told me a few months beforehand about a bloke who had dobbed him in - he mentioned the name Peter - so Leonard knows that Peter had dobbed him in. He had said about knocking off the bloke who had dobbed him in.
[2]Depositions at 266.
Submissions
The Crown have indicated that they will seek to lead Spiropoulos’ statement and other evidence concerning the use of the premises by the accused as evidence of a motive for Borg to kill Rule on the basis that he believed that Rule had informed on him and might do so again. The defence has submitted that there is no evidence to support a finding that there was actually a cannabis crop at the premises and, as a result, no evidence to form the basis of Spiropoulos’ statement. Senior counsel for the accused has submitted that the evidence about the premises that would otherwise support the informing motive is therefore rendered inadmissible.
Mr Gibson of counsel for the Crown has submitted that Spiropoulos’ statement to police refers to a belief that the accused held that Rule had informed on him about the cannabis crop at 1 Rosanna Court and that as a result, the police raided the premises on 24 August 2009. As such, the Crown submits, this evidence is relevant to the accused's state of mind and, in particular, to the issue of motive. It appears to be the case that the voice that rang Crime Stoppers was a female voice but that is of little importance due to the manner in which the Crown wish to use this evidence. The point is that there is evidence that there was a drug crop at 1 Rosanna Court and the accused held a belief that the deceased had informed the police about it.
The Crown submitted that there is evidence to support a finding that Borg was involved in the cultivation of drugs at the Rosanna Court premises. In particular, the Crown points to the evidence of Spiropoulos, the recording of the phone call to Crime Stoppers, and the evidence of Daniel Harris. Harris made a statement to police on 6 May 2010 and gave evidence at the committal hearing that he had seen the cannabis crop,[3] and that Borg had asked him whether he thought that Rule had informed on him about the cultivation of cannabis at the Rosanna Court premises.[4]
[3]Depositions at 62.
[4]Depositions at 202 and pre-trial transcript at 195-6.
The Crown also submitted that there is evidence of the accused having invested heavily in the second cannabis crop that he and Spiropoulos had established at the Thomastown factory, in particular, by obtaining two bank loans, one from the National Australia Bank for $10,000 and one from Westpac for $25,000. The significant expense that Borg and Spiropoulos had invested in this crop supports a finding that one motive for the alleged murder was that Borg did not want to take the risk that Rule would inform on him again.
Mr Gibson submitted that the evidence of the alleged cultivation of drugs at the Rosanna Court address is also relevant to the relationship between Borg and Rule. I will refer to this aspect again in the second part of this ruling but ultimately the basis of the relevance of the evidence is the same.
Ms Randazzo, senior counsel for the accused, challenged the evidence about cultivation of drugs at the Rosanna Court address on the basis that the police did not locate a crop when they raided the premises on 24 August 2009. She submitted that there is, therefore, no evidentiary foundation for the conversation that Spiropoulos says he had with the accused. Further, although Harris says that he saw the cannabis crop, counsel for the accused submitted that he never communicated to Borg that he had seen it. In my opinion that would not be a prerequisite for the admission of the evidence.
Despite the fact that Harris said that Borg told him that Rule had informed on Borg, counsel for the accused also pointed to the fact that there is no evidence that Rule actually did report the matter to the police.[5] Again, in my opinion, if the evidence demonstrates, as the Crown say it does, that the accused man believed that the deceased had informed on him then that is evidence relevant to the state of mind of the accused and relevant to issue of whether it was him who caused the death of the accused. It is not necessary for the Crown to establish that the deceased did inform the police as the accused believed.
[5]Defence counsel pointed in particular to the fact that the call to Crime Stoppers appears to have been made by a female.
Prejudice
Counsel for the accused also submitted that there is little probative weight to the evidence from Spiropoulos or Harris about the Rosanna Court premises being used to cultivate cannabis but, in the alternative, if there is probative weight, it is so slight that it is outweighed by the prejudice to accused.
As best as I could follow the argument put by senior counsel for the accused, she was submitting that there could be no claim of prejudice where there was some direct evidence of the cannabis crop which put denying it out of the question. Whether it puts denying the existence of the crop out of the question, there is direct evidence from Daniel Harris who said that he went to the premises and saw the crop.
Ms Randazzo’s argument about prejudice also seemed to be linked to the chronology of events, in that she submitted that there was a significant period of time between the raid of the Rosanna Court premises and Rule’s disappearance. However, the chronology includes the evidence that the premises was visited by the police on 24 August 2009 and Peter Rule was killed on or about 15 November 2009. The period of time between the two events is not, in my opinion, so significant as to make the evidence irrelevant or inadmissible.
It was also put by senior counsel for the accused that the Crown want a “trial within a trial” on the issue of whether cannabis was being grown at the Rosanna Court premises. If I have correctly stated the argument, I have difficulty with it. The issue to which this evidence is relevant is the issue of motive. It is open to the accused to contest the assertion that he believed the deceased had informed on him or even said so either to Spiropoulos or Harris. As counsel for the Crown submitted, it is difficult to see how there could be any real prejudice from this evidence given that the defence has conceded that he was cultivating a such a crop at the factory in Thomastown.
Conclusion: evidence about Rosanna Court premises
In my opinion, the evidence about the premises at 1 Rosanna Court should be admitted as evidence supporting the conclusion that the accused had a motive for murdering the deceased. The evidence is relevant as going to the intention of the accused on the basis that there is evidence to suggest that there was such a crop and that it was closed down because the accused believed the deceased had informed the police about it.
It is not necessary for the Crown to prove the existence of the crop before this evidence is relevant and admissible because its primary relevance is to the belief of the accused. Although a jury may decide that there is insufficient evidence to support a finding that drugs were being cultivated at the premises, and that Borg believed that Rule informed on him, that is a matter for them. That possibility is not a factor that renders the evidence inadmissible.
In the context of this case I am unable to accept that there will be any unfair prejudice to the accused arising from the admission of the evidence. As earlier noted, there will be other evidence concerning the cannabis crops at the Thomastown premises, including borrowings by Spiropoulos to contribute to the cost of the establishment and maintenance of that crop. The admissibility of that evidence is not in contest.
The “Relationship” Evidence
Counsel for the accused has challenged the admissibility of certain evidence that the Crown seeks to lead as evidence of the relationship between the accused and the deceased. The relevant part of the Crown Opening is in the following terms:
In the months and years leading up to when the deceased went missing, the relationship between the deceased and Borg was largely one of mateship but was punctuated by periods of extreme animus, bad blood, resentment and ill feeling between the two of them. This manifested itself by:
(i)occasional overt threats of violence levelled at the deceased by Borg;
(ii)occasional physical violence between the two of them; and
(iii)occasional verbal disagreements.
For example:
(a)In approximately 2006 whilst Philip Lancaster was staying at the deceased’s home, Borg and the deceased had an altercation which resulted in Borg threatening to not only kill the deceased but to do it in circumstances where the deceased would not expect it and in circumstances where his remains would never be found. “I’m going to get even with that bastard and when I do he won’t know when it’s coming and they will never find him” (Lancaster page 38-39 committal & page 191 depositions).
(b)In 2007 (prior to Borg travelling to Malta the first time) Borg lent/gave the deceased a Toyota Camry motor vehicle worth approximately $2,500-$3,000 (page 582 depositions). The deceased sold the vehicle and retained the money. Borg “voiced his disapproval” at what the deceased had done to Phil Lancaster and this was a cause of ill feeling by Borg to the deceased (page 191 depositions & page 36-7 committal).
(c)In late 2008/early 2009, Borg and the deceased had a falling out/disagreement over a motor bike (Kathleen Harris page 11 committal).
(d)In about August 2009, just before the police attended the Rosanna Court premises, Daniel Harris, the deceased and Borg were all driving together over the Westgate Bridge. A verbal argument started between the deceased and Borg. This escalated into a physical altercation between the two of them (page 202 depositions & page 65 committal).
The Prosecution say the timing of this incident when coupled with the timing of the police raid a week later (page 2020 depositions) and the belief in the accused that the deceased had informed on him regarding the Rosanna Court crop are all relevant to a growing animus harboured by Borg towards the deceased.
(e)For a period of time prior to October 2009, the deceased and Borg had a “falling out” over something illegal. The result was that each would go out of their way to avoid the other (Todd page 183 depositions & committal page 16-17).
(f)A few months before October 2009, Borg told Spiropoulos about a bloke named Peter who had “dobbed him in” for the Rosanna Court cannabis crop (page 266 depositions & page 320 depositions: Spiropoulos).
(g)During this period of time (August 2009) the deceased let it be known to Borg that he (the deceased) was aware that Borg was growing cannabis in a factory. “Peter said to Louie that he knew that Louie had a factory and was growing cannabis there” (Harris page 2020 depositions). Borg responded by telling the deceased to “get fucked you cunt” (Harris page 202 depositions).
The Prosecution say that this knowledge possessed by Borg (that the deceased knew of Borg’s new cannabis growing exploits) coupled with Borg’s previously expressed disapproval of the deceased for informing on him in relation to the Rosanna Court premises, led to:
i)an escalating level of displeasure/animus towards the deceased in the months leading up to November 2009; and
ii)a fear that his current cannabis growing exploits could be the subject of attention by the police.
(h)In late 2009, shortly before the deceased went missing, Borg was travelling in the car with Daniel Harris. The topic of conversation was the deceased and how silly he had been. Borg made it be known that he intended to cause harm to the deceased; “I’ll get that cunt”, he said (Harris committal page 66 & depositions page 203).
The Crown opening includes the phrase “for example” but I am proceeding on the basis that the extract above is a complete summary of the evidence in this category.
During the preliminary part of the argument, I expressed some misgivings about the admissibility of paragraphs (a), (b), (c) and (e). Following consideration, Mr Gibson, the trial prosecutor, said, as to paragraphs (b), (c) & (e):[6]
I don't wish to press those matters, but on this condition, that in the event that it is suggested by my learned friend to those witnesses that the relationship at all times between Spiropoulos and Borg was a good one, that they were friends at all times, then in my submission, I would like to revisit the question so as to be able to put those matters in re-examination.
In my opinion, that is an appropriate course to follow.
[6]Pre-trial transcript at 307.
However as to paragraph (a), he wished to press for the admission of that evidence and made additional submissions about it. Notwithstanding the helpful submissions he made, I will not admit that evidence for reasons that I set out in detail, below.
In deciding whether the remaining evidence is admissible, it is necessary to examine the evidence set out in the depositions and at the committal proceeding as well what appears in the summary of the Crown’s opening. I will deal with each item separately and express my conclusion as I do so.
Generally, of course, the primary question for each of these pieces of evidence is whether they are relevant, pursuant to ss 55 & 56 of the Evidence Act 2008.
A consideration of relevance, “…requires consideration of the process of reasoning by which [the] information… could rationally affect the assessment of the probabilities. The word “rationally” is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial”.[7]
[7]Per Gleeson CJ, Heydon & Crennan JJ in Washer v Western Australia (2007) 234 CLR 492 at 498.
In this case, the primary issue that will arise is whether the Crown can prove beyond reasonable doubt that it was the accused man who caused the death of the deceased. The Crown assert that these particular parts of the evidence that they wish to put forward as “relationship evidence” demonstrate that a state of animosity existed between the two men between 2006 and 2009.
As to how that might be relevant, as Winneke P said in R v Anderson:[8]
Evidence of the relationship between the parties has been admitted, not simply because it describes the relationship of the parties but because particular acts or statements occurring within that relationship are relevant to the issues arising in the case.
[8](2000) 1 VR 1 at 13.
Other principles relevant to the issue of admissibility of such evidence include:
· the relevance and probative value of such evidence may be assessed on whether it supports a conclusion that there was an ongoing relationship;
· that ongoing relationship was sufficiently proximate to the offence charged – in this case, an offence allegedly occurring in November 2009; and
· whether there is a danger of unfair prejudice to the accused in admitting the evidence.
I will now deal specifically with the categories of evidence in the Crown opening.
Paragraph (a) – The 2006 incident
This evidence comes from the witness Phillip Lancaster. Lancaster was a friend of the deceased and met the accused through him in about 2006. He observed that Borg and Rule had become good friends. He claimed to have observed a “festering” relationship between Borg and Rule. His statement then contains the following:[9]
On one occasion at Mitchell Crescent, Peter and Louie were having an argument over the money and tools they got from a job. Peter was calling Louie names and shaping up to Louie wanting a fight. Louie left before anything happened.
I can’t remember when it was said, but I was still living in Mitchell Crescent at the time. Louie came over, but Peter wasn’t home. Louie came into the house. We were just sitting around and talking when Louie said, “When I get even with that bastard. He won’t even know when it’s going to happen. And when it does happen they’ll never find him. “ Louie was referring to Peter. I’m not sure but I think there may have been others present as there was always someone there.
[9]Depositions at 191.
This matter was raised with Lancaster in his evidence at the committal as follows:[10]
[10]Depositions at 38-39.
Did you ever hear Louie threaten Peter?---I never heard ever Louie threatening Peter. Just only one occasion where he's made a statement which stood out to me and, um, he sort of like reflected on it and he says, "I'm going to get even with that bastard and when I do he won't know and it's going to happen," or something like that.
Something like that?---I can remember it clearly if I just think about it.
Have a think?---He said, um, "I'm going to get even with that bastard." And something, "And when I do he won't know when it's coming and then they will never find him," to those words or that effect.
Why do you say that Louie was referring to Peter?---Um, Because of something that happened between him and Peter, I'm not sure whether it was in ‑ ‑ ‑
What was that?---Well, they had a blue in the truck. I'm not sure which fight it was that he was referring to but it sort of stood out in my mind because that's unusual for Louie to say something like that.
You're talking about an event back in 2004, 2005 ‑ ‑ ‑ ?---Look, mate, all I can tell you, I don't know the days, the dates because we never knew this was going to happen. If I thought something was going to happen to Peter I would keep a record of it but I didn't. I'm not sure of days and dates. All I can tell you is what I can remember.
But you can place it by the time you we reliving in
Mitchell Crescent?---Well, I lived in Mitchell Crescent four years. I can't give you a date from the day I moved in from the day I left the place. It was said sometime that occurred in the kitchen.So what you're saying now is ‑ ‑ ‑
HIS HONOUR: Sorry, I just missed that answer. You said something about a kitchen?---I think that Louie and I was in the kitchen at Mitchell Crescent and Peter wasn't there and he was pretty upset with Peter and he made that broad statement which was out of context to the person that I know.
But he didn't name Peter, did he?---No, no. He just said when said, "When I get even with the bastard" ‑ ‑ ‑
You say you thought he was referring to Peter?---Well, you know, I don't know anybody else who he'd be referring to.
And it was referring to an incident that you were not present for?---That's correct.
And you don't know what that incident is?---I don't know what it is.
This is all back before 2006?---I don't know. I can't tell you dates.
Well I go back to what you said in your statement ‑ ‑ ‑ ?---Well, the statement ‑ ‑ ‑
"I stayed with him for a couple of years and moved out in about 2006. You're speaking of Mitchell Crescent?---Well, I moved out in 2006 but I can't – see, it's all very well, I go the police station and make a statement on a date but I don't know what's gone chronologically before that. Now you're asking me questions that I can't give you an answer to. All I can give you is what I can remember clearly and we're going over the same track over and over again. It's just to me it doesn't make sense.
What I'm putting to you is you are purporting to get a memory from at least three and as much as five years before of something that was said by Louie without naming the person over an incident that you didn't see or know what it was of. That's right, isn't it?---That's correct.
In the course of his submissions about this evidence, Mr Gibson for the Director of Public Prosecutions submitted that upon analysis this was evidence of a number of incidents demonstrating hostility by the accused to the deceased. He argued that when the evidence was examined this incident may have occurred as little as two years prior to the disappearance of the deceased. Be that as it may, in my opinion problems remain about admitting this evidence.
First, the reality is that the witness is not clear about when this incident occurred and, given the nature of the evidence, a closer proximity to the event may be required. The Crown say this is a statement of intent but it was said at least two years prior to the date on which Rule is alleged to have been murdered by the accused. Secondly, a significant problem for the admission of this evidence seems to me to be that in order for its relevance to be examined, a starting point must be to establish that, assuming the words were spoken by the accused to Lancaster, they referred to the deceased man, Peter Rule.
As the evidence above demonstrates, Lancaster does not say that the accused referred to Rule by name in any way at all. In the course of submissions on that issue, the following argument was put by Mr Gibson:
HIS HONOUR: Mr Gibson, one thing I need to ask you about, in relation to paragraph (a), what do you say about the submission that it can't be known on the evidence that it was Rule who was being referred to?
MR GIBSON: Mr Lancaster says, "Who else were we talking about?"
HIS HONOUR: It was his belief, but is there any other evidence to indicate that it was Rule who was being referred to?
MR GIBSON: Mr Lancaster, both in his statement, but more particularly in his committal evidence, was trying to convey that, "He was the only one we were speaking about". So the passage at 38, 39, top of page 40.
HIS HONOUR: "I don't know anyone else he'd been referring to."
MR GIBSON: Yes, that is the evidence, and Your Honour can infer from that that Mr Lancaster was adamant that it was Peter and only Peter that they were talking about.
Given that the evidence is that Rule was not referred to at all, that step requires an acceptance of the opinion of Lancaster that it was Rule who was being referred to by the accused. Arguably that evidence would breach the opinion rule in s 76 of the Evidence Act 2008 and would not fall within the exceptions in s 78.
Even if that were not the case, in my opinion I would exclude this evidence pursuant to s 137 of the Evidence Act 2008.
Paragraph (d), (f), (g) & (h) – August 2009
The incidents described in paragraphs (d), (g) & (h) each involve the witness Daniel Harris.
As to (d), Daniel Harris said in his police statement:
About a week before the police went around to the house,[11] Peter and Louie had an argument in my truck. The argument started over Louie laughing at Peter because Peter recently had a blue with some Maoris in a car. Peter went ballistic over this, and they started fighting in the actual truck. I was driving over the Westgate Bridge at the time and told them to either get out or shut up, they stopped.
[11]This is a reference to the police going to 1 Rosanna Court Craigieburn on 24 August 2009.
At the committal proceeding the following evidence was given about this incident:
MR LEWIS: Mr Harris, you relate in your police statement an incident when you were - I think crossing the - on the Westgate Freeway, I may be wrong about that. Yes, driving over the Westgate Bridge. Louis had been having a joke with Peter, because Peter in turn had had a fight with some Maori people. Is that right?---Yeah.
Peter didn't take that as a joke?---No.
Is that right?---No.
And he became aggressive?---Yes.
This was in the way that he would become aggressive quite suddenly over very little; is that right?---He just got - he just got angry with Louis.
And started hitting him, did he?---Yep.
You told him to cut it out; is that right?---I told him to shut up or get out.
And that was that?---And that was that.
The defence also objected to the admission of this evidence on the basis that it does not show that it was Borg who was being aggressive. However, for hostility in this relationship to be relevant and admissible, it is not a requirement that it be demonstrated that the aggressor in the hostility necessarily be the accused. On that basis, I consider that this evidence is admissible and I am not convinced that it should otherwise be excluded.
As to (f) and (g), both of those pieces of evidence fall within the conclusion I have reached in relation to the admissibility of the evidence concerning 1 Rosanna Court, Craigieburn.
The incident in paragraph (h) relates to a time when the accused, Harris and Phil Lancaster were travelling in the car together in late 2009 and, according to Harris, they were talking about Rule. In his statement to police, Harris says that the accused said, “I’ll get that cunt”.[12]
[12]Depositions at 202.
Senior counsel for the accused submitted that there is no evidence to suggest that this statement was made in relation to Rule, and there is no indication of the context in which it was said such that it cannot be considered relevant.
I cannot agree with that submission. The evidence given by Harris at the committal on this issue is, as follows:[13]
[13]Depositions at 66.
I want you to tell me more about the conversation that you say took place late in 2009 when you were in a car with Louis and Phil Lancaster. You relate this in your statement. What was that conversation about, please?---Well, I don't know what it started over, we were just talking about Peter. And Louis just said, "I'll get that cunt", that's - that's - that's virtually about it, and that was the end of it.
What was the context of that? What were you talking about in relation to him?---Might - at one stage might've been talking about how silly Peter was or something, or doing something. But you know - - -
So that comment would be made in the context of you having a discussion about Peter being stupid or silly, or doing something?---Yeah.
And you did tell the police that you didn't know whether Louis said that seriously or not; is that right?---No, that's right. We just didn't worry about it.
The statement was made close in time to the alleged murder, and the evidence is clear that it was a comment in the context of a conversation about Rule. Taken in combination with the admissible relationship evidence, and the evidence of a motive on behalf of the accused, this paragraph (h) is evidence that is relevant and admissible.
Conclusion: relationship evidence
By reference to the summary in the Crown opening described in paragraph [22], above, I conclude that the evidence summarised in paragraphs (d), (f), (g) & (h) is relevant and admissible. I will not admit the evidence summarised in paragraphs (a), (b), (c) and (e).
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