R v Courtney, Gary William and Lomas, Jeffrey Joseph and Duggan, John Frederick (No 2)

[1998] TASSC 166

166/1998

PARTIES:  R
  v
  COURTNEY, Gary William

LOMAS, Jeffrey Joseph

DUGGAN, John Frederick

(No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  177/1998
DELIVERED:  23 December 1998
HEARING DATE/S:  13 December 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Crown:  D G Coates with M P Bugg
           Accused Courtney:  J W Avery (leave given to withdraw)
           Accused Lomas:  W M Hodgman QC
           Accused Duggan:  K B Procter
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused Courtney:  Avery Keal
           Accused Lomas:  Milton and Meyer

Accused Duggan:  Murdoch Clarke

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  166/1998
Number of pages:  4

Serial No 166/1998
File No 177/1998

THE QUEEN v GARY WILLIAM COURTNEY,
JEFFREY JOSEPH LOMAS and
JOHN FREDERICK DUGGAN (No 2)

REASONS FOR JUDGMENT  UNDERWOOD J

23 December 1998

The accused Duggan is one of three co-accused, each charged with the murder of Leo Rogers shortly prior to 11pm on 6 May 1995.

The Crown case is that the three accused, or at least the accused Courtney and the accused Duggan, harboured a hatred of persons who sexually assaulted children and in the belief that the deceased was such a person and whilst affected by drugs and/or liquor, the three accused went to the home of the deceased and there killed him with a frenzy of stab wounds.

Police officers interviewed the accused Duggan on six occasions.  During the course of a video recorded interview on 6 June 1997, the police asked the accused Duggan some questions concerning his attitude towards persons who sexually assault children.

Counsel for the accused Duggan, Mr Procter, has submitted that some, if not all, of this evidence should be excluded because it discloses a propensity to commit crimes of violence.  During the course of the submissions, Mr Coates, senior counsel for the Crown, agreed to edit from the interview any direct reference to the accused Duggan having been in prison.  The remaining portion of the interview to which exception is taken is set out below.  Just before this portion, the police officer, Inspector Little (CL), asked the accused Duggan (JD) questions about what the three accused were discussing in the hours they were together shortly before the murder was committed.  The accused Duggan told Inspector Little that the conversation turned to one Jed Thurley, who had been sentenced to a term of imprisonment the day before the murder for sexual offences perpetrated upon a son of the accused Courtney.  The interview continued as follows:

"CL:Was there any discussion about um, um, Gary's son being interfered with?

JD:Only for a little bit he asked me a couple of question.  He thought I might be able to fix him up in jail.

CL:Fix up who?

JD:Who ever the blokes name I can't Jed or what ever his name is.

CL:The fellow that um, interfered with Gary's boy was named Jed Thurley does that ring a bell?

JD:Yeah well that might be it Jed yeah I knew it was something like that anyway.

CL:So Gary asked you if you could fix him up.

JD:No, just went and visited somebody and asked him for a favour and he said righto it's already done thanks a lot he said we didn't know but we do now.

JD:So I just went and visited a bloke that was a hard man, Jarvis, Rodney Jarvis.  I said Jarvo can you do me a favour rah, rah, rah he said, sweet done already.  He'd been lying to em telling em he was in there for drunk and disorderly.  Said he only copped eighteen months or something.

CL:Right so you did that you went and visited Jarvis in jail.

JD:Yeah.

CL:As a result of what Gary said to you this night.

JD:Yeah no not this time this is before then though.

CL:This is before.

JD:Yeah.

CL:The night of the murder.

JD:Yeah.

CL:Right but on the night of the murder it was brought up again.

JD:Yeah he asked me if I done anything and I said yes it's done.

CL:He asked you if you'd been if you'd done anything.

JD:Yeah.

CL:And you said like you had.

JD:Yeah, it's done they were giving him a hard time torment shit out of them, make em spend the majority of their time in the yard simple as that.

CL:Did you know whether he, he, he'd get um, touched up at all a flogging.

JD:Oh I reckon so I can't put money on it I reckon so they would of put him in a yard where you can't get at him, either the yard or the hospital.

CL:What, what did Gary offer you any money or anything to make sure that he was fixed up.

JD:No I wouldn't of took it anyway.

CL:You just done it as a favour.

JD:More or less yeah well people like that deserve to do jail hard."

Mr Procter submitted that insofar as that part of the video taped interview disclosed a propensity on the part of the accused Duggan to instigate persons in prison to assault child molesters, it should be excluded.  Mr Coates submitted that the impugned part of the interview established that the accused hated child sex offenders and upon proof by other evidence that he believed that the deceased was such a person, its probative value as evidence of motive is so high it should not be excluded.

Evidence of motive is circumstantial evidence admissible upon the trial of the accused.  In R v Murphy (1985) 4 NSWR 42, the court held, at 59, that evidence is always relevant which tends to show that the accused had a motive for doing the act charged and that motive was more than a matter which may explain an accused's conduct; "it is a fact directed to proof of the accused's guilt" (60).

As the evidence is admissible as a matter of law, the issue is whether it should be excluded upon the basis that its probative force exceeds its prejudicial value in accordance with the general principles established in Makin v Attorney-General (NSW) [1894] AC 57 and R v Boardman [1975] AC 421.

The Crown does not seek to adduce this evidence as so called "similar fact evidence" in the sense that proof that the accused Duggan has incited others to assault those who perpetrate sexual crimes against children tends to prove that he committed the crime charged.  The Crown seeks to adduce this evidence to show the accused Duggan's state of mind with respect to such offenders and hence the existence of a motive for committing the crime.  See, eg, Mackie v R (1973) 57 Cr App R 453 et seq.  However, the evidence does, in fact, tend to prove that the accused has in the past instigated another to perpetrate violence upon sex offenders as, according to the Crown, was done to the deceased in this case.  So the prejudicial value of this evidence is high. 

The principles applicable to the admission of propensity evidence have been considered by the High Court on many occasions in recent years.  See, eg, Sutton v R (1984) 152 CLR 528; Hoch v R (1988) 165 CLR 292. It is not sought to justify the admission of this evidence upon the basis that it bears a striking similarity to the facts which give rise to the crime charged. However, as it is propensity evidence in order to avoid discretionary exclusion, the evidence must possess a particular probative value or cogency such that it bears no other reasonable explanation other than the inculpation of the accused Duggan in the crime charged. Another approach to this issue is to enquire whether the evidence has a relevance beyond the propensity to instigate others to assault those who sexually assault children. See Harriman v R (1989) 167 CLR 590 at 597 - 598. The most recent exposition on this subject is Pfennig v R (1995) 182 CLR 461. With respect to the issue of measuring the probative force of propensity evidence, Mason CJ, Deane and Dawson JJ said at 482:

"Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such.  But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.  Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case.  Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.  And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."

The joint judgment then expressed the view that the above principles derived from Hoch (supra) and "correctly state the law with respect to the admissibility of similar fact evidence".

With respect to evidence that is the subject of this application, not being similar fact evidence adduced to establish an essential element in the crime charged, the joint judgment said at 483:

"There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence.  The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases.  Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial.  On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case." 

The evidence under present consideration is evidence of a particular distinctive propensity, even though the Crown only seek to adduce it to prove motive or a state of mind.  Does the probative value of that evidence exceed its prejudicial effect?  With respect to this, the joint judgment instructed at 483 - 484:

"But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused." 

My tentative view is that prima facie, portions of the impugned evidence lack the requisite probative force to overcome the operation of the exclusionary rule.  However, after considerable deliberation I have decided to postpone ruling on its admissibility at this stage.  Mr Coates submitted that the evidence was important and cogent, particularly when regard is had to other evidence that will be led on the trial against the accused Duggan.  Therein lies the problem.  The Crown intend to adduce evidence from more than one hundred witnesses over an estimated three months of trial.  This ruling is sought at a hearing held before the jury has been sworn and at this stage I am unfamiliar, except in a very general way, with the proposed Crown evidence.  I was not directed to the relevant parts of it by counsel.  This is not a criticism of counsel.  The application to exclude the evidence was made at the very end of a long day during the course of which many rulings were made upon the admissibility of evidence in the various records of interview between the accused Duggan and the police.  It was the fourth non-consecutive day prior to the jury being sworn that has been occupied by rulings on admissibility of evidence.  In retrospect, it appears to me that insufficient consideration was given to the impugned evidence and its relationship with other evidence that is to be led by the Crown.  In these circumstances it seems to me undesirable to make what might be an important ruling on the admissibility of evidence without the benefit of further, detailed submissions from counsel.  Although this may cause some inconvenience with respect to any editing that may have to be done to the video tape, it is appropriate to decline to exercise the discretion conferred by the Code, s361A until after much of the other evidence has been adduced.  The principles applicable to the resolution of this issue have been set out in order to facilitate its determination in due course.

A ruling on the admissibility of the challenged parts of the interview of the accused Duggan by police is deferred until after the commencement of the trial.