R v Bracken (Ruling Nos 1, 2, 3, 4, 8 and 9)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0123

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
PHILLIP PAUL BRACKEN	Defendant

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JUDGE:	MAXWELL P
WHERE HELD:	Melbourne
DATE OF HEARING:	4-28 February 2014
DATE OF RULINGS:	4, 5 & 12 February 2014
CASE MAY BE CITED AS:	R v Bracken (Ruling Nos 1, 2, 3, 4, 8 & 9)
MEDIUM NEUTRAL CITATION:	[2014] VSC 94

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CRIMINAL LAW – Trial – Murder – Self-defence – Family violence – Whether family violence ‘alleged’ – Whether defence inconsistent with record of interview – Whether prosecutor bound to call Crown witnesses named on indictment – Whether Crown witnesses may be cross-examined on family violence – Questioning allowed – Crimes Act (Vic) 1958 s 9AH.

EVIDENCE – Criminal trial – Tendency evidence – Hearsay evidence – Evidence to be adduced in cross-examination – Nature and purpose of evidence identified in defence written submission – Whether further notice required – Evidence Act 2008 (Vic) ss 67, 97, 100.

EVIDENCE – Criminal trial – Murder – Self-defence – Family violence – Advance ruling – Character evidence – Proposed cross-examination of Crown witnesses about relationship between accused and deceased – Whether adducing evidence of accused’s behaviour in response to family violence would put his character in issue – Whether proposed Crown evidence of other conduct admissible – Whether ruling premature – Ruling given – Character not in issue – Crimes Act 1958 (Vic) s 9AH, Evidence Act 2008 (Vic) ss 110, 192A.

EVIDENCE – Criminal trial – Hearsay – Exception to hearsay rule – Statements by accused to witness about facial injuries – Whether accused’s statements about cause of injuries within exception – Whether admissible for non-hearsay purpose – Evidence inadmissible – Subramaniam v Public Prosecutor [1956] 1 WLR 965 considered – Evidence Act 2008 (Vic) s 66A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rose SC with Ms T Saville	Mr C Hyland, Solicitor for Public Prosecutions
For the Defendant	Ms R Shann with Ms K Argiropoulos	Galbally Rolfe

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HIS HONOUR:

Crown witnesses and evidence of family violence

This is the first of a series of pre-trial questions to be resolved. It concerns the defence of self-defence, clearly identified by the defence in its response to the prosecution opening dated 6 December 2013, in these terms:

The accused’s actions were at all times justified on the basis of self-defence/defence of another (s 9AC).
It is alleged, pursuant to s.9AH, that, throughout their de facto relationship, the deceased subjected the accused to family violence including:
a.        Regular physical abuse resulting in injuries;
b.        Threats of violence including treats to kill;
c.        Intimidation and harassment; and
d.        Damage to property.
The accused relies on the evidence of prosecution witnesses and exhibits to support the allegation of family violence.

When the matter was before the Court for directions on 16 January, the Crown had given notice to the defence that a number of the witnesses named on the indictment would now not be called by the prosecution. The defence objected to the proposed dropping of those witnesses for the prosecution and, at short notice, provided a very helpful written submission to the Crown and the Court, contending that no circumstances had arisen which could justify the Crown taking that course.

The matter was discussed at the hearing on that day. Because both the prosecutor and I had only recently received the written submission, I made clear to the prosecutor that, if there were to be argument on the question, I would give him an opportunity to consider his position and we would fix a time for hearing of the argument subsequently. I expressed preliminary views, on the basis of the defence submission and the authorities referred to, but the matter was left on the basis that the prosecutor would consider his position and advise the Court, and the defence, by close of business the following day what the Crown's attitude was. The prosecutor duly advised the defence and the Court the following day that the witnesses would be called. Plainly enough, the defence have prepared the case on that basis.

The prosecutor has today renewed an argument which he advanced — albeit provisionally — on that occasion, to the effect that the Crown should not have to call witnesses who will be giving evidence in support of the defence of self-defence, that being the reason why the defence have insisted that they be called. The prosecutor wishes to be relieved of the obligation to call those witnesses.

The defence submit — rightly, in my view — that there would be a real unfairness if such a change of position were permitted on this, the first day of the trial. It is true, of course, that there is no jury empanelled yet. It would, in theory be possible for the trial to be adjourned for such time as would be necessary for the defence to proof and call those witnesses. But in my opinion that course is simply not open.

The Crown made an election, in my opinion, by the notice which it gave on 17 January, that it would not pursue this point and the witnesses would be called. The Crown is bound by that election. That is, it had a choice to make between two alternative and inconsistent courses of action and, on ordinary principles, the choice once made constituted an irrevocable election. Even if I were wrong about that as a matter of legal analysis, it would be quite unfair at this late stage for that change of position to be allowed, all the more so given that there has been no prior notice of the proposed change.

The Crown and the defence have prepared in anticipation that the trial would begin now and it would be, as I say, unfair for there to be a postponement and for the responsibility for calling these witnesses to shift to the defence.

There is a related point. Mr Rose submits that, even if he must call the witnesses, he would wish to object to cross-examination by the defence directed at family violence questions.

The relevant provisions of the Crimes Act 1958 (Vic) (‘the Crimes Act’) are as follows:

9AC Murder—‘self-defence’
A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.
9AD Defensive homicide
A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.
9AH Family violence
(1) Without limiting section 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary—
(a)     to defend himself or herself or another person; or
(b)     to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person—
even if—
(c)     he or she is responding to a harm that is not immediate; or
(d)    his or her response involves the use of force in excess of the force involved in the harm or threatened harm.
(2) Without limiting the evidence that may be adduced, in circumstances where family violence is alleged evidence of a kind referred to in subsection (3) may be relevant in determining whether—
(a)     a person has carried out conduct while believing it to be necessary for a purpose referred to in subsection (1)(a) or (b); or
(b)     a person had reasonable grounds for a belief held by him or her that conduct is necessary for a purpose referred to in subsection (1)(a) or (b); or
(c)     a person has carried out conduct under duress.
(3) Evidence of—
(a)     the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;
(b)     the cumulative effect, including psychological effect, on the person or a family member of that violence;
(c)     social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
(d)    the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(e)     the psychological effect of violence on people who are or have been in a relationship affected by family violence;
(f)     social or economic factors that impact on people who are or have been in a relationship affected by family violence.
(4) In this section—
child means a person who is under the age of 18 years;
family member, in relation to a person, includes—
(a)     a person who is or has been married to the person; or
(b)     a person who has or has had an intimate personal relationship with the person; or
(c)     a person who is or has been the father, mother, step-father or step-mother of the person; or
(d)    a child who normally or regularly resides with the person; or
(e)     a guardian of the person; or
(f)     another person who is or has been ordinarily a member of the household of the person;

family violence, in relation to a person, means violence against that person by a family member;
violence means—
(a)     physical abuse;
(b)     sexual abuse;
(c)     psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to—
(i) intimidation;
(ii) harassment;
(iii) damage to property;
(iv) threats of physical abuse, sexual abuse or psychological abuse;
(v) in relation to a child—
(A) causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or
(B) putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring.

(5) Without limiting the definition of violence in subsection (4)—
(a) a single act may amount to abuse for the purposes of that definition;
(b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.

The relevant provision for present purposes is s 9AH, which is enlivened ‘in circumstances where family violence is alleged’.

The prosecution submit that the record of interview of the accused does not allege family violence. More particularly, the accused said nothing in his record of interview to the effect that he felt compelled to shoot the deceased in order to defend himself or someone else. On the contrary, as it is properly pointed out, the account given in the record of interview is of accident. If this were truly an accident, family violence would be irrelevant. No occasion would arise for a defence of self-defence.

It is perfectly clear, however, that the defence now advanced is not accident, but self-defence. There is, of course, no legal obstacle in the way of an accused person advancing at his trial a defence inconsistent with what he may have said in the record of interview. So much is common ground.

I am satisfied at this stage of the proceeding that family violence is alleged in the relevant sense. There is ample material in the answers in the record of interview to constitute the raising of that as an issue.

The same threshold condition applies to sub-s 2, and is likewise satisfied. Accordingly, because family violence is alleged, evidence of a wide range of kinds (identified in sub-s (3)) is potentially relevant in determining whether, in this case, Mr Bracken killed Ms Curtis believing it necessary to do so to defend himself or another person. It is also relevant in determining whether he had reasonable grounds for such a belief.

It is no bar to the applicability of that section that the accused did not give, in terms, an explanation of the shooting expressed in terms of necessity. As I have explained, his explanation at the time was quite different, but there is material on which the defence is, at this stage, raised. I have in mind, of course, the broad definitions of ‘family violence’ and ‘violence’ in s 9AH(4) itself.

That being so, I rule that cross-examination directed at the matters made relevant by s 9AH will constitute the adducing of admissible evidence. There will be no basis for an objection on grounds of relevance. Objections on all other grounds will, of course, be available but the effect of what I have so far ruled is that, when the trial begins, the witnesses in question are to be called by the prosecution, and the defence will be at liberty to cross-examine, within the realms of relevance to the facts of this case, on matters made relevant by s 9AH.

Notice of intention to adduce tendency and hearsay evidence

The defence in this matter have given notice, in the form of a ‘defence overview’ dated 24 January 2014, of an intention to adduce from prosecution witnesses evidence which it is said is tendency evidence, within the meaning of s 97 of the Evidence Act2008 (Vic) (‘the Evidence Act’). Section 97 is in the following terms:

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.

(2) Subsection (1)(a) does not apply if—
(a)the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

The defence overview describes what is said to be the probative value of the evidence and identifies with some specificity the witnesses from whom it is intended to adduce this evidence. The relevant paragraphs are as follows:

The tendency sought to be proved is the tendency of Helen Curtis to act in a particular way, namely, to lose her temper and become angry/be in an uncontrollable rage.
This evidence has significant probative value because it makes more probable:
(i)that Ms Curtis was a perpetrator of family violence (in accordance with the description of Phillip Bracken to police);
(ii)that Ms Curtis behaved on 19 November 2012 in the manner described by Michael Bracken and Phillip Bracken.

In this regard, reliance is placed upon the decision of Re Knowles [1984] VR 751 … Although this decision pre-dates the introduction of the Evidence Act 2008, it is on point in terms of the significant probative value attached to evidence of prior behaviour of a deceased which makes it more probable that an accused’s superficially unlikely version of her conduct is true.

The prosecutor objects that the evidence is not admissible to prove that tendency of the deceased unless s 97(1)(a) is complied with, by the giving of reasonable notice in writing of the intention to adduce the evidence. I am satisfied that the written outline is quite adequate for that purpose. There are formal requirements for notice under the regulations but s 100 gives the Court a general power to dispense with the requirement for notice.

Given how clear the section is about the inadmissibility of the evidence, it seems to me that the notice requirement is applicable. But, for the reasons I have given, I am satisfied that adequate notice has been given.

The second objection from the Crown is whether the evidence referred to establishes any relevant tendency. That is a matter for submission. It seems to me at the moment that there is a proper basis, given what I know of the evidence, for the giving of the notice, that is to say, there is a proper basis — having regard to the family violence defence being relied on — for the defence contention that this is a relevant tendency, if established. Of course, the question is whether and to what extent the evidence will establish it.

In the same defence overview, counsel for the defence indicated that they relied on representations made by the deceased as being relevant to the family violence provisions of the Crimes Act. The written submission for the defence was that no notice was required in accordance with s 67 of the Evidence Act because this would be evidence adduced from prosecution witnesses.

In my opinion, any evidence to which the notice requirement would otherwise apply is subject to that requirement, notwithstanding that it is adduced from prosecution witnesses. Section 59 is quite clear that evidence of the relevant kind is not admissible to prove the truth of the representation, unless it is covered by one or more of a series of exceptions which the Act continues.

It is unnecessary to deal further, however, with the question of notice, as I am quite satisfied that the written submission gave adequate notice to the prosecution of the categories of out-of-court statement in respect of which evidence is sought to be adduced, and of the provisions of the Act relied on to bring the evidence within an exception to the hearsay rule.

The prosecution submitted that a fuller and more detailed notice was required. I am not persuaded in the circumstances that any further notice is required. This is, however, simply a ruling on procedure. The substance of any question of admissibility will be dealt with when it arises. The short argument this afternoon has further elucidated the way in which the defence invoke provisions such as ss 60, 65(8) and 66(A) of the Evidence Act.

It is to be expected that, at least initially, objection will be taken if the prosecution contends that the subject matter being cross-examined about does not, or does not appear to, attract any of the exceptions and I will rule as the need arises.

In the event that we find ourselves dealing repeatedly with those issues of admissibility, we may need to return to this issue. I would then propose to rule by reference to categories of evidence, and to decide whether a particular category does or does not fall within an exception. That is, however, better done, and counsel will be better placed to make submissions about it, when they and I have some sense of how evidence of this kind is emerging in the cross-examinations.

Character evidence – advance ruling

The defence have sought an advance ruling under s 192A of the Evidence Act, which provides as follows:

192A Advance rulings and findings
Where a question arises in any proceedings, being a question about—
(a) the admissibility or use of evidence proposed to be adduced; or
(b)the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or
(c)the giving of leave, permission or direction under section 192—

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

The defence have also made application for severance of Charge 2 on the Indictment. For reasons which follow, I propose to accede to those applications, that is to say, I will give an advance ruling on the issue of character evidence and will order that the count concerning possession of a firearm be severed.

I am, at the same time, asked to rule on the admissibility of evidence proposed to be given by a Crown witness, Mr Saha. For reasons which follow, I do not propose to give a ruling on the admissibility of that evidence at this time.

I deal first with the advance ruling. According to the outline of argument first filed, the ruling sought was in relation to the following question –

whether, if evidence is adduced by the defence concerning the accused’s good character, the prosecution would be permitted to adduce evidence of the accused’s prior convictions for armed robbery and attempted armed robbery dated 1987 in rebuttal, and whether evidence of the accused’s prior convictions would be excluded in accordance with s 135 and/or s 137 of the Evidence Act 2008.

Mr Bracken was convicted of armed robbery and attempted armed robbery in 1987 when he was aged 20. The death, the subject of the present proceeding, occurred in 19 November, 2012, when he was 45 years old.

According to the original outline, the defence seek to adduce evidence ‘which could be capable of being construed as evidence of the accused’s good character in two particular respects’, as follows:

a)The accused’s placid, mild, gentle, kind, quiet, reclusive, introverted and reserved characteristics and/or personality (eg. evidence of Clinton Symes, Susan Finlow, Grant Nicol, Russell Spicer); and
b)The observations and opinions of witnesses that the accused was submissive towards Helen Curtis, would do anything for Ms Curtis and to make her happy, would not question or challenge Ms Curtis, would not behave aggressively towards Ms Curtis and would not react angrily towards Ms Curtis (eg. evidence of Joelene Unwin, Lisa Williams, Susan Finlow, Steven Williams and Russell Spicer).

Section 110 of the Evidence Act deals with evidence about an accused's character in the following terms:

110 Evidence about character of an accused
(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
(2)If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.
(3)If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect.

The original submission for the defence was that the evidence would be adduced to prove that the accused is, ‘in a particular respect, a person of good character.’ It followed, so the original outline contended, that the prosecution should be confined to adducing rebutting evidence to prove that he was not a person of good character in the particular respects identified. It was argued that the evidence of the prior convictions was not rebuttal evidence in respect of those aspects of his character.

The submission for the Crown was that it was not appropriate for an advance ruling to be given. It was said, in effect, that assumption and speculation as to what evidence would be adduced were not a sufficient basis for an advance ruling in the circumstances.

In my opinion, this is an appropriate case for an advance ruling on this topic. It is clear from the joint Law Reform Commission Report on which this provision was based, that the procedure for giving rulings in advance was introduced with just such circumstances in mind. The Report states:

The power to give advance rulings carries significant benefits in relation to the efficiency of trials. It allows counsel to select witnesses and prepare for trial with greater certainty. Without such a power, tactical decisions, particularly in relation to character evidence, are based on speculation.

The Commissions consider that there are strong arguments of policy and practice in favour of removing the prohibition imposed by the High Court in TKWJ v The Queen. This view is supported unanimously in submissions and consultations. It is therefore recommended that the uniform Evidence Acts should be amended so as to provide the court with the express power, in civil and criminal proceedings, to give advance rulings in relation to the admissibility of evidence and other evidentiary questions. This power should extend to evidentiary questions arising out the uniform Evidence Acts and other laws affecting the admissibility of evidence.[i]

Plainly enough, it would be a matter of very great consequence for the conduct of the defence if the adducing of the evidence in question was taken to have opened up the accused's character in such a way as to entitle the Crown to lead evidence of these very significant prior convictions.

For reasons which follow, however, the ruling I propose to give is quite different from that which the defence sought. I dealt earlier with the defence of self-defence, based on family violence, which is raised in this case, and I have drawn attention to the breadth of the provisions governing the scope of the relevant evidence.

In answer to a question from the Court, defence counsel confirmed that the evidence of ‘character’ sought to be adduced was directed at establishing the defence of self-defence in that statutory context; that is to say, a context introduced by the words ‘where family violence is alleged’.

More particularly, counsel confirmed, the particular characteristics sought to be established are directly relevant to the nature of the relationship between the accused and the deceased, that being at the heart of the family violence issue in this case.

By a supplementary outline provided to the Court, the defence have confirmed that the evidence is not to be led

in order to say that Mr Bracken is a good person and, therefore, less likely to commit the offence of murder, than someone who is not a good person. It is led to lend weight to the defence contentions that within the relationship between Helen Curtis and Mr Bracken, he was a victim of family violence and he was not prone to reacting with anger. This has bearing on both the jury's determination of the nature of their relationship throughout and also how Mr Bracken may have behaved on 19 November 2014.

In my opinion, the adducing of evidence from prosecution witnesses to that effect, about the identified characteristics of the accused, would not constitute the putting in issue of his character in the accepted sense, provided that the evidence can be seen to be relevant to an understanding of the relationship between the accused and the deceased and/or of their respective temperaments and/or of the interactions between them, and hence as relevant to the presence or absence on the day in question of the belief identified in s 9AH(1).

Thus understood, the evidence is not being adduced to show that the accused is ‘not the kind of person’ who would have committed the offence of murder. On the contrary, it is being adduced to show that, against the background of that relationship and having regard to their respective characters, dispositions and tendencies, he is likely to have held that belief when he discharged the firearm. Although making no formal concession, the prosecutor accepted — rightly, in my view — that if the evidence was consistent with the proviso I have just set out, the Crown would not be in a position to lead evidence of the prior convictions. Naturally, the prosecutor reserved his right to object if the evidence were seen to stray beyond the scope of that proviso and, if it did, to make an application to lead rebutting evidence.

I deal now with severance. The submission for the defence was that Charge 2 should be severed because:

(1) it is not a ‘related offence’ within the meaning of the Criminal Procedure Act 2009 (Vic) (‘the Criminal Procedure Act’);
(2) the addition of that charge would add legal complexity to what is already a complicated trial; and
(3) additional counts on an indictment which includes murder should be admitted only in exceptional circumstances.

In the course of argument on the question of severance, attention inevitably turned to the question of cross-admissibility. In a case such as this, and given the character of Count 2, severance would, it seems to me, follow inevitably unless there were cross-admissibility. I raised with defence counsel — and it became clear that the prosecutor in his submissions on cross-admissibility intended to raise — the proposition that the relevant evidence of Mr Saha was probative, or capable of being probative, of the accused's disposition in the same way as the defence were asserting that other aspects of his character were relevant to the inquiry into the domestic relationship and the existence or otherwise of family violence.

Following the raising of that view of the potential relevance of the disputed evidence, defence counsel sought time to review their position and to consider whether the course of action earlier proposed would be followed, if its consequence was to render admissible evidence about the possession of the firearm.

Having reflected on the matter during the adjournment, I proposed to counsel on the resumption that the difficulty which this question presented was such that the defence should not at this stage be required to make any kind of final election about whether or not to seek to open up those aspects of character. I also put it to counsel that it was undesirable for me to rule on the admissibility of the evidence by reference to the family violence defence until the shape of that defence became clearer through the foreshadowed cross-examinations.

I also proposed that, in aid of the deferral of this important, and quite difficult, question to a more appropriate time, Charge 2 should be severed; and, finally, that there be no reference to the gun possession evidence in the opening.

Counsel having had further time to consider and respond to that proposal, the prosecutor has informed me that the Crown has no objection to Charge 2 being severed, nor any objection to omitting from the opening any reference to the gun possession evidence.

Mr Rose submits, however, that it is not appropriate for the question of admissibility to be deferred. He draws attention, properly, to the relevance of family violence issues to a dispute — yet to be resolved — about how much of the record of interview goes before the jury. He also submits that deferment of a ruling on the admissibility of Mr Saha's evidence would create the possibility that, if I were to rule it inadmissible and if the Crown wished to challenge that ruling on an interlocutory appeal, the trial would be disrupted.

The second point, in my opinion, is without substance. The provisions of the Criminal Procedure Act regarding interlocutory appeals are perfectly clear. Leave to appeal on a matter of evidence will only be granted if the omission of the evidence in question would eliminate or substantially weaken the Crown case (s 295(3)(a)). Whatever significance the evidence of Mr Saha may have, on no reasonable view is it central or critical or fundamental to the Crown case. As Mr Rose has repeatedly pointed out, the Crown case is a simple one. There is CCTV footage showing the accused shooting the victim and that is essentially said to be plain, irresistible, evidence of murder.

So I discount altogether the possibility that there would be any disruption of the trial. I certainly would not be likely to certify any such ruling as appropriate for interlocutory appeal. Of course, if a ruling is made once a jury has been empanelled, there is the additional hurdle under the Criminal Procedure Act that the Court to which application is made for leave to appeal must be satisfied that ‘the reasons for [giving leave] clearly outweigh any disruption to the trial’ (s 297(2)). Knowing what I know now, I doubt that there would be any basis for disrupting this trial to allow for an appeal on a ruling in relation to one witness' evidence, particularly evidence of a — relatively-speaking — peripheral kind like this.

As to the record of interview, the prosecutor has informed me that that issue does not need to be resolved for some days. It cannot be deferred indefinitely but it does not need to be resolved now. My present view is that the question of what goes in and what stays out will be decided, when necessary, on the basis of the defence as pleaded. Unless I can be persuaded that the relevant answers are irrelevant to the family violence question, then they will stay in.

Accordingly, my decision about the record of interview is not dependent on my view of Mr Saha's evidence. If, in the light of the argument on the record of interview, I am constrained to come to a different view about that, then of course this question can be revisited.

As should be apparent, my concern is to ensure that this trial begins with its focus on the central question, that is, the alleged murder of Ms Curtis and the defence of family violence, without being diverted at this early stage by attention being drawn to what, in the scheme of things is a minor matter. That is to say, the possession as a criminal offence is relatively minor; its significance in the trial as a matter of evidence is a matter to be judged.

Defence counsel, after consideration, have submitted that the course I propose is appropriate in all respects.

So it is common ground that there is no objection to severance. There is, in any event, a proper case for severance, given that the evidence regarding the possession of the weapon is quite discrete. It is confined to what Mr Saha would say. It is easily separable and easily capable of a separate trial, should that prove to be necessary. Severance will mean that there would be no arraignment of the accused on that other offence, and no mention of it in the opening. That will enable us to ensure that no unintended prejudice flows from this subject matter; that is to say, the alleged possession of the weapon. Accordingly, I will order that Charge 2 be severed and tried separately.

That leaves the question of the admissibility of Mr Saha's evidence. As I have indicated, I do not propose to rule on its admissibility at this stage. The conduct of the defence of self-defence (family violence) is a matter for defence counsel.

They have foreshadowed, as indicated earlier in my reasons, that they propose to adduce evidence going to Mr Bracken’s characteristics, which are said to be those of being ‘placid, mild, gentle, quiet, reclusive, introverted and reserved’.

The submission for the prosecutor is that, if evidence of those characteristics is to be relied on by the defence, in support of the defence as spelt out in s 9AH, it must likewise be relevant that there is evidence of the possession of a long arm weapon in the period proximate to the date of the shooting.

It is submitted that evidence of that kind is probative of the kind of person Mr Bracken is — or was, in the recent history of this relationship — and is capable of showing a disposition different from that which the defence have indicated they will seek to establish by cross-examination.

As I indicated to counsel in the course of argument this morning, that view of the relevance of the evidence seems to me at the moment to be well open, given the breadth of s 9AH. The submission for the defence this morning was that, even if it had some relevance, I would be bound to exclude it under s 137 of the Evidence Act, on the basis that its probative value was minimal, and the danger of unfair prejudice very great.

The counter-argument, which I discussed with defence counsel in the course of argument, is this. If disposition is relevant to the assessment of a relationship said to be affected by family violence, and if possession of a long arm weapon accompanied by a request for secrecy is relevant to disposition, then it has as much probative value as any other evidence about disposition. On the other hand, there is no danger of unfair prejudice because, although the evidence is prejudicial, it is properly so. That is, like any other piece of incriminating evidence, it goes to prove the offence by tending to disprove the existence of the belief referred to.

For now, a deferral of this question will, it seems to me, serve the interests of justice and in no way prejudice the prosecution’s presentation of its case.

Deferring this issue leaves it squarely for defence counsel to decide, in the light of the argument had and the remarks contained in this ruling, how the relationship is to be explored and how the respective characteristics of both Mr Bracken and Ms Curtis are to be elucidated for the assistance of the jury. That will unfold as those witnesses are cross-examined. The defence are on notice that there is at least a reasonable argument of the kind I have mentioned in relation to the firearm possession evidence. I express no concluded view about it.

That issue having been raised for consideration by defence counsel, Ms Shann has confirmed that the cross-examinations will be approached bearing in mind the possible consequences with respect to evidence of disposition and character. That seems to me to be preferable to the course contemplated earlier today, of the defence being forced to choose between that line of cross-examination and the admissibility of Mr Saha's evidence.

Finally, and importantly, both the prosecution and defence and the Court will be in a much better position to make a judgment about probative value, relevance, and the risk of unfair prejudice of the evidence of Mr Saha once the nature of the relationship picture sought to be portrayed by the defence has begun to emerge. That is likely to affect decisions of the prosecution as to how that evidence is to be dealt with and in particular as to how significant, or otherwise, the evidence of Mr Saha will be once the other evidence has started to emerge. Ultimately, it is likely to mean that the Court will make a better informed — and therefore, presumably, a better — judgment on what is a very significant question of admissibility, concerning the evidence about the possession of a firearm.

Character evidence – further advance ruling

The defence have today sought a further advance ruling, under s 192A of the Evidence Act, on a similar subject-matter. In my opinion, this is a proper case for an advance ruling. Although to some extent matters debated previously have been raised again, I do not regard the application as seeking to revisit my earlier ruling. Rather I see it as properly raising for consideration a narrower approach to the family violence issue than I was considering when I gave that ruling.

Time does not permit the provision of detailed reasons now. It is sufficient to say that, if the defence cross-examination of Crown witnesses is confined to an ascertainment of the history of the relationship between Mr Bracken and Ms Curtis, and to the way each treated the other and responded to the other, then I would regard the evidence of Mr Saha (as I now understand it) to be of little probative value and likely to carry with it a substantial danger of unfair prejudice.

The category of evidence is defined by a paragraph from the original submission.[1] ‘It is sought to adduce evidence of [t]he observations and opinions of witnesses that the accused was submissive towards Helen Curtis, would do anything for Ms Curtis, and to make her happy would not question or challenge Ms Curtis, would not behave aggressively towards Ms Curtis and would not react angrily towards [Ms Curtis].’
[1]See 33(b) above.

I want to make it unambiguously clear that my ruling is confined to evidence of what the witnesses saw, and their observations of the nature or tenor of the conduct. We have questions already about, eg, ‘Was she speaking angrily or quietly?’ Evidence to that effect will be within the scope of my ruling.

The ruling does not, however, cover any prediction from any witness about how someone would, or would not, have behaved in a particular circumstance. It is to be confined to what the witnesses saw and — subject to an appropriate hearsay exception being applicable — what they heard.

Evidence of that kind seems to me to be properly within the scope of s 9AH(3)(a), and to be admissible for that purpose, without having the corollary that the evidence of Mr Saha would also become admissible.

If the language of this ruling, delivered ex tempore, requires revision or clarification, then that can be done. For present purposes, I am acceding — as it were — to the alternative submission made, limited to that category of evidence. I reject the application so far as it relates to the other category of evidence, that is, evidence of the accused’s ‘placid, mild, gentle, kind, quiet, reclusive, introverted and reserved characteristics and/or personality’. Were evidence of that kind to be adduced, different considerations — much broader considerations — would arise, as I suggested in my previous ruling. My present ruling is confined to the narrower category.

Hearsay evidence concerning injuries

Objection has been taken to cross-examination of a witness on the ground that the question just asked invites an inadmissible hearsay answer, alternatively an answer which is irrelevant.

I will deal with the two parts of the objection, this being an issue which may recur. Section 66A of the Evidence Act makes it quite clear that a person giving evidence may, without breaching the hearsay rule, give evidence of something said by another person — in this case, Mr Phillip Bracken — if what was said was ‘a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind’.

The witness has given evidence that he observed Mr Bracken in late 2010 with bruising to his face. He has given evidence that a conversation with another workmate prompted him to go and enquire of Mr Bracken about the injuries.

In my opinion, there is a clear distinction to be drawn between two types of evidence, as follows:

(a)evidence about what the person (Mr Bracken) said about how his health was, how he was feeling, what sensations he was experiencing — for example, whether he was feeling well or ill, whether his bruising was painful or not, and whether for example he intended to do anything about it or whether he felt upset about having been injured. That would seem to fall within state of mind in s 66A; and
(b)evidence about what Mr Bracken said about how the ill health — in this case, bruising to the face — came about.

The submission for the defence accepts that a statement of the latter kind does not fall within s 66A. That is to say, the representation about health does not extend to a representation about the cause of injury, for example.

It is maintained, however, that a statement of the latter kind — that is, how the injury was sustained — is admissible for a non-hearsay purpose. That statement goes, it is said, to the belief of the person who made the statement about how they came to be in that injured state. Reliance is placed on the decision of the Privy Council in Subramaniam v Public Prosecutor,[2] relating to the state of mind of a defendant whose defence was duress. It was there held to be relevant for non-hearsay purposes for the defendant to give evidence about what had been said to him, the making of those statements being relevant to his belief as to what had happened or was likely to happen to him, that in turn being relevant to his defence of having acted under duress.
[2][1956] 1 WLR 965.

Time does not permit any review of the authorities by me, but I am satisfied at the moment that there is no analogy between that circumstance and this. We are not here concerned with a statement reportedly made by Mr Bracken about what his state of belief was at the time of the shooting. That is the fact in issue: did he have a belief that killing Ms Curtis was necessary to defend himself or his father? His state of mind about how he came to be bruised in late 2010 has no bearing on that question.

The issue, as I have accepted and defined in my previous rulings, is the nature of the relationship between Mr Bracken and Ms Curtis, that being made relevant by s 9AH in a case where family violence is alleged. The question is whether there was family violence — that is, one or more acts of physical abuse or psychological abuse — by Ms Curtis towards Mr Bracken.

Evidence that would attribute responsibility to Ms Curtis for any injury suffered by Mr Bracken needs to be given in proper form, in my view. A statement of the kind I have referred to — that is, ‘Helen did it or Helen might have done it’ — is not on this issue able to be led through a third person, in my opinion. That is to say, it is not within the relevant hearsay exception, and it is not admissible for the stated non-hearsay purpose because it is not relevant to the purpose as I have defined it, that is, of ascertaining Phillip Bracken’s state of mind in late 2012, not late 2010.

I do not, however, accept that the answer which it seems likely Mr Nichol will give — that is, that Mr Bracken did not want to talk about it — is irrelevant. There has been no objection to the leading of the evidence that he had a bruised face. Nor was there objection yesterday to evidence being led about a big gash on his head. Provided the answers do not trespass into the territory of how it happened, or why it happened, or who was responsible for it, then the question and the answer are no less relevant than evidence already before the jury.

I would permit the question and permit the answer as we contemplate it will be. The ruling I have given will apply to questioning of a similar kind with other witnesses, and we will deal with the issue as it arises. As counsel will be well aware, I have taken the view that justice in this matter will be best served if the defendant has every reasonable opportunity to establish facts going to family violence, but that the focus is properly to be kept on what actually occurred in the relationship and on the evidence, from those who saw the individuals in the course of that relationship, as to the nature of it.

Further to the ruling I have just given, my attention has been drawn to the statement of Mr Trevor Dempsey who will be giving evidence shortly. There are two passages in which, if the evidence is given in accordance with the statement, there will be reported remarks by Mr Phillip Bracken about how he got injured. In the first case, the witness in his statement says: ‘The first injury I noticed was a fat lip, and when I asked Phil what had happened, he told me that he got into a fight’. The second is: ‘I asked Phil what was happening, and he told me that he was too embarrassed to talk to anyone about getting assaulted by his girlfriend’.

Ms Shann indicated that, as to the second, she would propose to ask only about Mr Bracken’s expression of embarrassment, and that there be no reference to assault by Ms Curtis. Equally, Ms Shann submits that the evidence about the other explanation — ‘I got into a fight’ — should likewise not be led. Mr Rose resists the second proposition, contending that that is relevant to the family violence defence.

I would uphold the defence submission that my ruling applies necessarily to any evidence of this character, that is to say, an out-of-court statement as to how an injury was sustained. The same principle must, it seems to me, apply whether the answer would assist the prosecution or assist the defence. Accordingly, the course proposed by the defence is the correct course in the light of my ruling. There should not be evidence given by Mr Dempsey, or other witnesses, of what they were told by Mr Bracken about the cause of his injuries.

The prosecutor submits that, in the light of my ruling that hearsay evidence which would tend to prove how the injuries were sustained should not be admitted, the evidence about observed injury is irrelevant and should not be admitted. In my opinion, that is not so.

I ruled early on that family violence was alleged in the relevant sense, as the trial was to be conducted on the assumption that the record of interview would be before the jury. In that interview, Mr Bracken makes allegations of having been the subject of physical abuse. It is a matter for the jury whether the evidence given by these witnesses — of him having had bruises quite a long time before the killing — adds weight to his assertions in the interview of having been bashed. But it seems to me to be open to them to regard the evidence as to some degree relevant to those assertions. It will be a matter for submission by the prosecution and the defence as to what, if any, connection there might be between the observed bruises and his claims in the record of interview. So it seems to me it is relevant so far as it goes, provided that it is within the boundaries that I have defined by this ruling.

‑ ‑ ‑

[i] ALRC, NSWLRC and VLRC, Uniform Evidence Law, ALRC Report 102, NSWLRC Report 112 and VLRC Final Report (2005) at [16.108-16.109] (citation omitted).

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R v Bracken (Ruling Nos 1, 2, 3, 4, 8 and 9) [2014] VSC 94

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[2014] VSC 94

4 February 2014