R v Brooks

[2017] NSWSC 188

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Brooks [2017] NSWSC 188
Hearing dates:	27 February 2017, 1-3 March 2017
Date of orders:	07 March 2017
Decision date:	07 March 2017
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Evidentiary rulings made (see paragraph [83]) Provisional view indicated (see paragraph [84]) Advance ruling made (see paragraph [85])
Catchwords:	CRIMINAL LAW – evidence – post-offence conduct – consciousness of guilt – disposal of weapon – washing of shoes – lies – whether evidence “intractably neutral” – where conduct may be explained by accused attempt to distance himself from incident – where accused produced knife during physical altercation – where accused makes formal admissions – whether admissions preclude prosecution from adducing evidence of those facts – conflict in authorities – telephone intercepts – whether discussion of offer to plead guilty demonstrates a consciousness of guilt – assessment of probative value and prejudicial effect CRIMINAL LAW – evidence – advance ruling – where accused seeks to introduce evidence of earlier assault – where evidence relevant to issue of self-defence – whether Crown entitled to lead evidence that accused threatened to stab the perpetrator – where threat unrelated to incident giving rise to charges
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Baden-Clay v The Queen [2016] HCA 35; 334 ALR 234 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Frazer [2002] NSWCCA 59; 128 A Crim R 89 Gall v R [2015] NSWCCA 69 Mulvihill v R [2016] NSWCCA 529 R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Cook [2004] NSWCCA 52 R v JGW [1999] NSWCCA 116 R v Longford (1970) 17 FLR 37 R v Lucas [1981] 1 QB 720 R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426 R v Smith [1981] 1 NSWLR 193 R v Taranto, R v Freeman [1999] NSWCCA 396 R v White [1998] 2 SCR 72 Sievers [2004] NSW CCA 463; (2004) 151 A Crim R 426 Steer v R [2008] NSWCCA 295; (2008) 191 A Crim R 435 Stubley v Western Australia (2011) 242 CLR 374; [2011] HCA 7 Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 The Queen v Bridgman (1980) 24 SASR 278 Yager v The Queen (1977) 139 CLR 28; [1977] HCA 10
Texts Cited:	Peter Hidden, QC, “Plead Guilty and Get it Over With?” (1991) NSW Bar Association, Bar News Summer
Category:	Procedural and other rulings
Parties:	Regina Bradley Brooks
Representation:	Counsel: Huw Baker (Crown) Andrew Boe (B Brooks)   Solicitors: Director of Public Prosecutions Younes + Espiner Lawyers (B Brooks)
File Number(s):	2015/00101058

Judgment

1. Bradley Brooks is charged with the murder of Gregory Gibbins (count 1) and with wounding Adam Swindell with intent to cause grievous bodily harm (count 2). The incident giving rise to those allegations occurred shortly after midnight on 6 April 2015 outside or near the Beachcomber Hotel in Main Road Toukley. The prosecution case is that Bradley Brooks stabbed Gregory Gibbins in the chest and that, a very short time later, he and his brother (Joel Brooks) each inflicted a stab wound on Adam Swindell. Joel Brooks was a co-accused in the present proceedings but the Director of Public Prosecutions elected to conduct the trial separately and Joel Brooks and his trial have been remitted to the District Court.

2. Before a jury was empanelled counsel for the accused raised a number of objections to evidence that the prosecution seeks to adduce. He also sought an advance ruling as to whether the prosecution would be entitled to lead particular evidence if he introduced evidence of an incident that occurred on 27 February 2015 when he was the victim of an assault at the Beachcomber Hotel.

THE OBJECTIONS

3. The accused tendered a folder of material on the voir dire that contained the evidence to which objection was taken. [1] This included an index enumerating 18 witnesses or items of evidence to which his objections related. Following discussion between the parties, the Crown agreed not to lead nine of those items of evidence [2] . The controversy surrounding a tenth item of evidence [3] evaporated when the accused withdrew his objection. Adopting the numbers in the index to the material provided by the accused, the outstanding objections relate to the following pieces of evidence:

   1. Ex VD 1.

   2. Items 1, 2, 3, 4, 5, 6, 7, 14 and 15.

   3. Item 13.

8. Various parts of the evidence of Madison Valentine [4] .

9. Two parts of the evidence of Christopher Hughes.

10. Certain items of evidence to be tendered through a police officer, Detective Senior Constable Bagnall. I understand that these are, essentially, Items 11-18. Subject to ruling as to items 11, 12, 16, 17 and 18, I understand the parties will agree on the form and substance of the evidence to be led from the police officer.

11. An electronically recorded interview with the accused (“the ERISP”).

12. Six CCTV images showing the accused and his friends and family leaving the Beachcomber Hotel shortly before midnight on 5 April 2015.

16. A telephone intercept of 11 February 2016 between Bradley and his father, Corry Brooks.

17. Eight forensic procedure photographs of Bradley Brooks.

18. Forty seven photographs of items seized during a search of premises associated with the accused.

4. The spelling of Ms Valentine’s name is inconsistent in the material.

4. In relation to these objections, there are two overarching legal issues. One issue is whether the Crown can rely on evidence of post offence conduct to establish a consciousness of guilt in the accused where a possible explanation for that conduct is that the accused was attempting to distance himself from the incident, rather than demonstrating a consciousness of guilt to the specific crimes charged in the indictment. The other overarching legal issue concerns the extent to which the making of formal admissions creates a bar to the prosecution from adducing evidence going to prove matters no longer subject of dispute. Each of those issues, which intersect in the circumstances of the present case, engages the question and definition of relevance in sections 55 and 56 of the Evidence Act as well as an assessment of the probative value of the evidence.

5. Neither issue is free of controversy. Each has led to somewhat inconsistent statements of principle from the higher courts although the application of those principles is ultimately a matter to be determined based on the individual circumstances of any particular trial. In other words, the true or live issues in the trial must be identified and an assessment made as to extent to which the formal admissions alleviate the necessity to prove particular matters, including proof by leading evidence of the post-offence conduct. A determination must be made as to whether the admissions essentially create a bar to the prosecution adducing the evidence, and whether allowing the Crown to lead particular items of evidence might create unfairness or result in an undue waste of time. It is also necessary to decide whether post offence conduct such as the telling of lies, disposing of weapons and washing clothing worn during the incident is capable of rationally affecting an assessment of the live issues in the trial; that is, is it relevant? If it is relevant, as assessment must be made of the extent to which such conduct could rationally affect the assessment of those issues by demonstrating a consciousness of guilt in circumstances where there may be another explanation for such conduct, namely a consciousness of guilt arising from an offence less serious than homicide or merely an attempt simply to distance oneself from the incident giving rise to the charges.

6. Returning to the evidence to which objection is taken, the learned Crown Prosecutor (without demur from counsel for the accused), placed the objections into five categories. First, there are three objections to the evidence to be led through Madison Valentine. These relate to (i) the purchase of the knife used in the stabbing, (ii) alleged admissions that Bradley Brooks told her (or indicated by pointing) that he stabbed the victim or victims in the arms or chest and (iii) two telephone intercepts recorded on 3 and 22 of October 2015 in which she and the accused discussed the possibility of Mr Brooks pleading guilty and (iv) evidence that between the time of the incident and the time of his arrest, she and the accused discussed the fact that Mr Gibbins (by inference) had died. Second, there is an objection to the evidence of Christopher Hughes to the effect that when he saw the accused he was not wearing a shirt and also his opinion as to the state of mind of the accused and his brother. Third, there is an objection to the whole of the ERISP in which Mr Brooks gave a false account. Fourth, there is an objection to a telephone intercept between the accused and his father on 11 February 2016 in which there was a discussion of the state of the police evidence and specifically reference to the absence of DNA evidence inculpating Mr Brooks. Fifth, there is objection to CCTV stills and a number of photographs taken by police during a forensic procedure and after a search of the accused’s premises.

THE ADVANCE RULING[5]

5. See s 192A Evidence Act NSW 1995.

7. The advance ruling concerns the details of an incident that occurred on 27 February 2015. It appears to be common ground that Mr Brooks was assaulted on that date and suffered injury. The accused seeks to elicit evidence from three witnesses establishing the facts of the incident and its impact on him. He submits that it is relevant to his reaction to events on 5-6 April 2015 and to the issue of self-defence. I understand that the Crown does not object to that evidence, but seeks to adduce evidence from a security guard who spoke to the accused on the night. The security guard asserts that the accused said, with reference to his assailant, “I’m going to stab that cunt” and “I’m going to stab the cunt, I know where he lives. I’m going to stab him.”

8. The accused objects to this and seeks an advance ruling to enable him to make an informed decision as to whether to adduce the evidence of the earlier assault.

THE PROSECUTION CASE

9. The prosecution tendered an Outline of the Crown Case on the voir dire. [6] It is unnecessary to set out the detail contained in that document. In short, the prosecution alleges that the accused and his brother attended a music festival at the Beachcomber Hotel in Toukley on the afternoon and evening of 5 April 2015. They were in a group of friends and relatives. Gregory Gibbins and Adam Swindell also attended the festival. The Hotel closed at midnight and a large crowd gathered outside the hotel and a nearby pizza shop. A dispute arose between the Brooks’ group and a young woman who sought assistance from Mr Gibbins. Mr Swindell pushed Joel Brooks who moved backwards. Mr Gibbins was standing next to Mr Swindell. The accused pulled a knife from his pants and stabbed Mr Gibbins in the chest. Mr Swindell ran. Joel Brooks and the accused pursued Mr Swindell and stabbed him in the arm and chest.

   6. Ex VD B.

10. The accused and his brother fled the scene. Mr Gibbins stumbled and fell onto the roadway. He was unresponsive to treatment at the scene by bystanders and paramedics. He was pronounced dead a Gosford Hospital at 1:05am. Post mortem examination established that he died from a single stab wound to the chest that penetrated his chest plate and entered his heart. The degree of force required to inflict this injury was estimated to be “moderate to high”. Mr Swindell was treated for his injuries. He had two stab wounds, a 3 centimetre wound to his armpit and a 5 centimetre wound to his upper arm.

11. Suspicion quickly fell upon Bradley and Joel Brooks. A driver’s licence was found at the scene that belonged to Joel Brooks and two witnesses identified Joel Books as one of the stabbers when they looked at the licence. A black resin object was found at the scene and the prosecution alleges that this object came off the handle of the knife used by the accused when he dropped it. Police executed a search warrant and located the shoes worn by the brothers in the washing machine. A presumptive test for blood on the shoes was positive although DNA testing was unsuccessful. Police interviewed both brothers on 6 April 2015. They both claimed that they left the venue at around 11pm but security checks demonstrated that they left an hour later. The accused was charged with murder and wounding with intent on 7 April 2015. His brother was charged three weeks later.

12. Madison Valentine told police that she purchased a knife for the accused around three weeks before the incident. She showed police a similar knife, but of a different colour, at the shop. The knife matched the description given by witnesses and had a resin insert “strikingly similar” to that found at the scene.

13. The prosecution’s case is that the accused is a principal in the first degree in relation to both offences. That is, the Crown asserts that he actually inflicted the stab wound that caused the death of Mr Gibbins and that he stabbed Mr Swindell with intent to cause really serious injury. In relation to the second charge, the Crown also relies on joint criminal enterprise. That is, the Crown asserts that the accused and his brother agreed to inflict grievous bodily harm on Mr Swindell and that the each is responsible for the acts carried out by the other in furtherance of that common purpose.

14. To prove murder the prosecution must establish beyond reasonable doubt that the act of the accused caused the death of Mr Gibbins and that he carried out the act with an intention to kill or to inflict grievous bodily harm. [7] The Crown must also establish beyond reasonable doubt that the accused acted unlawfully in the sense that he did not act in self-defence. [8]

    7. Section 18 Crimes Act 1900 (NSW).

    8. Section 418 Crimes Act 1900 (NSW).

15. If the Crown fails to prove the specific intention for murder, it may be open to the jury to return a verdict of guilty to manslaughter on the ground of manslaughter by unlawful and dangerous act. Manslaughter may also arise if the Crown has not eliminated (beyond reasonable doubt) that the accused believed it was necessary to do what he did in order to defend himself or another person but the Crown has proved (beyond reasonable doubt) that the response was not a reasonable response in the circumstances as the accused perceived them to be. [9]

    9. Section 421 Crimes Act 1900 (NSW).

16. To prove the second count, the Crown must establish that either the accused or his brother caused the wounds to Mr Swindell and that the accused either committed the act himself while intending to inflict grievous bodily harm or the common purpose included acting with an intention to inflict grievous bodily harm. Again, the Crown must eliminate self-defence beyond reasonable doubt.

THE PROPOSED ADMISSIONS, THEIR LEGAL EFFECT AND IMPACT ON THE LIVE ISSUES IN THE TRIAL

17. The accused intends to make formal admissions in relation to a number of factual matters. [10] Those admissions will take a different form depending on the evidentiary rulings that are made, particularly the rulings dictating whether the Crown is permitted to lead evidence of post offence conduct said to establish a consciousness of guilt.

    10. Section 184 Evidence Act 1995 (NSW).

18. Two draft forms of the admissions were tendered at the commencement of the voir dire. [11] On the second day of the voir dire, two further drafts were tendered. [12] These second draft admissions addressed issues raised by the Crown Prosecutor in his submission on the first day. These documents represent the substance of the admissions that will be made in the trial although there may be some tweaking of the document before it is tendered or read.

    11. Exhibits VD 2 and VD 3.

    12. Exhibits VD 4 and VD 5.

19. If the Crown is not permitted to lead the post offence conduct as evidence of consciousness of guilt, the admissions would be in the following terms:

ADMISSIONS

I, Bradley Brooks make the following admissions at my trial pursuant to s 184 Evidence Act. I have received advice about the making of these admissions from my barrister, Andrew Boe and my solicitor, Carol Younes, and I understand the consequences of making these admissions.

1.   I am the biological son of Corry and Mandy Brooks. I was born on 16 November, 1995.

2.   As at 5 April 2015:

2.1.   I was 19 years old, and approximately 6’2” tall; and

2.2.   I resided at 6 Hibbard Street, Canton Beach with my fiancé, Madison Valentine.

3.   On the evening of 5 April 2015:

3.1.   I attended the ‘Sunbay’ music festival at the Beachcomber Hotel on Main Road Toukley (‘the Beachcomber’) with Joel Brooks, Corry Brooks, Billy Weldon and Jake Deville (collectively referred to as ‘my family group’).

3.2.   I was wearing a red singlet, grey coloured chino trousers, white and blue Nike brand shoes and a black ‘bum bag’. These clothes are as depicted in a photograph taken that night at the Beachcomber, a copy of which is Attachment 1.

4.   Joel Brooks is my adopted brother.

5.   Billy Weldon is my father Corry Brooks’ half-brother.

6.   Jack Deville is my cousin (on my mother’s side).

7.   My family group travelled together to the Beachcomber in my father’s white dual cab utility which was driven there by my father and parked in the gravel carpark adjacent to Aldas Pizza. This store is diagonally across, and about 90m down from the Beachcomber.

8.   At around midnight, at about the time the festival ended, I left the Beachcomber, crossed the road and walked to Aldas Pizza and ordered some pizzas.

9.   As I waited for the pizzas, I stood immediately outside the store. I lit a cigarette and had my left arm outstretched so I could lean against the front wall of Aldas Pizza (on the side closest to Dunleigh Street). I was facing away from the direction of the Beachcomber. Members of my family group were standing a few metres away (behind me) on the other side of the entrance to the pizza shop.

10.   As I was waiting for the pizza order to be filled, I heard and saw a young woman, who I now believe to be Amber Pellizzon, gesticulating and yelling at my family group whilst they were outside the store. At that stage she was on her own. She then went to the car park area and returned, leading two men from the car park. They went past me and went directly to my family group. She started yelling at my family group again. I then saw one of these men knock my brother Joel to the ground.

11.   I immediately stepped towards this man and pulled out a knife that was clipped to the inside of my trousers and stood facing him with the knife blade protruding out of my fist next to my right thumb. I repeatedly yelled that I had a ‘fucking knife’. I then engaged in a physical altercation with these two men in an area on the roadway at or about the front of the store. I now believe that these two men were Adam Swindell and Gregory Gibbins.

12.   I had no prior interaction with either Adam Swindell, Gregory Gibbins or their companion Shaun Morabito prior to this physical alteration.

13.   I am right handed and held and deliberately used the knife in my right hand throughout the altercation. Throughout the entire altercation the knife was held tightly in my right fist with the blade protruding next to my right thumb.

14.   During the physical altercation in which I deliberately used the knife:

14.1.   Gregory Gibbins sustained a knife wound to his chest and subsequently died as a result of this wound;

14.2.   Adam Swindell sustained serious knife wounds to his right bicep and the left side of his chest, which wounds amounted to grievous bodily harm.

15.   Although I do not know whether in fact I did, I admit the reasonable possibility that I caused each of these wounds.

16.   The knife that I used in the altercation:

16.1.   was a foldable knife;

16.2.   was given to me on or about 19 March 2015 by my fiancé Madison Valentine, as a gift;

16.3.   I was present when she purchased the knife from CTC Tobacconists at Toukley that day;

16.4.   was clipped to the inside of my trousers’ waistband with the blade in the folded position from when I arrived at the Beachcomber; and

16.5.   is the same type and appearance as the knife depicted in Attachment 2 to these admissions.

17.   At no stage in the circumstances in which Madison Valentine gave me the knife was there any discussion of the events that occurred at the Beachcomber Hotel on 27 February 2015, when I had been assaulted in her presence.

18.   The item depicted in photograph 42 of 163 in the Statement of Terry Flippence, and located at Point 1 in photograph 3 of 163 (of the same statement) is a piece of the handle of the knife I used, that must have fallen off just before or during the course of the physical altercation in which I was involved.

19.   When I was given my knife by Madison I suggested to her that we also buy a knife for Joel for his 19th birthday. Madison purchased a second knife from CTC Tobacconists at Toukley which we gave to Joel later that day. It is the same type and appearance as the one depicted in Attachment 3.

20.   Immediately following the physical altercation, I ran down Dunleigh Street (away from Main Street), at some point Joel caught up with me and together we ran to my house at 6 Hibbard Street, arriving there about fifteen minutes or so after leaving Aldas Pizza.

21.   I was arrested on 6 April 2015 and charged with the present offences the following day.

20. If the Crown is permitted to lead the post offence conduct as evidence of a consciousness of guilt, the admissions will take the following form:

ADMISSIONS

I, Bradley Brooks make the following admissions at my trial pursuant to s 184 Evidence Act. I have received advice about the making of these admissions from my barrister, Andrew Boe and my solicitor, Carol Younes, and I understand the consequences of making these admissions.

1.   I am the biological son of Corry and Mandy Brooks. I was born on 16 November, 1995.

2.   As at 5 April 2015:

2.1.   I was 19 years old, and approximately 6’2” tall; and

2.2.   I resided at 6 Hibbard Street, Canton Beach with my fiancé, Madison Valentine.

3.   On the evening of 5 April 2015:

3.1.   I attended the ‘Sunbay’ music festival at the Beachcomber Hotel on Main Road Toukley (‘the Beachcomber’) with Joel Brooks, Corry Brooks, Billy Weldon and Jake Deville (collectively referred to as ‘my family group’).

3.2.   I was wearing a red singlet, grey coloured chino trousers, white and blue Nike brand shoes and a black ‘bum bag’. These clothes are as depicted in a photograph taken that night at the Beachcomber, a copy of which is Attachment 1.

4.   Joel Brooks is my adopted brother.

5.   Billy Weldon is my father Corry Brooks’ half-brother.

6.   Jack Deville is my cousin (on my mother’s side).

7.   My family group travelled together to the Beachcomber in my father’s white dual cab utility which was driven there by my father and parked in the gravel carpark adjacent to Aldas Pizza. This store is diagonally across, and about 90m down from the Beachcomber

.

8.   At around midnight, at about the time the festival ended, I left the Beachcomber, crossed the road and walked to Aldas Pizza and ordered some pizzas for the group.

9.   As I waited for the pizzas, I stood immediately outside the store. I lit a cigarette and had my left arm outstretched so I could lean against the front wall of Aldas Pizza (on the side closest to Dunleigh Street). I was facing away from the direction of the Beachcomber. Members of my family group were standing a few metres away (behind me) on the other side of the entrance to the pizza shop.

10.   As I was waiting for the pizza order to be filled, I heard and saw a young woman, who I now believe to be Amber Pellizzon, gesticulating and yelling at my family group whilst they were outside the store. At that stage she was on her own. She then went to the car park area and returned, leading two men from the car park. They went past me and went directly to my family group. She started yelling at my family again and then I then saw one of these men knock my brother Joel to the ground.

11.   I immediately stepped towards this man and pulled out a knife that was clipped to the inside of my trousers and stood facing him with the knife blade protruding out of my fist next to my right thumb. I repeatedly yelled that I had a ‘fucking knife’. I then engaged in a physical altercation with these two men in an area on the roadway at or about the front of the store. I now believe that these two men were Adam Swindell and Gregory Gibbins.

12.   I had no prior interaction with either Adam Swindell, Gregory Gibbins or their companion Shaun Morabito prior to this physical alteration.

13.   I am right handed and held and deliberately used the knife in my right hand throughout the altercation. Throughout the entire altercation the knife was held tightly in my right fist with the blade protruding next to my right thumb.

14.   During the physical altercation in which I deliberately used the knife:

14.1.   Gregory Gibbins sustained a knife wound to his chest and subsequently died as a result of this wound;

14.2.   Adam Swindell sustained serious knife wounds to his right bicep and the left side of his chest, which wounds amounted to grievous bodily harm.

15.   Although I do not know whether in fact I did, I admit the reasonable possibility that I caused each of these wounds.

16.   The knife that I used in the altercation:

16.1.   was a foldable knife;

16.2.   was given to me on or about 19 March 2015 by my fiancé Madison Valentine, as a gift;

16.3.   I was present when she purchased the knife from CTC Tobacconists at Toukley that day;

16.4.   was clipped to the inside of my trousers’ waistband with the blade in the folded position from when I arrived at the Beachcomber; and

16.5.   is the same type and appearance as the knife depicted in Attachment 2 to these admissions.

17.   At no stage in the circumstances in which Madison Valentine gave me the knife was there any discussion of the events that occurred at the Beachcomber Hotel on 27 February 2015, when I had been assaulted in her presence.

18.   Upon arriving at my house at 6 Hibbard Street, I ran inside and changed out of my clothes. I then retrieved the keys to my mother’s vehicle (gold coloured Lexus IS 200, registration number BZB-85V) and drove it from there, with Joel Brooks in the front passenger seat, to our parents’ house at 157 Manoa Road, Budgewoi. I took the clothes that I had been wearing with me in the car to my parents’ house.

19.   I stopped on the way to my parents’ house and disposed of the knife I used, as well as a knife that Joel was carrying with him. I threw both knives into the ocean at Budgewoi Beach. I believe that the knife I took from Joel to be a knife that Madison and I had given to him in or about March 2015 for his 19th birthday. I was present when Madison purchased this knife from CTC Tobacconists at Toukley. It is the same type and appearance as the one depicted in Attachment 3.

20.   Upon arriving at my parent’s house, I put the clothes that I was wearing earlier that night on the floor in the laundry. These clothes were located by police soaking in the washing machine on 6 April 2015.

21.   I was arrested on 6 April 2015. During a recorded interview with police on 7 April 2015, I falsely denied any involvement in the physical altercation, owning or possessing any knife or even being present at or near where the altercation occurred.

21. The making of these admissions alleviates the need for the Crown to prove the matters admitted in the document. There is some authority for the proposition that the making of such admissions may preclude the Crown from proving such matters. For example, in R v Longford [13] Gibbs J [14] said “the Crown ought not to call evidence to prove a matter which has been the subject of an admission, at least if the calling of such evidence would be likely to have any prejudicial effect on the accused.” His Honour went on to say that if the evidence was probative of another issue, the admission of one fact does not prevent the evidence as to that fact being given when it is relevant to another issue. Gibbs J (sitting in the High Court) made a similar observation in Yager v The Queen. [15] In Stubley v Western Australia, Heydon J cited this approach with apparent approval. [16] In fact, his Honour may have gone further (by omitting reference to possibility of prejudice) when he said:

“It is a particularly advantageous tactic because there is substantial authority for the view that once an admission of a matter of fact has been made by the defence, not only is it not necessary for the prosecution to call further evidence on that matter of fact, but it is not open to it to do so, unless that evidence is relevant to another issue.”

13. (1970) 17 FLR 37.

14. Sitting in the Supreme Court of the Australian Capital Territory.

15. (1977) 139 CLR 28 at 39; [1977] HCA 10.

16. (2011) 242 CLR 374; [2011] HCA 7 at [94], [106]-[107].

22. The remaining members of the High Court did not resolve or deal with this issue. In the footnote referring to the “substantial authority” to which he referred, Heydon J noted that in R v Smith [17] the New South Wales Court of Criminal Appeal denied that Longford reflected the law and practice in New South Wales. In Smith v R, Street CJ (with whom Samuels JA and Slattery J agreed) unambiguously declared that the propositions enunciated in R v Longford do not reflect the law of New South Wales. [18] Judges sitting in the New South Wales Court of Criminal Appeal have followed Smith and made similar, and stronger, statements on the matter. [19]

    17. [1981] 1 NSWLR 193.

    18. Ibid at 195.

    19. R v JGW [1999] NSWCCA 116 at [42]-[44]; Frazer [2002] NSWCCA 59, 128 A Crim R 89 at [45]-[46].

23. The binding authorities in this state establish that there is no bar to the Crown leading evidence to prove matters that are subject to admissions. However, I accept Mr Boe’s submission that the effect of such admissions may mean that a particular matter is no longer a “fact in issue”. This may impact on the question of whether the evidence is “relevant evidence” under s 55 of the Evidence Act and also on a proper assessment of the probative value of the evidence for the purpose of ss 135 and 137. “Probative value” is defined as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.” [20] In each case, it will be necessary to compare the matters that the Crown is required to prove with the substance of the admission made by the accused. In some cases, it may be that the evidence is no longer relevant because the fact is not in issue in the proceedings. More commonly, it may be that the probative value of the evidence is reduced and, if the evidence would result in an undue waste of time (s 135) or create unfair prejudice (s 137), it may be inadmissible in the exercise of discretion.

    20. Dictionary, Evidence Act 1995 (NSW).

24. Returning to the facts of the present case, it is conspicuous and significant that Mr Brooks does not admit deliberately stabbing either Mr Gibbins or Mr Swindell. The admission he will make is that he “deliberately used” the knife in the course of the physical altercation. How he used it is not clear. Further, the admissions go no further than allowing for the “reasonable possibility” that the accused caused the wounds to Mr Gibbins and Mr Swindell. There is no clear admission that he in fact caused the wounds.

25. These admissions are not sufficient for the prosecution’s purposes and would certainly not support a conviction. The Crown will be required to establish beyond reasonable doubt that Mr Brooks in fact caused the wound to Mr Gibbins and that either he, or his brother, or both, caused the two wounds suffered by Mr Swindell. The Crown must also prove an intention to kill or to inflict really serious injury. Establishing that the accused “deliberately used” the knife is not likely to do this. The Crown may seek to establish (by direct evidence or by inferences available from other evidence) that Mr Brooks deliberately stabbed the victim(s). The admissions do not go that far.

SHOULD THE PROSECUTION BE ALLOWED TO LEAD EVIDENCE OF MR BROOKS’ POST OFFENCE CONDUCT TO ESTABLISH A CONSCIOUSNESS OF GUILT?

26. Central to a number of the objections raised by the accused is the question of whether the prosecution should be permitted to adduce evidence of conduct of the accused that occurred after the stabbings. The Crown contends that the conduct may lead the jury to conclude that the accused was exhibiting a consciousness of guilt. The Crown does not rely on the evidence that the accused fled the scene immediately after the incident as evidence of “flight”. However, it seeks to lead evidence that Mr Brooks disposed of two knives (at least one of which was used in the course of the incident), that he washed his shoes shortly after the stabbing and that he told a number of material lies when interviewed by police. It seeks to use that evidence as demonstrating a consciousness of guilt on the part of Mr Brooks. The accused objects to this evidence on the basis that it is not relevant to the facts that remain in issue in the light of his formal admissions or, alternatively, that the probative value of the evidence is outweighed by the danger of unfair prejudice.

27. The accused submits that, in the face of his formal admissions, the evidence said to demonstrate a consciousness of guilt is not relevant in the sense that it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. [21] It is submitted that the real or live issues in the case have been narrowed so that there are only two issues, namely, whether the accused acted in self-defence and whether the accused had the requisite intention to be guilty of the crime of murder. The conduct said by the Crown to demonstrate a consciousness of guilt was conduct equally explicable to by the fact that the accused may have been attempting to distance himself from his involvement in a fight in which he produced a knife and/or that he had a consciousness of guilt related to a lesser crime (in particular, manslaughter). To adopt the language employed in some of the authorities, the evidence was “intractably neutral as between murder and manslaughter”. [22]

    21. Section 55 Evidence Act 1995 (NSW)

    22. See, for example, The Queen v Baden-Clay [2016] HCA 35 at [74]; (2016) 334 ALR 234.

28. Reliance was placed on the seminal authorities concerning consciousness of guilt evidence such as R v Lucas [23] and Edwards v The Queen. [24] These authorities emphasise the fact that for evidence of post offence conduct to be admissible to establish a consciousness of guilt it must “relate to a material issue” and must be “explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.”[25]

    23. [1981] 1 QB 720.

    24. (1993) 178 CLR 193; [1993] HCA 63.

    25. Ibid at 210-211.

29. It was further submitted that jury directions on the issue would be unduly complicated, circular and confusing. Accordingly, even if it were accepted that the evidence had some relevance, the accused relies on the Court’s power to exclude evidence where the probative value is outweighed by the danger of unfair prejudice. As with the argument concerning relevance, this contention relies on the narrowing of the issues by reference to the formal admissions and the fact the post offence conduct cannot properly be directed solely to the crime of murder.

30. The accused’s argument receives support in the judgments of Simpson J (as her Honour then was) in R v Cook, [26] R v Sievers [27] and Steer v R. [28] In Cook her Honour held that evidence that the appellant took flight and hid from police in a manhole was wrongly admitted because to explain his actions the accused would have to disclose other criminal offences with a “disturbingly close relationship to the offence with which he was charged”. The conduct was equally explicable by a consciousness of guilt of those other offences. However, her Honour did not accept that there was any general rule that evidence was inadmissible because it would “put the accused person in the position of explaining his conduct in such a manner as would disclose the commission of other offences.”[29] Cook and similar cases are concerned with the situation where explaining the post offence conduct may result in the disclosure of other criminal conduct. [30] The present case is different because the argument is that the conduct may be explicable by reference to the accused person’s involvement in the incident giving rise to the charges but is not necessarily indicative of a consciousness that he is guilty of murder (or manslaughter).

    26. [2004] NSWCCA 52.

    27. [2004] NSWCCA 463; 151 A Crim R 426.

    28. [2008] NSWCCA 295; 191 A Crim R 435.

    29. Cook at [46].

    30. See also, for example, The Queen v Bridgman (1980) 24 SASR 278 and R v Taranto; R v Freeman [1999] NSWCCA 396 (especially Hidden J at [46]-[50]).

31. In R v Sievers the appellant pleaded not guilty to murder but guilty to manslaughter on the grounds of provocation. The prosecution relied on evidence that the accused disposed of a knife, cleaned up the crime scene, disposed of the body and took flight interstate. This evidence “compelled the conclusion that he was motivated by a consciousness of guilt”. [31] The ground raised in the Court of Criminal Appeal concerned the directions given to the jury, which failed to distinguish between a consciousness of guilt for murder and consciousness of guilt for manslaughter. The case did not concern the admissibility of the evidence. The majority (Levine and Barr JJ) held there was no error in the directions. However, Simpson J would have upheld the appeal on this ground and made the following observations:

"79 The evidence was certainly capable of establishing that the appellant had a consciousness of guilt of having committed a crime; that crime being the killing of the victim. But that much had been admitted from the outset. That therefore was not an issue.

80 The directions given by the trial judge in relation to this issue are comprehensively set out in the judgment of Barr J and I do not propose to repeat them, except to observe that his Honour repeatedly emphasised that consciousness of guilt evidence could only go to a consciousness of guilt of the crime charged, and not of some other crime. This is a conventional point to be made in any case where the Crown relies on evidence said to signify a consciousness of guilt.

81 It is not, however, in my opinion, an appropriate direction to give where the only issue in the trial is whether the accused person is guilty of murder or of manslaughter. The direction implies that the accused person is aware of the sometimes subtle and sophisticated distinction between conduct constituting the crime of murder and conduct constituting the crime of manslaughter. In the present case it assumes an appreciation in the appellant of circumstances that would render this crime manslaughter as distinct from murder.

82 The only issue in the trial was whether the Crown had eliminated provocation. To be relevant, the evidence had to be capable of showing that the appellant knew he was guilty of the crime of murder as distinct from the crime of manslaughter. It could not have been relevant for that purpose unless it went to the appellant’s knowledge – and knowledge at the time of the acts said to evidence consciousness of guilt – of circumstances relevant to the Crown’s attempted rebuttal of the provocation defence. To show consciousness of guilt of murder as distinct from manslaughter in the circumstances of this case, the evidence had to be capable of showing that, at the time he did the acts, the appellant knew that he did not lose his self-control, or that any loss of self-control was not induced by any conduct of the deceased, or that the conduct of the deceased was not such as could have induced an ordinary person in the position of the appellant to have so far lost his self control as to form an intent to kill or inflict grievous bodily harm on the deceased. That presupposes that, at the time he did the acts, the appellant appreciated the circumstances that make a killing murder as distinct from manslaughter. There is no reason to suppose that the appellant ever had any such appreciation. The evidence was not capable of going to any of the matters to which I have referred – i.e. the s23(2) matters.

83 The complaint that is now made is not about the admission of the evidence but about the directions given as to the use that could be made of that evidence. But the point remains good. The directions must have led the jury to believe that the evidence was relevant to the only issue in the trial. In my opinion it was not, and the directions were therefore misleading.

84 In my opinion, the only guilt of which the appellant could reasonably be said to have been conscious was of guilt of killing – even unlawfully killing – the victim. But that was not in issue. It was abundantly clear that his guilt of unlawful killing was accepted. None of the evidence in question – disposal of the weapon, cleaning up the crime scene, disposing of the body, false denials, or interstate moves – could in any way go to establish that the appellant was conscious that he was guilty, not of manslaughter, but of murder.

85 In my respectful opinion the directions were irrelevant. They also were capable of leading the jury to believe that the evidence in some way could assist them in the only determination they had to make. In this respect it is important to recall that the issue of provocation was effectively the only issue in the trial.”

31. Sievers at [32] (Levine J).

32. I agree with those observations while accepting that her Honour’s was a dissenting judgment, and that the judgment of the majority is binding subject to further developments in the law.

33. A similar issue arose in Steer. The accused killed the man for whom his partner had rejected him and the Crown relied on his conduct after the event to demonstrate a consciousness of guilt. That conduct included committing a bank robbery to fund his intended flight and disappearance. The issues left to the jury were self-defence and provocation. Objection was taken to the consciousness of guilt evidence but the trial judge held that the evidence was admissible as it “might be found by the jury to reflect an awareness on his part that his action in killing the deceased did not flow from a belief that he had been acting in defence of his person”. [32] McClellan CJ at CL held that the evidence was properly admitted and “capable of being understood by the jury as reflecting a consciousness in the appellant that he had wrongfully killed the deceased” and that he knew that “he had not acted in self-defence”. [33] However, the majority (Simpson and McCallum JJ) held that the directions were inadequate. [34] Simpson J acknowledged that her judgment in Sievers was a minority opinion but adhered to the view that she had expressed in that case. Her Honour explained:

“72 Self defence and provocation are legal concepts. Unless the evidence otherwise establishes, an accused person should not, ordinarily, be presumed to know what they mean or what circumstances make them available.

73 The directions given by the trial judge made the same assumption. In my opinion, those directions were inadequate to meet the requirements of Edwards, and were not moulded to fit the circumstances of the case.”

32. Steer at [32].

33. Ibid at [36]-[37].

34. Ibid at [71]-[73] (Simpson J); [76] (McCallum J agreeing).

34. While the majority in Steer held that the directions were inadequate, it is unclear whether they concluded that the evidence was wrongly admitted. [35] Ultimately, the majority applied the proviso based on the basis of an “extremely strong” prosecution case.

    35. McClellan CJ at CL noted at [31] that the trial Judge had considered an objection to the evidence. Simpson J at [65] said that it was “not in question” that the evidence “in some form” was properly admitted.

35. In Gall v R [36] it was held at [93] that the appellant’s “submission that the evidence of his post offence conduct could not distinguish between a consciousness of guilt for murder or manslaughter is misconceived”. However, this was on the basis that there was no suggestion at the trial that “the post offence conduct could be used in this way or was capable by itself of establishing guilt of any particular offence.” It was held that the evidence was relevant to the question of intention and to negative self-defence.

    36. [2015] NSWCCA 69.

36. In Mulvilhil v R [37] it was held that “post-offence conduct may also be relevant to negative a defence of self-defence or provocation”. Gall was cited as authority for that proposition.

    37. [2016] NSWCCA 529.

37. A five-judge bench in the Victorian Court of Appeal considered the issue in R v Ciantar. [38] The Court accepted at [40] that “there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral.”[39] However, the Court rejected the proposition that would “usually be so” and declined to follow an earlier Victorian case and two Canadian cases that suggested the evidence should be rejected as having no probative value “where an accused conduct may be equally explained by reference to consciousness of guilt of two or more offences.” [40] The Court was “not persuaded that it is either necessary or desirable so to restrict the circumstances in which a jury may find evidence of post-offence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiple-count presentment”. [41] Ciantar was not a case of murder but involved a culpable driving charge in circumstances where less serious offences (such as dangerous driving or drink driving) may have explained the post-offence conduct.

    38. (2006) 16 VR 26; [2006] VSCA 263.

    39. Ibid at [40].

    40. See the discussion at [40]-[45].

    41. Ibid at [64]. See also the discussion at [65]-[69].

38. In Baden-Clay v The Queen [42] the High Court unanimously held that “there is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter”. [43] That observation plainly acknowledges that there will be cases where the evidence is intractably neutral as between the two forms of homicide. The Court adopted what was said by Major J in the Canadian case of R v White [44] : “The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute.”

    42. [2016] HCA 35; (2016) 334 ALR 234.

    43. Ibid at [74] (French CJ Kiefel, Bell, Keane and Gordon JJ).

    44. [1998] 2 SCR 72 at 91 [32].

39. As presently advised, on the basis of the material tendered on the voir dire, I am of the view that the evidence of post-offence conduct is “intractably neutral” as between murder and manslaughter. That view may change depending on how the evidence falls and how the case is conducted. Ultimately, it is a view that will inform the appropriate directions to be given to the jury in the course of the summing up. However, it is not determinative of the issue of admissibility that is presently raised.

40. For the evidence to be inadmissible altogether on the basis of relevance, a conclusion must be reached that evidence is neutral as between homicide (murder or manslaughter) and the proposition that Mr Brook’s post offence conduct was explicable by reference to a desire to distance himself from the incident and/or the fact that he produced a knife and used it in the physical altercation. It would be necessary to find that the evidence could not rationally impact on the jury’s consideration of whether Mr Brooks acted as he did because he knew that he deliberately stabbed the victims or knew that he did not act in self-defence. Alternatively, if the evidence is relevant, it could be excluded if the probative value was considered to be low or otherwise outweighed by the danger of unfair prejudice.

41. As I have observed, the formal admissions fall short of acknowledging a deliberate stabbing. As to causation, all that is admitted is the “reasonable possibility” that Mr Brooks caused the three stab wounds sustained by Mr Gibbins and Mr Swindell.

42. It would be open to the jury to find that the actions of Mr Brooks after the incident supports the prosecution case that he deliberately inflicted the stab wounds, that he did not act in self-defence and, perhaps, that he acted with an intention to kill or inflict grievous bodily harm. At this point, I remain to be convinced that the evidence could properly inform the jury’s determination of whether Mr Books acted with the specific intent required to establish murder. But even if it is accepted that the evidence is “intractably neutral” when it comes to distinguishing between the crime of murder and the crime of manslaughter, the evidence has both relevance and substantial probative force on the question of whether or not the accused acted unlawfully and knew that he acted unlawfully. It will be necessary to fashion careful directions to ensure that the evidence is not misused. However, I am not persuaded that such directions will be, or need to be, unduly complicated, confusing or result in a risk of circular reasoning.

43. Accordingly, the evidence of Mr Brooks’ post offence conduct is admissible. It may go to the proof of either manslaughter or murder in the way explained in the various cases. As I have implied, I will need to be convinced that the evidence should be left to the jury on the basis that it might support a conviction for murder, as opposed to a conviction for manslaughter. In that regard, I find the reasoning of Justice Simpson in Steer and Sievers to be unimpeachable. Nothing in the decisions of Gall, Mulvihill or Baden-Clay require me to the direct the jury that the evidence might provide corroboration for the crime of murder as distinct from manslaughter (either by unlawful and dangerous act or excessive self-defence).

RULINGS ON OBJECTIONS

Madison Valentine

44. At the time of the incident giving rise to the present proceedings, Madison Valentine was in a romantic relationship with the accused. It is also the case that she is a relative of Mr Swindell. She was interviewed on at least three occasions. In the first of the interviews, which took place on 7 April 2015, it seems that Ms Valentine misled the police in relation to a number of significant matters. On 27 April 2015 she was again interviewed by the police and on this occasion, at least according to the Crown, she provided an honest and accurate account. Finally, on 27 May 2016, she provided an account of certain admissions that she alleges were made by the accused to her. There are also several statements provided by her to police and there are two telephone intercepts of conversations between her and the accused which occurred on the 3 and 22 October 2015.

45. The material contained in Ms Valentine’s interviews with police is discursive and, at least on its face, charged with emotion. Many of the answers are, with respect to the witness, non-responsive and apparently the result of a stream of consciousness rather than a direct response to the questions being posed by the investigators. The upshot is that it was difficult for counsel for the accused to determine precisely what parts of the material the Crown proposed to lead, particularly when much of the material was on its face inadmissible because it comprised of opinions, rumour, innuendo and hearsay. In the course of submissions, counsel undertook to agree on those parts of Ms Valentine’s evidence agreed to be admissible. I am grateful to counsel for the fact that this has been done. There remained three objections to the evidence of Ms Valentine.

The purchase of the knife

46. The first objection concerned her evidence of purchasing the knife for the accused that was used in the incident. The accused submitted that there was no issue that he produced and used a knife and that it was the knife purchased for him by Ms Valentine. Accordingly, her evidence of buying the knife was of little or no probative value to the live issues in the case. Further, it is clear from reading her interviews that Ms Valentine became emotional when speaking about this subject. No doubt, in view of what happened and its dire consequences, Ms Valentine felt guilty about purchasing the knife and, perhaps, responsible for what happened. The risk that Ms Valentine may become emotional if questioned on this topic was said to give rise to the danger of unfair prejudice.

47. In answer to the submissions of the Crown that the evidence was relevant to rebut the suggestion that the knife was purchased in response to the events of 27 March 2015 when the accused was assaulted, the agreed facts as proposed were amended to include the further additional paragraph which says:

“At no stage in the circumstances in which Madison Valentine gave me the knife was there any discussion of the events that occurred at the Beachcomber hotel on 27 February 2015, when I had been assaulted in her presence.”

48. In those circumstances, I accept Mr Boe’s submission that the probative value of any evidence that Ms Valentine might give in relation to the purchase of the knife is slight. Based on those authorities to which I have earlier referred concerning the effect on the conduct of criminal proceedings of formal and detailed admissions, I accept the submission that the Crown should not be permitted to lead this evidence. In reaching that conclusion I have taken into account the possibility that the emotion likely to be engendered may create unfair prejudice. While that is not ordinarily a matter that would result in evidence being excluded, the peculiar circumstances pertaining here and the clear admission made on behalf of the accused, eschewing any connection between the purchase of the knife and the events of 27 February 2015, satisfies me that the evidence is not admissible at this stage.

49. I say “at this stage” because it may be that the Crown would seek to re-ventilate this ruling if the accused took a course in cross-examination or in conducting his case that might be seen to suggest that Ms Valentine and/or the accused were motivated in purchasing the knife by the events of 27 February 2015.

50. The second area of dispute between the parties in respect of Ms Valentine’s evidence concerns her assertion that the accused made an admission to her in relation to stabbing the deceased and/ or Mr Swindell. Precisely what evidence Ms Valentine may give on this subject is not completely clear from the recorded interviews with the police. However, what is clear is that she asserted that the accused said things that suggested he was aware that he stabbed the “victims” in the arms and chest. One relevant passage is in her interview of 27 May 2016:

Q36.    That’s O.K. In your conversation with him did he, did his answers, were they to a question from you or did he tell you what it was that he’d done?

A    I said “Did you do it”.

Q37   O.K.

A   And I said “Stop lying to me I want to know” and he told me yes he did. And then I said “Well if you did it show me where you did it”. And he pointed but I can’t remember, I don’t want to say exactly ‘cause I don’t want to be wrong.

…

Q55   O.K. Yeah. And what, when you asked him ---

A   I just remember him saying like in the arm or in, I just, I can’t. I don’t want to say exactly where ‘cause I don’t remember. I don’t want to say the wrong thing if that makes sense.

Q56   O.K. What is it, what do you remember him saying?

A   I just remember him telling me he did it and that’s it.

Q57   O.K. When he told you when you asked him where he did it did he, and you said you don’t remember what he said. Was it, did he say words, did he show you, did he ---

A    He pointed.

Q58    O.K. And where did he point to?

A    I don’t, I’m pretty sure he just pointed to one of his arms and the chest that was it. I just, I don’t know if it was the left arm or the right arm. I don’t, I don’t remember ‘cause it was so long ago.

51. Because the terms of the formal admissions go no further than acknowledging the “deliberate use” of the knife and the “reasonable possibility” that Mr Brooks caused the wounds, the evidence that Ms Valentine may give as to admissions made by the accused is relevant and probative of matters remaining in issue in the trial. Those issues are whether the accused committed a deliberate stabbing and whether he caused the injuries to the arm and chest(s). It is not clear from the proposed admissions that the accused is admitting that he deliberately stabbed somebody as opposed to some other use of the knife within the fight. It might be thought that one logically flows from the other, but in the absence of complete clarity, the Crown is entitled to prove its case. The evidence is relevant to the question of intention.

The telephone intercepts.

52. The final objection to the evidence to be elicited through Ms Valentine concerns two telephone intercepts relating to conversations between Bradley Brooks and Madison Valentine on 3 October 2015 and then on 22 October 2015. In the first of those conversations, there is reference to the fact that Mr Brooks intended to “plead”. It can be inferred that the intention was to plead guilty but the offence to which he intended to plead is not made explicit. Later in the conversation there is reference to a “deal” and also reference to sentencing proceedings that may result in a sentence of “three, four, five years on the bottom.” To a lawyer experienced in the criminal law, it may be obvious that Mr Brooks intended to offer to plead guilty to manslaughter. However, it would not be clear to a lay jury in the absence of evidence explaining the way in which charge bargains and negotiations proceed. A jury may well be misled into thinking that the accused was offering to plead guilty to murder or be given an erroneous understanding of the kinds of sentences that are imposed in cases such as these. One problem with this evidence is that it is unclear, and cannot properly be made clear, what legal advice Mr Brooks may have received that informed his decision to “plead” and “offer a deal”.

53. The Crown submits that the conversation is capable of rationally affecting the probability that Bradley Brooks intentionally stabbed one, or other, or both of the victims. Put another way, a decision to plead guilty is consistent with the accused acknowledging his guilt or demonstrating a consciousness of guilt. It is also said that the conversation supports Ms Valentine’s evidence that the accused had previously made admissions to her and that this explains his use of the expression doing the right thing.

54. I am told by Mr Boe, and accept unreservedly, that at about the time of these conversations, there was a formal offer by the accused to plead guilty to the crime of manslaughter.

55. I am unable to accept the submissions made by the learned Crown Prosecutor. There is no clear connection between the conversation and any earlier (alleged) conversation in which Mr Brooks admitted his guilt to Ms Valentine. Further, not every plea of guilty is the result of a genuine acknowledgement or consciousness of guilt. [45] Often, a plea of guilty is entered as a result of what I might call a risk analysis. That is particularly so in homicide cases where the sentencing outcomes on conviction for murder are so extreme and the parties often discuss the possible bases upon which a plea of guilty to manslaughter in full discharge of the indictment might be justified or appropriate.

    45. Peter Hidden QC, “Plead Guilty and Get it Over With?” (1991) NSW Bar Association, Bar News Summer 1991, p 19. See also Thalari v R (2009) 75 NSWLR 307 [2009] NSWCCA 170 at [35].

56. In my estimation, the probative value of the evidence is slight and the danger of unfair prejudice is very high. Even if the evidence was led in such a way as to make it clear that the offer to plead guilty related to a lesser crime (such as manslaughter or the malicious wounding of Mr Swindell), the risk of misuse of this evidence remains very high. Further, where the jury may be called upon to determine whether or not the accused is in fact guilty of manslaughter, there is real prejudice in eliciting evidence that the accused, on legal advice that is not known and not able to be known, made a forensic or tactical choice to offer to plead guilty to manslaughter. I am not satisfied that such conduct in the circumstances prevailing here is conduct that can properly be said to have arisen as a result of a genuine consciousness of guilt, let alone that it constitutes some kind of tacit admission that he committed a deliberate stabbing or did not act in self-defence.

52. The second of the intercepted telephone conversations involves an argument between Mr Brooks and Ms Valentine because the witness seems to be of the belief that the accused was reneging on his decision to offer the plea of guilty to manslaughter. There is nothing in that second conversation which elevates the probative value of the evidence when considering the live issues that will be before the jury.

53. Accordingly, while the evidence passes the threshold of relevance, I reject the evidence pursuant to s 137 of the Evidence Act. The probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. I also find that there is a real risk that the evidence would be misleading and confusing, and the necessity to explain the intricacies surrounding the process of “charge bargaining” in homicide cases will result in an undue waste of time. Accordingly, I would also find that section 135 is engaged and would also exclude the evidence in the exercise of discretion under that section.

Discussion that Mr Gibbins had died

59. In her interview with police on 27 April 2015, Ms Valentine provided an account of conversations she had with Mr Brooks between the time of the incident and Mr Brooks’ arrest. There is an objection to evidence of a conversation recorded at Q 158-159 of that interview. Because of the discursive nature of the answers in and around the impugned passage, it is difficult to discern exactly when the conversation occurred and what was said. However, it seems clear that Ms Valentine saw something on a social media site and discussed this with Mr Brooks. She looked up “what happened at the Beachcomber” and “sent a picture of the guy that died” and said “look at this, Brad, like, and …. died”. In spite of what I assume is an indecipherable portion indicated by the four dots and the incoherence of the passage as transcribed, it is reasonably clear that it was communicated to Mr Brooks that Mr Gibbins had died (although it seems he was not mentioned by name). Ms Valentine claims that Mr Brooks looked at the picture for “probably 5 minutes straight”, as assertion that seems unlikely, and from which no rational inference could be drawn in any event. She spoke about her feelings, her fears for her children and various other prejudicial irrelevancies.

60. This conversation cannot be led in the form disclosed in the answer to Q 158 but the evidence that Ms Valentine told Mr Brooks that the person stabbed outside the Beachcomber had died is relevant evidence. It has a capacity, rationally, to affect the jury’s assessment of the interview made by accused a day or so later. His knowledge that the victim died is relevant to the jury’s understanding of his conduct after he was arrested. Provided the learned Crown Prosecutor takes care in eliciting the evidence to ensure that the witness does not volunteer irrelevant or prejudicial material, I am unable to discern any danger of unfair prejudice in the evidence. The evidence is admissible.

Christopher Hughes

61. Objection is taken to specific paragraphs in a statement made by Christopher Hughes. Each of those paragraphs relates to the fact that between the time of the incident and when the accused arrived home he had removed his shirt. Mr Hughes describes him as “no longer wearing a shirt (and I didn’t see him carrying it)” and later said that Mr Brooks was “now wearing a white singlet”. As I understand it, the question of whether this evidence is, or is not, admissible turns on the question of whether the Crown is successful in its attempt to tender evidence relating to the post offence conduct of the accused giving rise to an inference that he acted with a consciousness of guilt.

62. For the reasons I have explained, the evidence of such conduct is admissible. I understand that such a finding will result in a further, specific admission by the accused and that it may not be necessary to call Mr Hughes. In any event, I hold that the evidence of Mr Hughes in paragraphs 16 and 22 is admissible although I note that parts of those paragraphs that contain opinions as to other people’s mental state will not be led in the trial.

The Electronically Recorded Interview

63. On 7 April 2015, that is two days after the incident that caused the death of Gregory Gibbins and the wounding of Adam Swindell, Mr Brooks was interviewed at the Wyong police station. The result was a recording that lasts for a little less than 2 hours and a transcript that runs to 84 pages. The Crown asserts that a number of answers are demonstrably false. The accused, by his offer of formal admissions acknowledges this. The latest version of those admissions includes the following relevant paragraph:

“21. I was arrested on 6 April 2015. During a recorded interview with police on 7 April 2015, I falsely denied any involvement in the physical altercation, owning or possession any knife or even been present at or near where the altercation occurred.”

64. If the ERISP is not admissible, this paragraph of the admissions would be deleted.

65. The Crown Prosecutor identified four categories of lies within the ERISP and carefully outlined the answers in which those lies were told. In view of the general conclusion that I have reached as to the admissibility of evidence demonstrating a consciousness of guilt, it is unnecessary to go into great detail. However, for the purposes of determining the admissibility of the evidence, I accept the prosecution submission that the lies are intricate, detailed and persistent.

66. The first category of lie identified by the Crown relates to the time that the accused left the premises and what he did thereafter, thus setting up a false alibi. The second is that he was wearing a black shirt (whereas he was, in fact, wearing a red singlet) and when confronted with photographic evidence, made further (allegedly) false assertions as to the fact that another man was wearing his black shirt. The third category of lie concerns the reasons he washed his shoes and the fourth concerns his denial of being in possession of a knife on the night.

67. It would be open to the jury to find that these lies were material and told out of a consciousness of guilt. Careful directions will be required as to the care that must be taken before using this evidence or in concluding that there is no other explanation for the telling of the lies. However, for reasons earlier identified, the evidence is admissible.

Telephone intercept of call between Mr Brooks and his father

68. The accused objects to a telephone intercept between he and his father that was recorded on 11 February 2016. In that call, the parties discuss the state of the police brief and the results of some DNA evidence. The father says “there’s fucken nothing Brad. They’re fucken idiots these cunts”. When he is told there is no DNA “even on the shoes”, the accused responds “fucken oath” and “sweet as”. Earlier when told that there is “nothing” the accused responds “Fuck. Cheering.” There is reference to opinions that were provided by the accused’s legal team as to the state of the evidence.

69. I am unable to identify any direct admission in this conversation and am unable to see how a jury acting rationally could infer from it a consciousness of guilt. It is hardly surprising that a young man charged with murder, and his father, should express relief, even excitement, at the prospect that the forensic case being mounted by the police has uncovered no inculpatory evidence. Divining a guilty mind out of this evidence would amount to pure speculation and not the product of deductive or logical reasoning. Particularly given the formal admissions to be made, any probative value that this evidence has is very slight. Further, the language employed in the conversation may suggest flippancy and callousness on the part of the accused in view of the tragic circumstances. In this regard the evidence creates a danger of unfair prejudice.

70. The probative value of the evidence is outweighed by the danger of unfair prejudice and s 137 of the Evidence Act mandates its exclusion.

CCTV stills of the accused and his group leaving the Beachcomber Hotel

71. The Crown seeks to tender six images captured by CCTV cameras. These depict Mr Brooks and his group leaving the Beachcomber Hotel at 11:57pm. The images are relevant to the size of the group, the timing of the departure, the clothing worn by various people and the size of the accused. I can see no danger of unfair prejudice in these images and the evidence is admissible.

Forensic procedure photographs

72. The Crown presses eight photographs of the accused taken during the course of a forensic procedure to which he consented. These include two photographs of his head and shoulders, one full-length photograph, four photographs of his hands and a photograph of his elbow and forearm. The Crown submits that the evidence is relevant as showing the size and stature of Mr Brooks a day or so after the incident. I am unable to accept that submission. The photographs do not include any scale so are unable to provide any guidance as to his size. Insofar as they demonstrate his stature or build, there are other photographs to be tendered that are capable of establishing that matter. In particular, the CCTV stills that will be admitted over objection depict the accused with other people so there is at least some point of comparison.

73. In light of the formal admissions to be made by the accused, the forensic procedure photographs could not rationally affect the assessment of a fact in issue. They fail the test of relevance and should be excluded.

Photographs of items seized during the search

74. Neither counsel took me through the 47 photographs of items seized during the search or explained why they were relevant or how they might create the danger of unfair prejudice. A brief perusal of the photographs suggests that many of them are not relevant and do have some danger to create prejudice.

75. For example, the first and second photograph depicts a pair of serrated interlocking knives with ornate handles. As far as I know, these have nothing to do with the case.

76. There are photographs of the accused’s driver’s licence, some telephones and a handwritten note that records a fight between two parties that, as far as I am aware, are not involved in the current case. There are many photographs of various items of clothing and shoes. I am simply unable to determine the relevance of this evidence.

77. On the other hand, I understand that some of the photographs depict the shoes that the accused and/or his brother was wearing at the time of the incident. Those photographs are relevant and I can see no danger of unfair prejudice in their admission.

78. At this stage, I will simply indicate the provisional view that, unless a particular photograph depicts an item that is relevant to the incident on 5-6 April 2015 (for example, the shoes or clothing worn by the accused or his brother) I am inclined to the view that it is not relevant or admissible.

DECISION ON ADVANCE RULING

79. I accept that the accused is entitled to introduce evidence that he was assaulted on 27 February 2015 and the impact that this assault had on him. I accept that this may be relevant to the issue of self-defence and may provide some evidence as to why he was carrying a knife. I do not perceive that the Crown contends otherwise.

80. However, the Crown submits that it should be entitled to adduce evidence of things he said that night to a doorman and specifically that he told the doorman that he would “stab the cunt”, that he knew where he lived and was going “to stab him”. The Crown says this evidence demonstrates that the accused was not fearful but angry. The accused, argues that that part of the narrative of the incident on 27 February 2015 ought not to be given because (i) it is not relevant to the issues in the trial, (ii) if it is relevant, its probative value is outweighed by its prejudicial effect, and (iii) if it is relevant, it is only relevant to establish a tendency in the accused towards violence or stabbing and its probative value lacks the significant probative value required for its admission under section 97 of the Evidence Act.

81. I accept the submissions made by counsel for the accused. The threat to “stab the cunt” was a direct reference to the person who had assaulted him and there is no suggestion that Mr Brooks carried out that threat even though he claimed to know where his assailant lived. The threat was obviously uttered while the accused was angry but this does not impact on its probative value to the issues for which the accused seeks to elicit the evidence in the present trial. There is a risk that a jury, even with firm and careful direction, may misuse the evidence as demonstrating a tendency in the accused towards violence. There is a risk that the evidence may be misused and a danger of unfair prejudice.

82. Accordingly, I make an advance ruling under s 192A of the Evidence Act that the accused may introduce the evidence of the incident of 27 February 2015 and the Crown may not introduce evidence that the accused threatened to stab the person who assaulted him.

RULINGS

83. I make the following evidentiary rulings:

1. The evidence of Madison Valentine concerning the purchase of the knife is not admissible.

2. The evidence of Madison Valentine concerning oral admissions made by the accused is admissible.

3. The two telephone intercepts between Madison Valentine and the accused dated 3 and 22 October 2015 are not admissible.

4. The evidence that Madison Valentine spoke to the accused about the fact that “the guy” died after “what happened at the Beachcomber” is admissible.

5. The evidence of Christopher Hughes as to clothing worn (or not worn) by the accused after the incident is admissible.

6. The electronically recorded interview with the accused on 7 April 2015 is admissible.

7. The CCTV still images captured at 11:57pm on 5 April 2015 are admissible.

8. The telephone intercept between the accused and his father on 11 February 2016 is not admissible.

9. The photographs taken during the course of the forensic procedure are not admissible.

84. I indicate the provisional view that, unless a particular photograph of an item seized during the search of the Manoa Road premises depicts an item that is relevant to the incident on 5-6 April 2015 (for example, the shoes or clothing worn by the accused or his brother), I am inclined to the view that it is not admissible.

85. I make an advance ruling under s 192A of the Evidence Act that the accused may introduce the evidence of the incident of 27 February 2015 and the Crown may not introduce evidence that the accused threatened to stab the person who assaulted him.

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Endnotes

Amendments

20 April 2017 - Typographical error on coversheet

Decision last updated: 17 November 2017