R v Borthwick (Ruling No 1)
[2011] VSC 230
•18 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2009 1621
| THE QUEEN |
| v |
| LEON JOSEPH BORTHWICK |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24 - 26 May 2010 | |
DATE OF RULING: | 26 May 2010 | |
DATE OF REASONS: | 18 April 2011 | |
CASE MAY BE CITED AS: | R v Borthwick (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 230 | Amended 30 May 2011. |
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EVIDENCE – Admissibility – Criminal proceeding – Tendency evidence – Whether significant probative value – Evidence inadmissible for purpose of proving accused’s tendency – Evidence admissible as relationship evidence - Evidence Act 2008 ss 97, 101.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams SC | Director of Public Prosecutions |
| For the Accused | Ms C Randazzo SC Mr G Casement | Revill & Papa Lawyers |
HER HONOUR:
The accused was presented on one count of murder. The prosecution alleged that he deliberately drove his vehicle at Mark Zimmer (‘the deceased’), killing him on 16 November 2008 at approximately 12.30am. It said that he did this because he was jealous of the deceased who had become involved in a relationship with his former girlfriend, Nicola Martin.
The prosecution gave written notice under s 97(1)(a) of the Evidence Act 2008 (‘the Act’) of its intention to adduce ‘tendency’ evidence under that section.
I ruled that the evidence was admissible as evidence of the relationship between the accused and the deceased but not as evidence of the accused’s tendency to act violently or with a particular state of mind. These are my reasons for that ruling.
The Act
Section 97 relevantly provides:
97 The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The Act goes on to provide:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The s 97 notice
The s 97 notice stated that the prosecution sought to lead tendency evidence to ‘demonstrate that at the time of killing the deceased, the accused had the intent to kill or cause really serious injury to the deceased’.
The alleged tendency was stated in the s 97 notice as the accused’s tendency to:
(a) act in a particular way, namely:
a tendency to act in an abusive, threatening and violent manner towards the deceased in an attempt to intimidate the deceased into ending his relationship with Nicola Martin.
(b) have a particular state of mind, namely:
that the accused was jealous of the deceased and obsessive and possessive of Nicola Martin and would resort to aggressive violent behaviour if necessary to end the deceased’s relationship with her.
Whilst it was not in dispute that the accused caused the deceased’s death by driving into him, the accused denied that he did so deliberately or with the intention of killing the deceased or causing him really serious injury. He maintained that he accidentally killed the deceased.
The prosecution submitted that it sought to lead the proposed tendency evidence to prove that the accused acted deliberately and with the relevant intent for the crime of murder.
The proposed tendency evidence
The s 97 notice provided particulars of 15 pieces of evidence as to the accused’s conduct which the prosecution sought to lead as evidence of the alleged tendency probative of his alleged state of mind in the early hours of 16 November 2008 when he killed the deceased.
Nos. 1 and 11
The particulars numbered 1 and 11 in the s 97 notice were of evidence from the deceased’s father, Christian Zimmer, and the deceased’s friends, Sean Heneric, Chernish Thomas, Stephanie Cardamone, Jeremy Dardenne and Jessica Cardamone.
Mr Zimmer made a statement at 1.20pm on 16 November 2008 in which he said that:
About a month or so ago Mark mentioned to [Mrs Ruth Zimmer] and I that a guy named Leon held a knife to him at a party and threatened him that if he doesn’t leave his ex-girlfriend alone he would kill him. I believe his ex-girlfriend’s name is Nicola. Mark told me that it had happened the night before at a party he was at.
Sean Heneric, Chernish Thomas, Stephanie Cardamone, Jeremy Dardenne and Jessica Cardamone all stated that they were present when the alleged incident with the knife occurred. No issue was taken with the prosecution summary of their evidence:
The accused questioned the deceased about his relationship with Nicola Martin. When the deceased denied a relationship the accused held a knife to the deceased’s crotch until a witness pulled him away.
The event was said to have occurred within the two months before 16 November 2008.
No 2
The particulars numbered 2 in the s 97 notice, were of Sean Heneric’s evidence of two telephone calls from the accused to the deceased which Mr Heneric overheard and recorded on his own phone when the deceased activated the loudspeaker on his mobile phone in Sean Heneric’s presence.
The prosecution summarised the evidence as follows:
The first call related to how much the accused loved Nicola Martin and the second call was more threatening as the accused believed the deceased was involved with Nicola Martin.
The calls were said to have been received on 23 October 2008 at 1.23pm and 1.27pm respectively.
Nos. 3 - 5
The particulars numbered 3 to 5 were of evidence from the statement made to police by Mr Christian Zimmer that the deceased had told him, in about late October 2008, that he had received threatening telephone calls and that they were scaring him.
Mr Zimmer stated that the deceased told him that he was receiving calls and text messages which included the statements: ‘I am going to kill you’ and ’I’m going to cut your tongue out’.
Mr Zimmer said further that his son told him that the accused had said to him that he would come to his house, break in and attack him. He did not indicate the date at which this information was provided, but he stated that, from 13 November 2008, he had not slept much at all, referring to the threats.
Mr Zimmer also stated that the deceased informed him after 7.30pm on 13 November 2008 that he had seen the accused at a park near his home and the accused had threatened him and warned him not to see Nicola Martin again.
No. 8
The particulars numbered 8 were of evidence of Sean Heneric to the effect that the accused man regularly telephoned him between mid-October 2008 and 15 November 2008 to interrogate him as to whether the deceased and Nicola Martin were dating.
No. 9
The particulars numbered 9 were of evidence from Mr Heneric of a telephone call he received from the accused in mid-October 2008 in which the accused demanded information from Mr Heneric as to the deceased’s address.
No. 10
The particulars numbered 10 were of Mr Heneric’s statement that the deceased received telephone calls from the accused between mid and late October 2008. In those calls, the accused threatened the deceased saying things such as, ’if you still see Nicola, I am going to tie you to a tree and hit you like a piñata’. The accused also said that he was going to kill the deceased. The calls were heard by Mr Heneric as the deceased had activated the loudspeaker on his mobile phone.
No. 12
The particulars numbered 12 were of evidence from Haldane Bensley to the effect that the accused approached him at his workplace at McDonalds, Endeavour Hills in mid-October 2008. The accused asked Mr Bensley for the deceased’s address and stated that he had already held a knife to the deceased’s genitals and would kill the deceased for his girlfriend.
No. 13
The particulars numbered 13 were of evidence from Mr John Raciti to the effect that the deceased had made a representation that the accused had threatened him and held a knife to him.
No. 14
The particulars numbered 14 were of evidence of Noel Amarasinghe to the effect that the deceased had told him, approximately three weeks before his death, that the accused had made death threats against him because of a girl he was seeing.
Submissions
Senior counsel for the prosecution submitted that the jury ought to be able to use the evidence that the accused had a tendency to act in a violent, threatening way to infer that that is the way he acted on the night at the time when he drove the car which struck the deceased.
Senior counsel submitted that there is an abundance of evidence to show that the accused had previously threatened to kill or harm the deceased and that his tendency to act in that way could be used as a step in the proof of what he did that night. The tendency evidence made it more likely that he acted consistently that night: driving deliberately at Mr Zimmer and with the relevant intent. The evidence sought to be adduced is of significant probative value in relation to the second and third elements of the crime of murder, namely that the act was done consciously, voluntarily and deliberately and with the relevant intent.
The primary submission of senior counsel for the accused was that the evidence sought to be adduced as ‘tendency’ evidence under s 97 was not probative of the accused’s state of mind on the night of the deceased’s death. Even if it were considered probative of that state of mind, it should not be regarded as being of ‘significant’ or ‘important’ or ‘of consequence’ in terms of its probative value within the meaning attributed to the word ‘significant’ in s 97(1)(b) by Hunt CJ at CL in R v Lockyer.[1]
[1]89 A Crim R 457, 459.
Senior counsel for the accused argued that the evidence did not have the similarities required to give it the suggested significant probative value: citing CGL v DPP.[2] Senior counsel noted that the issues of the accused’s mental state and his intent were the major questions for the jury. According to her, given their fundamental importance, the evidence should be more probative before its value in that regard can properly be characterised as ‘significant’ under s 97.[3]
[2]CGL v DPP [2010] VSCA 26.
[3]Citing R v Lockyer (1996) 89 A Crim R 457, 459 (Hunt CJ at CL).
In any event, senior counsel submitted, the evidence should not be admitted because its probative value did not substantially outweigh any prejudicial effect it might have on the accused, as required by s 101(2) of the Act.
Discussion and conclusions
In my view, the evidence referred to in the s 97 notice was probative of the accused’s tendency to make oral threats (including threats to kill) and to behave in a physically threatening manner towards the deceased in the context of his jealousy of the deceased and his obsessive and possessive feelings towards Nicola Martin.
The evidence of that tendency of the accused could form part of the evidence from which his state of mind and the conscious, voluntary and deliberate nature of his acts on 16 November 2008 might be inferred.
Nevertheless, I was not satisfied that the probative value should be classified as ‘significant’, in the sense of ‘important’ or ‘of consequence’ attributed to the adjective by Wood CJ at CL in the passage in R v Lockyer[4] to which senior counsel for the accused referred. Accordingly, s 101(2) applied and the evidence could not be used against the accused as tendency evidence.
[4](1996) 89 A Crim R 457, 459.
However, I was satisfied that the evidence was evidence of the relationship between the deceased and the accused and admissible to provide the context in which the otherwise isolated acts on 16 November 2008 might be viewed.
As Barwick CJ said in Wilson v R:[5]
It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.
In that case, the issue before the jury was as to whether a husband shot his wife accidentally or not. Such evidence is admissible under the Act when not admitted as evidence of the accused’s tendency to kill.[6]
[5](1970) 123 CLR 334, 337.
[6]R v Serratore (1999) 48 NSWLR 101, 107-8 [17]-[22] (Dunford J (Greg James J and Smart A-J agreeing)).
I was not persuaded by the argument that this evidence should be excluded under s 137 of the Act on the basis of its probative value being substantially outweighed by the danger of unfair prejudice to the accused. The jury could be given proper directions as to their obligation not to treat the evidence as evidence of propensity or tendency and the nature of the evidence was not such that it ought to have been excluded as unfairly prejudicial. In my view, the jury would be able to distinguish between the relevant notions. It would not be faced with evidence which would engage its emotions and result in it reasoning, in an unacceptable way, from past behaviour to present intent on the basis that the accused would be likely to behave that way.
I allowed the evidence to be adduced as evidence of the relationship of the deceased and the accused man and to provide the relevant context.
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