R v Chalmers (Ruling No 1)
[2009] VSC 482
•9 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1454 of 2007
| THE QUEEN |
| v |
| NEIL CAMERON CHALMERS |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2009 | |
DATE OF RULING: | 9 February 2009 | |
CASE MAY BE CITED AS: | R v Chalmers (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 482 | |
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CRIMINAL PROCEEDING – Crown sought to lead evidence of experiment – Time required to dig grave – Defence objection on basis of soil similarity and dimensions of test grave, capacity to encourage speculation by the jury – Test of admissibility of evidence – Evidence does not permit drawing of proper conclusion adverse to accused – High degree of sensitivity – Evidence excluded.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC | Office of Public Prosecutions |
| For the Accused | Mr C Dane QC | Lethbridges Barristers and Solicitors |
HIS HONOUR:
The accused is charged with the murder of Shirley Liang at the deceased’s apartment in Southbank on 24 February 2006.
It is not disputed that the accused killed Ms Liang but it is disputed that he did so deliberately with murderous intent.
Both the accused and the deceased were involved in the operation of a brothel in South Melbourne. They also lived together.
The deceased was last seen alive by an independent witness at 8:00 pm on 24 February 2006.
At 4:48 am on 25 February 2006 closed circuit video footage taken by a security camera, shows the accused carrying a body into the car park of the apartment complex in which the accused and the deceased lived. Shortly thereafter he drove his car to the Tallarook area and did not return until 10:00 am.
Information from the GPS device in the accused’s car shows he was at a location proximate to that at which the deceased’s body was ultimately found, for approximately 1 hour 40 minutes (the informant’s estimate).
The GPS data also shows that on 23 February he had made a prior trip to the vicinity of the same location along Ennis Road, a road leading through forest. The GPS data does not establish but is consistent with the proposition that he was in the vicinity of the grave site for some hours.
It is the Crown case that the accused dug the grave on 23 February and not at the time he took the body for burial.
It follows, it is said, that the killing was pre‑mediated and if this be accepted then the overwhelming inference is that it was both deliberate and intentional.
The defence case is that the first trip to Tallarook was undertaken by the accused, who is a landscaper, to look for rocks which he might utilise for landscaping. The second trip was undertaken with knowledge gained from the first trip, but the burial was effected, in panic, after the deceased died.
The deceased’s body was not in fact found until October 2007. At that time an initial trial of the accused for the murder of Ms Liang had proceeded for a week in this Court, when the accused indicated that he was prepared to assist police to locate the body. Thereafter the informant and other police travelled with the accused to Ennis Road, Tallarook, and the body was located in a shallow grave down a rough track some 80 metres off the road.
The body had undergone some decomposition, but post‑mortem findings showed that there had been a fracture of the right thyroid cornu (adjacent to the voice box) consistent with strangulation.
The Crown now seeks to lead evidence upon the re‑trial of the accused not only of the finding and condition of the body, but of an experiment, intended to demonstrate that it is ‘inherently unlikely’ the accused buried the deceased in the time he had available to him at Ennis Road on the morning of 25 February 2006.
In January 2008, three members of the Victoria Police search and rescue squad were timed and videotaped digging separate sample graves across the slope adjacent to the position in which the deceased’s body was found. The graves were of comparable dimensions to the grave site from which the body was exhumed.
The fastest time achieved was 1 hour 38 minutes, the next 2 hours 7 minutes and as the third officer had not completed the task by this time, he was not required to finish.
The Crown submits that in addition to digging the grave, it would have been necessary for the accused to place lime in it consistently with what was found when the deceased was disinterred, bring the body from the road to the grave, and fill the grave after the body was placed in it.
The defence objects that there is not sufficient similarity between the experiment and the hypothesis it seeks to reconstruct. It is submitted:
(1) The sub‑soil conditions cannot be assumed to have been sufficiently similar two years after the event.
(2) The experiment itself showed the soil was of variable difficulty to dig. The officer who did not finish the job, was confronted with clay which was noted by the informant to be ‘hard like rock’ and described by the first officer to finish digging as ‘almost concrete‑like’. Conversely, this officer was confronted with conditions comprising layers of coarser gravel as well as hard clay soil. He agreed the conditions differed in consistency within a couple of metres and the evidence as a whole supports this conclusion.
(3) The police were required to dig holes of greater dimensions than the grave which the accused dug. The dimensions they were given were those noted on exhumation of the body. They allowed for digging under the body. The grave site excavated was 1.068 metres deep at its deepest end and 0.461 metres deep at its shallowest end. It was approximately 1.855 metres long and 1.236 metres wide (having viewed the photographs eg 57 and 61, I am also somewhat troubled as to the precision of the width and precise overall length measurements). The measurements made were recorded in part as approximate and were made after the grave site was excavated entirely and the body removed. The excavation was made primarily for the purpose of exhuming the body and identifying the manner in which it was buried, but not for the purpose of establishing with precision the dimensions of the original grave.
(4) The test graves were not dug by the accused who is a large man, who customarily carries a shovel and other tools in his motor vehicle and has experience and skill in digging because of his occupation.
It is further submitted by the defence that the playing of the video tape, will encourage speculation on the part of the jury and the formation of opinion on bases not properly ventilated at the trial.
The Crown submits that the variables relied on by the defence are all capable of fair exploration in cross‑examination, and are matters for the jury to give weight to as they see fit.
The test which was undertaken may be characterised either as an attempt at reconstruction of the defence version of events, or as an experiment designed to demonstrate that version is not credible. (See R v Baker [1989] 3 NZR 635).
The test of admissibility was stated by the Court of Appeal in R v Neilan[1] by approving the following passage from American Jurisprudence 2d:
One desiring to make an experiment or test in court or to introduce evidence of an experiment or test made out of court should first show that the experiment or test is to be made or was made, as the case may be, under conditions and circumstances similar to those prevailing at the time of the occurrence involved in the controversy; otherwise, the courts will not, as a general rule, permit the making of the experiments or tests or the introduction of evidence thereof. It is clear, however, that the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if there is substantial similarity of conditions. Minor variations in the essential conditions go to the weight rather than the admissibility, of the evidence.
There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied. This depends largely upon the purpose for which such evidence is to be introduced. Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances.[2]
[1][1992] 1 VR 57 [74] – [75].
[2]29 Am. Jur. 2d.
That test was again applied by the Court of Appeal in R v Holmes [2008] VSCA 128.
The statement of principle found in the South Australian case of R v Ireland,[3] and applied in the Australian Capital Territory case of Thompson v R,[4] is also founded on American authority.
[3](No 2) [1971] SASR 6 at [14] – [15].
[4](1986) 13 FCR 165.
The passage cited in Neilan makes clear that the primary enquiry is whether there is substantial similarity between the experiment and the thing being sought to be investigated. That similarity must be judged in the light of the purpose for which the experiment is being conducted. The judgment must also have regard to the potential of the experiment to confuse or mislead the jury.
In the present case the purpose for which evidence of the experiment is now sought to be adduced, is to show that the accused could not have buried the deceased’s body in the 1 hour 40 minutes available to him on the morning after her death.
As I have said the fastest police officer took 1 hour 38 minutes to dig a ‘comparable’ grave at the time of the experiment. It can be seen however that no more than a 5 % deviation in this time, produces a situation in which on the one hand the accused might have buried the body within the time available and on the other hand he manifestly could not have done so.
In my view the results of the test are so tight, that any material variation in the circumstances hypothesised and those tested, renders the result incapable of bearing a satisfactory inference.
I return to the matters raised by the defence.
The state of the sub‑soil
Sergeant James described the sub‑soil at the time of the experiment as compacted clay containing pieces of quartzite. He said the soil in the area of the deceased’s grave was generally similar to soil excavated by the three police officers. There is however no evidence as to the potential effect of a different moisture regime upon this soil two years earlier. There is evidence that both at the time of the burial and at the time of the experiment, the weather was sunny and dry. But this does not preclude the real possibility that the sub‑soil clay was dryer at the date of the experiment in 2008, than it was in 2006. Senior Constable Starr, a crime scene examiner, states of the exhumation:
Upon digging to expose the remainder of the bones the soil consistency changed from dry and hard to moist and softer consistency. The soil also became darker in colour. A representative sample of soil was taken from this depth.
In my view this description gives rise to a real possibility in my mind that digging of the experimental graves was harder in 2008 than the digging of the grave itself in 2006. It is apparent the consistency of the soil at the grave site was sensitive to moisture content, and the evidence is that at the date of the experiment there was no sign of moisture in the clay soil.
Variability of the soil
The police officer who first finished the experimental dig, was the one closest to the original grave. He dug a grave pegged out some two metres across from the original gravesite. In turn the next officer attempted to dig a grave a further two metres across the slope. When he did so he encountered clay of a rock‑like hardness. Both notes made at the time and the evidence of the police officers on the preliminary hearing confirm that the soil varied materially within a space of several metres in terms of difficulty of excavation. No core samples or other sampling of the clay immediately adjacent to the grave was undertaken at the time of the experiment. There is no direct comparison evidence of the soils in issue. We know they came from the same general site, but we also know they varied materially in a matter of metres in terms of hardness and that the most easily excavated experimental grave was that closest to the grave of the deceased.
The dimensions of the grave
The dimensions of the hole dug at the time of burial, were not the principal focus of enquiry at the time of exhumation. The evidence of one of the crime scene examiners is that the hole measured after the body was retrieved, was in part created by digging under the body, in order to remove it satisfactorily, together with the soil upon which it rested. As I have said the photographs also suggest that the precision of the measurement of the width and overall length of the original grave may also be open to doubt.
The identity of the person digging
There is, as the prosecutor submitted, no evidence presently before the Court of the accused’s capacity to dig. Nevertheless it is a not unreasonable hypothesis that he may as a landscaper who uses digging tools, possess skill in this regard. It seems to me that the utilisation of three police officers of a very high level of fitness, may not necessarily offset such skill. It is human experience that the use of hand tools efficiently is an acquired knack.
It is difficult to evaluate the cumulative effect of these matters. If the only matters raised were that of the dimensions and the capacity of the accused, then despite the obvious potential significance of these matters, I would incline to the view that these were matters capable of clarification in evidence which I should be prepared to let go to the jury. The questions relating to comparability of soil conditions are however in my view more fundamental and not readily capable of further clarification.
When taken together the matters I have mentioned, result in a position in which in my view no jury could properly draw the inference the accused could not have completed the digging task and in turn the burial of the deceased within 1 hour and 40 minutes.
The Crown case is not materially assisted by the additional tasks it hypothesises. The GPS data stops on the road at a particular time, but it may be the GPS was turned off once the rough track was located (after a U‑turn) and the accused drove effectively to the gravesite. Neither the placing of lime in the shallow grave nor its filling, would have taken particularly long. Sergeant James was able to fill in the grave excavated by him in 2 or 3 minutes.
The Crown case would necessarily encourage speculation by the jury as to the variables, which both the Crown and the defence have identified.
In my view, the evidence does not permit the drawing of a proper conclusion adverse to the accused and conversely does have the capacity to mislead the jury.
Further, because the Crown contention, if accepted, would be conclusive in itself of the issue of intent, the evidence carries a very high degree of sensitivity.
In my view, the evidence should be excluded. In so ruling I do not of course shut out the Crown from contending the grave was dug the day prior to the killing. There are a series of other circumstances which taken together might support this conclusion. Nevertheless, the Crown cannot go to the jury upon the basis of the experiment which has been objected to.
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