R v Christiansz
[2015] VSC 94
•17 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 0094 of 2014
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH GEORGE CHRISTIANSZ |
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Ruling No. 1
JUDGE: | KING J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2015 |
DATE OF RULING: | 17 March 2015 |
CASE MAY BE CITED AS: | R v Christiansz |
MEDIUM NEUTRAL CITATION: | [2015] VSC 94 (Ruling No. 1) |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson | Office of Public Prosecutions |
| For the Accused | Ms C Randazzo SC | Melasecca, Zayler & Kelly Barristers and Solicitors |
HER HONOUR:
In this case the following relevant documents were delivered and filed:
1) a summary of prosecution opening - 6 March 2015 — Exhibit 1 for the purposes of submissions and arguments as to relevance and admissibility of certain parts of the evidence;
2) defence response - 12 March 2015 — Exhibit 2;
3) submissions relating to motive and other aspects of the Crown case which were the subject of objection - 15 March 2015 — Exhibit 3; and
4) further submissions in response to the prosecution’s submissions of 13 March - 16 March 2015 — Exhibit 4
Resolved evidentiary issues
Those documents, and submissions in support, were relied upon during preliminary discussions and argument as to the admissibility of various aspects of the evidence in the. During those submissions and debate certain matters were resolved and all parties agreed that there was no necessity for the court to rule on the admissibility of those agreed matters.
To ensure that there is no confusion I will list the areas of evidence to which objection was originally made, and the resolution that both parties concurred was the correct conclusion. The parts of the evidence objected to were:
(i) The admissibility of the evidence that the accused was a prohibited person, which was a necessary element of the offence in charge 7 on the indictment, that the accused was a prohibited person in possession of a firearm. That matter has been resolved by the accused indicating that he will plead guilty to the charge of prohibited person and the Crown accepting that plea and agreeing to sever that charge from the indictment.
(ii) Issue was taken with the description of Mr Loulating, a security guard, who was in the employ of the accused. It is conceded by all parties that Mr Loulating was employed as a security guard on this day by the accused, through a company called Pure Protection. In his statement Mr Loulating said that he was arrested by police on that day but he had been exonerated. In relation to what he was doing in terms of assisting the accused, he stated that he was sort of looking after him and being utilised to move furniture and protect him from ex-partners he used to work with. Currently, I am not being called upon to rule in respect of the admissibility of this witness as the Crown intend to speak to him and clarify what, if anything, he can say that will be of assistance in this trial. The defence are keen to be able to cross-examine him but whether that desire to cross-examine will remain if he has no admissible evidence to give is a matter that I have yet to ascertain. These are matters to which I will turn my mind if required to do so by the parties, but that situation has not yet arisen.
(iii) The accused, after being shot, was found to have in his possession a plastic bag containing methylamphetamine and a bundle of money comprising $5,000 in $50 notes held together by an elastic band, together with a drivers licence from New South Wales with a picture of the accused, but containing false name and identifying details, and a security access fob/key to the premises. Initially there was objection to the leading of the drivers licence and the security access key but that objection is no longer maintained.
(iv) The accused objected to paragraph 32 of the opening which referred to the evidence of Dr Angela Sungaila, forensic physician employed by VIFM. The only aspect of Dr Sungaila’s evidence that was objected to was the evidence that, because of the high concentration of methylamphetamine found in his blood, ‘the accused would have been more likely to engage in violent and risky behaviour’. It was argued that Dr Sungaila was not qualified to give such an opinion but could only speak as to the level of methylamphetamine found in the accused’s blood. In respect of that evidence, as was apparent during our discussions, it became clear that all parties agreed that Dr Sungaila could give evidence to the effect of how persons who engage in taking a level of methylamphetamine of the level contained in the blood of the accused, may react. It is my view that the doctor is able to opine that it is possible that at that high level of methylamphetamine in the blood, a person would be more likely to engage in violent and risky behaviour. The defence do not object to evidence given in that form and the prosecution seem content to lead evidence in that format. That is a matter that has not been totally resolved at this point, and if required I will upon the admissibility of that evidence.
(v) There was objection, initially, to the possible reasons for the obliteration of fingerprints on the gun, that has now been resolved and the defence no longer object to it being led.
(vi) The Crown, initially, also sought to lead evidence of a text message referred to in a statement by the accused’s father that some two weeks prior to this incident the accused’s girlfriend forwarded a text message to him from the accused which read ‘I am going out in a blaze of glory’. This was alleged to have been sent on 25 October 2012, and this incident occurred on 12 November 2012, the temporal connection not being obvious. Upon re-examination of this material, the Crown have, wisely, determined that it is inappropriate to lead the evidence and it will not be led.
(vii) Finally, the accused sought to have excluded the evidence presented under the heading ‘Possession of the Firearm and the Accused’s Familiarity with it’ contained in the Crown opening, which comes from the statement of Jayme Broom, which says that the accused occupied the master bedroom and en suite in Unit 4003, that he saw the revolver in the accused’s bedside drawer when the accused was residing there and he described it as an old-looking revolver, with a six round chamber and a barrel length of about 15 cm, a wooden grip and he thought it had a hammer on it. He said he also saw the accused with the revolver on numerous occasions leading up to the incident. The accused would tuck it into the top of his pants, or in his jacket and he saw the accused fire the weapon in the apartment car park, close to the events in question. He also saw the .22 calibre ammunition in the apartment where the accused lived. Initially counsel for the accused requested that this evidence be excluded, on the basis of prejudice, as she argued the fact of the firearm being in the possession of the accused would indicate his familiarity with it, sufficient for the purposes of any jury. After some discussion relating to whether or not this material was in fact advantageous to the accused in the light of the defence he was running, counsel indicated that they desired to think about whether or not they wished to have the evidence excluded. I have since been informed that counsel does not maintain the objection and is in fact desirous of the evidence being led. Accordingly, I do not need to rule upon the admissibility of this material.
The evidence still in dispute
Exhibit 2[1] states:
Further as to paragraph 29 of the opening, the accused does not dispute that a search warrant was executed at 4003/100 Harbour Esplanade, Docklands and that the items there listed were located within the apartment.
[1]Exhibit 2, defence response – paragraph 26
The relevant paragraph reads:[2]
A search warrant executed by the police at the accused residence located at 4003/1000 Harbour Esplanade, Docklands on the evening of the shooting located evidence of occupancy, false documentation bearing the accused’s details, $5000 cash monies, a bag of white powdery substance (heroin – 27.9 grams), a .22 calibre ammunition casing, an ammunition holder and a box of subsonic ammunition which matched the type of ammunition located in the revolver used by the accused during the shooting.
[2]Exhibit 1, crown opening – paragraph 29
Whilst not disputed that the material outlined above were located at the premises, in further written submissions on behalf of the accused it was argued that the heroin located in the premises in Docklands should not be led on the basis of a number of reasons:[3]
[3]Exhibit 4 — further submissions in response to the prosecution’s submissions of 13 March — paragraphs 6-10 and 14.
Paragraph 6 heroin — the accused denies any knowledge of the heroin. Simply put, the heroin was not his and may have belonged to Jason PHONG and/or Jayme BROOM or known drug associates of theirs who were present at the apartment the night before. The accused has admitted to using methylamphetamine and will, by virtue of his non-objection to the leading of that evidence, deny either use or possession of heroin. The accused has never used heroin. No heroin was detected either in his system or on his person. Heroin is a drug known to remain detectable in a person’s system for a long period of time after use.
Paragraph 7 — Jason PHONG was also residing at the apartment. PHONG is on both the witness list and on the index to depositions. The defence will cross-examine PHONG as to both his use and possession of heroin and his associates present at the apartment that night and the following morning. The defence seeks production of any criminal record of Jason PHONG and Jayme BROOM.
Paragraph 8 — The evidence of heroin within the apartment, is both highly prejudicial (as it infers the accused was a drug dealer, given there is no evidence he was a “user” of heroin), and is an unnecessary piece of evidence adding any probity to the “motive” the prosecution wish to rely upon.
Paragraph 9 — Accordingly it is submitted that the evidence of heroin located in the apartment should not be admitted into evidence as it’ (sic) “probative value is outweighed by the danger of unfair prejudice to the accused”:
see Evidence Act 2008 s 137
Velkoski v The Queen [2014] VSCA 121 and
Rapson v The Queen [2014] VSCA 216.
Paragraph 10 — Alternatively, it is submitted that the court should exercise its discretion pursuant to s 135 of the Evidence Act 2008, and refuse to admit it as its “probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial”.
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Paragraph 14 – in summary, as to motive, it is submitted:
(i) The prosecution are entitled to lead evidence of “motive” per se,
(ii)The defence will not object to the leading of evidence that methylamphetamine was located in his system, and on his person, but will challenge (if led) that the heroin in the apartment was his or that he had knowledge of it. To this end the defence will cross-examine PHONG (if admitted into evidence) and will, in addition, rely on the fact that no heroin was located in his system or on his person.
(iii)The defence will not object to the leading of evidence that money was located in his apartment and on his person.
(iv)The defence will not object to the evidence of the two stolen vehicles having been stolen by him.
In connection with this, the defence referred to paragraph 7 of the prosecution’s submissions Exhibit 3 wherein there was a reference to the accused ‘investing money in drugs’. Exhibit 1 states:[4]
The accused has a lot to lose by being apprehended — not only the cash, some $10,000, but the money he had invested in drugs. He must have known that in the event of an arrest his apartment would have been searched and his stash uncovered. All of which the Crown argued go to the issue of motive.
[4]Paragraph 7.
The defence written submissions addressed this particular statement in the following terms:
Such a concept is in essence an assertion that the accused is a drug trafficker. More particularly, there is no evidence at all that the accused had any vested interest in the heroin located in the apartment.
Such evidence is evidence of rank propensity and is an additional ground upon which the defence seek to rely to argue for its exclusion pursuant to ss 137 and 135 of the Evidence Act 2008.
It is noted that the prosecution have not served any “tendency” or “coincidence” notices in respect of any evidence it seeks to lead. Accordingly, it is assumed that in so far as the heroin is concerned, the prosecution only seek to rely on it in proof of its alleged motive.
In the same category as the heroin is the evidence relating to the location in the rear of the stolen utility a set of what is referred to as a ‘breakers kit’. It consisted of things such as bolt cutters, hacksaws, angle grinders and similar types of equipment.
The evidence before me in the depositions, relating to the finding of the heroin and the $5,000 in the en suite bathroom of the accused, is that after his arrest the premises were searched by police officers who located, secreted underneath a bathroom sink and hidden from view in a hollow spot between the bath and the basin, a bag containing 27 grams of heroin together with $5,000 in $50 notes secured with an elastic band. It was the en suite of the master bedroom, a bedroom occupied by the accused. There is a plan of the apartment in the materials and it was produced during the argument, and it demonstrated that to access the en suite bathroom from the living area a person would have to go from the living and dining room, to a room called a retreat, walk through that room into the bedroom of the accused, from the bedroom walk through the walk in wardrobe and finally into the en suite. An alternative means of access would be to walk down the hallway behind the kitchen to the main bedroom, walk through that bedroom, through the walk in robe and into the bathroom. There was another bathroom, located off that same hallway which ran from the living room down behind the kitchen wall, which was accessible prior to entering the main bedroom. That bathroom had a separate toilet.
As indicated the quantity of money in the possession of the accused was $5,000, that was located in his jeans pocket, together with a small bag of methylamphetamine. Both sums of money were $50 notes only, both sums of money were held by a rubber band.
The Crown submitted that they are part of the circumstantial evidence that needs to be considered when evaluating the motive of the accused to behave in this manner. He admits that he was in possession of two stolen motor vehicles which were located in the car park where this incident occurred.
The Crown submit that the accused may well seek to argue that the behaviour of a person pulling a firearm out and pointing it at police and trying to kill them would be highly improbable and unlikely for a person facing arrest for the theft of a couple of stolen motor vehicles. They submit that when one adds the drugs on his person, the cash on his person, the drugs in his bathroom, the cash in his bathroom and the possession of items that can be used to break into quite secure premises, being located in the stolen car, that in combination give him a much stronger motive to avoid being caught, in his mind, at all costs. That, the Crown submit when combined with the evidence of the concentration of methylamphetamine in his blood, and the evidence of Dr Sungaila of what a person with that level of concentration may do in terms of violence, aggression and reaction makes, in combination, a strong motivation for his alleged behaviour of pulling a firearm out from his clothing and pointing it at various police officers.
The defence, as far as it is able to ascertained from the defence response,[5] and matters referred to by counsel during discussions and argument, is:
[5]Exhibit 4 – para 11
a. That the security guard, who he was employing was unconnected in any way with the stolen motor vehicles, drugs, or the events of 12 November and, in fact, as far as he may have been in need of protection it was from ex-partners in business.
b. When the accused entered the car park area he had intended to go shopping.
c. He says he did not walk at all in the direction of the police officer Raab.
d. He disputes that:
i. he was shown any police identification by the officer Raab;
ii. he aimed the revolver at the head of any person;
iii. he attempted to fire the weapon;
iv. he intended to shoot the officer;
v. he remained in possession of the firearm;
vi. the revolver failed to discharge;
vii. at no time did he have the firearm pointed at the head of any other police officer;
viii. he ran towards the police officers, Parker and Rogers;
ix. he pointed the revolver towards either Parker or Rogers or both.
e. Further, by comments made by counsel for the accused during a final directions hearing, it is apparent that the accused admits he was in possession of the firearm, that he removed the firearm from his clothing as he was running away, and will argue that, upon removing the firearm, he threw it away and did not turn and point it at any police officer at any stage and that subsequent to having thrown the gun away he was shot.
These are the instructions that Ms Randazzo said she had received from the accused and the basis upon which the trial would be contested. Ms Randazzo’s arguments are twofold in relation to the admissibility of the heroin. Firstly, that no jury could be satisfied that in fact the heroin was in his possession and, secondly, that a jury could not use it in any manner other than in a prejudicial manner, that is, by assuming he is a drug dealer, and inferring from that fact that he is the sort of person that would in fact commit an offence or offences of this nature.
It was submitted that because Jason Phong was also residing in the apartment and, as I understand it, also Jayme Broom, she submitted that each of those persons could in fact have had access to the en suite bathroom of the accused and placed or hidden the heroin in that position. Further, it was argued that the night before this incident a number of other persons were present at the apartment and could have had access to the en suite bathroom of the accused and placed or secreted the heroin and the $5,000 in that position. It was, it was submitted, not a strong enough inference that the money and drugs were his.
It was however conceded by the defence that in fact the money was capable of being led going to the issue of motive, but it was argued, not the heroin. It is difficult to distinguish between the two items as they were found hidden together. The likelihood of someone separately and unknowingly placing $5,000 in this particular hidden spot between the bath and the basin and another separate person independently placing 27 grams of heroin in that same spot is so remote as to become far-fetched. It was in the en suite bathroom attached to the bedroom of the accused, the money was in a form identical to that in the possession of the accused, in his jeans pocket, and it would be an entirely reasonable inference for a jury to determine that the money and the drugs were in the possession of the accused for these purposes.
There are directions that can be given to a jury as to the proper purpose and use that can be made of the finding of the heroin in this position, those same directions will need to be given in respect of the possession of the money and the drugs on his person, as well as the relevance of his theft of the motor vehicles. Equally, if found admissible the same direction would be required for the possession of the ‘breaker’s kit’ in the back of the stolen utility.
The question is whether such a direction can cure any unfair prejudice which may arise in respect of the accused and the view a jury may take of him as the result of other demonstrated criminality, and suspected criminality.
The written submissions relying upon the decisions of the court in Velkoski and Rapson were, upon enquiry, disavowed as having any relevance to the decisions I have to make in this case, and further written submissions were received this morning from Ms Randazzo, to which the Crown have not had an opportunity to reply.
Ms Randazzo in those submissions argues that the evidence is in the nature of tendency/propensity evidence, in that she submits that there exists a real danger that the jury will treat it (the heroin in the en suite) as evidence that the accused is a drug dealer, and thus more likely to have aimed the gun at Raab, and other police officers. It was submitted that the evidence is akin to uncharged sexual acts or context/relationship evidence, and relied upon a decision of the court in respect of ‘uncharged acts’.[6] The decision stated that the court should ordinarily assume that there is a real risk of a jury using uncharged acts as a sufficiently important step to warrant a particular mention by the judge, to the effect that they ought not conclude from such evidence that the accused had a sexual interest in the complainant unless satisfied beyond a reasonable doubt. Ms Randazzo submitted that what follows from that statement by the court, is that where, despite the stated purpose for which evidence is sought to be led or relied upon, where there exists a danger, or might exist a danger, that the jury will treat evidence as (here) tendency/propensity type of evidence, the evidence should not be admitted.
[6]The Queen v Sadler (2008) 20 VR 69 at 89
The argument by the defence, as I follow it, is that the jury will be unable to dismiss from their minds the prospect that the accused may be a heroin trafficker and from that will be prejudiced against him to such a level that they will be unable to bring a fair and appropriate mind to the task at hand, that is, the task of determining if, having produced the firearm, the accused pointed it in the direction of police officer Raab, whether he pulled the trigger, whether he intended to kill police officer Raab, whether he pointed the firearm at two other police officers or whether they have a doubt as to any of those aspects or matters or a doubt that he may in fact after producing the gun have merely thrown it away or discarded it.
The evidence before this jury is that, on any version of the events, the accused man was found with $5,000 cash on his person, another $5,000 cash in his bathroom, a quantity of methylamphetamine in his pocket, a significant amount of methylamphetamine in his blood, and a loaded firearm in his possession, as well as two expensive recently stolen motor vehicles, all matters that may adversely reflect on the involvement of the accused in criminal behaviour.
A jury that is intellectually capable of dealing with that material is equally intellectually capable of dealing with the addition of the possession of a breaker’s kit in the motor vehicle and heroin in the bathroom along with the $5,000. It is of course going to require careful direction to ensure that the jury understand exactly what it is they cannot do with evidence of that nature and what they can do with evidence of that type. But there are directions that in my view will cover that material, directions that will be necessary to be given in respect of the other demonstrable criminality and suspicious behaviour.
In relation to s 137 of the Evidence Act, I do not believe that the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused and equally, in respect of s 135 of the Evidence Act, I do not find that the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial.
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