R v Croxford
[2009] VSC 517
•21 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WODONGA
CRIMINAL DIVISION
No. 1406 of 2009
| THE QUEEN | |
| v | |
| RONALD CROXFORD | Accused |
| and | |
| RICKY DOUBLEDAY |
Ruling No 1
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JUDGE: | COGHLAN J | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 21 July 2009 | |
DATE OF RULING: | 21 July 2009 | |
CASE MAY BE CITED AS: | R v Croxford & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 517 | |
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CRIMINAL LAW – Murder – Co-Accused – Application for separate trials – Inadmissible portions of record of interview – Self Defence – Exercise of discretion to exclude on the basis prejudicial effect outweighs probative value – Jury directions in relation to cross admissibility – Jury directions in relation to out of court utterances – R v Lam & Ors [2004] VSC 419 – R v Ditroia & Tucci [1981] VR 247 – Jones & Waghorn v R (1991) 55 A Crim R 159.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Accused Croxford | Mr G. Georgiou | Mario Vaccaro |
| For the Accused Doubleday | Mr G. Meredith | Kerry Clancy |
HIS HONOUR:
Mr Meredith, counsel appearing for the accused Doubleday, made application for a separate trial based upon the risk his client may receive an unfair trial resulting from evidence adduced in the case of his co-accused Croxford.
That evidence can be stated briefly. Relevantly, in his record of interview the co-accused Croxford said to the police: [1]
[1] See record of interview Q&A 20-27
QYep.
AI didn’t kill him. Just that he had a knife and when I seen – seen the knife when we were out the front of the Biralee, I then threw a punch at him and I don’t even – I don’t even know if that punch hit or not. I was just worried when I saw the knife, it just brought back a lot of things. A mate of mine was – a mate of mine’s younger brother was stabbed here in town just down the road from there about 4 years ago, to death, and I was just worried about Rick and when I threw that punch, I thought, ‘Shit, I’m in – I’m in trouble now.’ So I wanted – I wanted to get the knife and I wanted – wanted him to just throw the knife away so I could get – I was going to get the knife and give it to ‘em at the Bira or give it to the cops and have him charged. He’s the one with the knife. That was my – that was my full intention, just drop the knife, mate, leave it here, drop it and it would’ve been fine, everything was fine.
QAre you able to tell us how all this came about?
AI don’t really know. I know Rick – Rick was talkin’ to him at one stage and then I was – I was away from him at the time and when I’ve walked over is when I’ve seen the knife and told him to drop it and I went to hit – I’m not sure if I did connect or not.
QAlright. And what basically happened after that?
AWell, he got hit and I didn’t do it – I didn’t kill him.
QAnd what were the circumstances about him being hit?
AHe ran at – ran at me with the knife. I – I hit him as he come at – come at me probably from about here to the wall, he would’ve been when I hit him with a bit of wood, like a garden stake and – yeah. He – he stopped – that stopped him. I’ve hit him either around the – around this area, high up on the body and that was it. I didn’t – I didn’t hit him again and then someone else hit him and hit him hard and I grabbed them and told them to stop.
QAlright.
AAnd – yeah. It was – it was too hard. It was fuckin’ crazy. It was – there was no need for that. There wasn’t any need for that, fuckin’.
QAfter you’ve – after you’ve hit him with the – the stake ‑ ‑ ‑?
AYep.
QWhat did you do?
AI – I stood back, I didn’t do anything after that. I mean, I didn’t do anything after that because, I mean, yeah, he – he you know, he wasn’t – wasn’t goin’ at me any more, you know, I didn’t see any reason to – for any – any more of it. Like, the threat was over. I mean, he – he was – he was on one knee and – and – yeah. My mate .....
QAlright. What did you – what did you do with your stake, the stake you had?
AI’m not sure. Rick took off, I followed him and said, “What did you fuckin’ do that for?” I said, “We’ve got to back and look after him. We’ve got to go and see if he’s alright.” He goes, “No, let’s just go.” I said, “No.’ I said, “We’ve got to fuckin’ see if he’s alright, mate, come on.” And we started walkin’ back to where he was and a police car pulled up behind us and a police car pulled up where he was and – and then – yeah, that – that was it then, they put us in – put us in the car.
That version of events is, at least to a substantial degree, confirmed by the evidence of the witness Brenton Lee McNicol who, in a statement made at the time of these events, said:
The girls screaming sounded like ‘stop, stop’ but it was just mixed in with the screaming. It was definitely female screaming. This noise was coming from behind my house in the car park area of the leisure centre.
A little bit after I heard the girls screaming I heard a male voice yell out ‘no Mick no’ and then I heard ‘let’s go’. I could also hear sounds like fighting.
I would describe the tone of the voice as panicky. It sounded like the male yelling wanted to get away.
I saw two guys ran past my house. They both ran from the Leisure Centre car park through the walkway that crosses Simmons Court.
McNicol was cross-examined at the committal,[2] but there is nothing in that cross-examination which takes the issue further.
[2] See page 185-191 depositions.
It was submitted by counsel that both segments of evidence, taken together, were strongly prejudicial to the position of his client Doubleday, despite the segments of the co-accused’s record of interview being inadmissible. The argument was advanced on the basis that the culmination of such evidence tended to undermine his client's expressed offence, namely - self defence.
In considering that proposition, it is necessary to examine the content of the record of interview of the accused Doubleday:[3]
[3] See Doubleday ROI Q&A 69, 70 & 71 (deps), Q&A 40, 41 & 42 (trial).
QSimply, Ricky, in relation to this incident, can you tell us what happened?
AI’ll tell you exactly what happened. I was just waitin’ outside the Bira, there was probably 10 people around, you know, just waitin’ for taxis or whatever. Mr Winter, I guess his name is – I don’t know for what reason, I think there was a couple of ladies there that he might have been sort of interested in or something and I ended up talking to them and I do not know why, but he pulled this knife out. Like there was no – you know, like nothing towards him, nothing to start it off. It was just like sort of an – an intimidation attempt, you know. Like, “Fuck off,” sort of thing, you know, and I sort of stepped back and that and sort of won‑, and still in shock about it all and my friend that I was with for the night, Ronald, bloody he ended up seein’ the guy pull the knife on me and wasn’t very impressed with it at all, so them two ended up getting into a bit of an argument and that and it sort of started gettin’ pretty heated over the knife and that. Croey was tellin’ him to put the knife down and put it away and whatever and he wouldn’t and so them two just kept arguin’ where it started – it started at the front of the Bira and them two had been arguin’ all the way along the front and still arguin’ walking up towards the leisure centre and I was tryin’ to break it up the whole time. Like I told my mate, you know, “Forget it. Don’t worry about it,” but it was obviously too far gone by then. I tried breaking them up several times, you know. Just – just trying to split ‘em up. Then they kept walkin’ up the road and I could just see ‘em still arguin’. I think – I don’t know, I just – I was worried about my mate and the knife and I just picked up a garden stake or somethin’ out of a bush and proceeded up the road to help my mate. Just – I was fearin’ for my life and his at that time, as you could imagine. I walked up to ‘em, they – they – they were stopped by then. They were still arguin’ pretty much about the fight and I got up close enough to see him with the knife in his hand which I suspected he had which was why I grabbed the bloody stick and I got up to ‘em and there was prob’ly a good 2 metres between them two arguin’. I stood next to my mate, it all got too much for Mr Winter and he – he come towards us with the knife. I – I had to hit him with the stick. Otherwise it would’ve been me that was fuckin’ cut up, dead. It was just self defence.
QAnd what happened after that?
AHe – well, he was – he come towards me, I hit him. It sort of felt - like I sort of went for around here. I didn’t want to kill him, you know ..... just knock him over or somethin’ and sort of from my recollection, it’s hit him here, he’s fallen over still with the knife in his hand and I sort of remember sittin’ there with it watchin’ and watchin’ and like, “What’s he gonna do, what’s he gonna do?” And he started gettin’ back up with the knife still in his hand. I’m like, “Fuck. Fuck, I’m gonna have to knock him out,” you know. “I’ve gotta knock him out. How am I gonna get out of this?” So I’ve hit him once more and he went flat and he still had his hand on the knife by that stage and he still seemed – like not 100 per cent, but ..... ..... a long way from fuckin’ dead. He – he started to get up a little bit more slowly this time, but still I think he had the intention to fuckin’ stab us. He still had the knife in his hand. He got to his – he got almost to his feet and I just had to hit him again. He still had the knife in his hand and we were tellin’ him, “Drop the knife. Just drop the fuckin’ knife.” I don’t know why he was carryin’ the fuckin’ think around all night anyway. It would’ve never fuckin’ happened.
QAnd what happened then?
AThen I thought I had knocked him out. He was layin’ there, I threw the stick away and then I seen a bit of blood. I started to worry then and then that’s when my mate sort of – sort of maybe said that, you know, “He could be dead.” You know, “He mightn’t be knocked out. This guy could be dead.” So we sort of just walked back into Smurf – or whatever – that little bloody – Smurf Village we call it. All them little apartments there. And I was just sort of sittin’ there tryin’ to gather my thoughts with him and, you know, “What am I gonna do?” Then the next minute the cops were all over the joint, you know. It was all over before it begun.
And later[4]:
QSo what did Croey say?
A“Drop the knife.” And they started arguin’ and they started sort of walking – walkin’ around the front just arguin’ and arguin’, so I – I followed them two obviously. Like I was concerned for my mate. Like this fella’s got a knife and I’m not sure – they – they did get away for a little bit. Say like 30 – 20, 30 metres ahead of me there for a while after tryin’ to break ‘em up about 10 times. “Let’s just go. Stop it. Come on, let’s go,” and they wouldn’t and they kept fightin’ and they kept walkin’ up the road and that’s when they got further away from me and I’m like, “Fuck, he’s still got that knife out.” Because they’re pretty close to each other, I was fuckin’ fearin’ for my mate’s life. I pulled the stake out, I started walkin’ fairly quickly up towards him and by that time they had made a bit of distance between each other and it was just – just a stand off by then. I walked – I’ve walked up to my mate’s side to make sure he was alright. Nothin’ had happened then. And then I just remember him comin’ forward. I’m not sure if it was at me because we were fairly close to each other or if it was at Croey. It just – it seemed like he was comin’ at me and I remember swingin’ the pole. Not to kill him. Not even to fuckin’ hit him in the head, but just – just to knock the old cunt over. That’s all – I knew that’s all I needed to do, just – he was pissed. Just knock the stupid old cunt over, hopefully he hits his head and knocks himself out or somethin’, you know.
[4] See record of interview Q & A 116.
Such matters are sufficient to outline for these purposes, on the understanding they are not exhaustive of the matters set out in the record of interview. If it could be established in the prosecution case that the accused Doubleday had been told to stop before he delivered either the second or third blows, it would ground a more powerful case and would bring the accused’s defence of self defence into very sharp focus. It is arguable that the evidence of Mr McNicol is in fact admissible against both accused, see R v Benz & Murray.[5]
[5] (1989) 168 CLR 110.
Such evidence does however, have particular potency in the case against Mr Doubleday, it being open to the jury on that evidence to conclude that he was told to stop. It is not a matter which was put to Mr Doubleday in his interview, or otherwise adverted to by him or by the investigators. The difficulty lies in an inability to fix in time and possibly place, any identifiable chronology relating to the striking of the blows by Doubleday, or the order of them in relation to when the pertinent words were spoken. That being the case, I find it appropriate to exercise my discretion to exclude the abovementioned evidence in the case of Doubleday, as in the circumstances its prejudicial effect outweighs its probative value.
The principles relevant to the granting of separate trials are usefully set out in the ruling of Redlich J as he then was in R v Lam & Ors,[6] which is Ruling Number 1.
[6] [2004] VSC 419.
His Honour set out the general principles applicable at paragraph two, which I will repeat. He said this:
The interest of justice ordinarily requires that where a number of persons are charged with the murder of another and the Crown alleges that all were present at the time of the killing they should be tried together. This is particularly so where the alleged joint offenders seek to cast blame on other accused.
His Honour cites the authority of Webb and Hay v R[7] in the High Court.
[7] (1994) 181 CLR 41.
Administrative considerations such as those discussed in Demirok[8] and the need to avoid inconsistent verdicts, particularly where co-accused are seeking to cast blame on each other, has led to the principle that where accused are charged with committing a crime jointly prima facie there should be a joint trial, for which His Honour sets out the well known authorities of Demirok, Gibb & McKenzie,[9] Jones & Waghorn,[10] Heaney & Ors[11] and Webb and Hay.[12]
[8] R v Demirok [1976] VR 244.
[9] [1983] 2 VR 155.
[10] Jones & Waghorn v R (1991) 55 A Crim R 159.
[11] Heaney, Gillin, Randall & Randall v R [1992] VR 531.
[12] (1994) 181 CLR 41.
The power to order separate trials was not generally exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial for that other. Reference is made to Gibb and McKenzie.[13]
[13] [1983] 2 VR 155.
In Gibb & McKenzie the Full Court thought it would be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases related in inconsistent verdicts. In R v Spathis[14] Hayden JA, as he then was, and Carruthers and Smart AJA in a joint judgment referred to the need to balance fairness to all parties in these terms:
[14] [2001] NSWCCA 476.
In determining the practical content of the requirement that a criminal trial be fair regard must be had to the interests of the Crown acting on behalf of the community as well as the interests of the accused”.
Reference is there made to what was said by Dean J in Dietrich v R[15] in the High Court and what was said in Barton v R[16] in the High Court.
[15] (1992) 177 CLR 292 at 206.
[16] (1980) 147 CLR 75 at 101.
The policy considerations which favour a joint trial are discussed at length in R v Demirok and Jones & Waghorn v R. The factors present in those cases which led to the conclusion that there had been a miscarriage of justice are relied upon both, Sam Nguyen and Hongbui. The common factors present in both of these cases was potential prejudice following from inadmissible evidence which may have been improperly used by the jury in confirming the evidence of the principal Crown witness implicating the applicant.
In Jones & Waghorn, each member of the court considered that the co-accused's admissions against interest confirmatory of the principle Crown witness' account implicating the applicant must have weighed heavily against the applicant irrespective of the number of judicial warnings given to the jury.
Crockett J expressed the view that if only the factors in favour of a separate trial were those that were present in Demirok, he would not have been persuaded that a joint trial have led to a miscarriage. Crockett J regarded the inadmissible evidence of the co-accused's out of court statements referring to the applicant as a professional criminal who is disposed of violence and murder, as conclusive that the joint trial had been unfair. Whether a substantial prejudice to an accused arising from a joint trial as a consequence of the introduction of evidence admissible against the co-accused but inadmissible against the accused, an assessment is called for as to whether such prejudice is really amenable to nullification by judicial direction. That is a reference to the words used by Crockett J in Jones & Waghorn.
In Demirok it was said that where full directions were given explaining to the jury the use that could be made of the statements of the co-accused, such directions would normally prevent doubts arising that a miscarriage of justice might have occurred. Such directions had not been given by the trial judge in Jones & Waghorn. Crockett J in Jones & Waghorn, referred to Ditroia & Tucci and observed that even where the effectiveness of judicial warnings would be attended by real doubts, if it is not followed, an application for severance will be successful (that was a question of the court applying the appellate test).
In R v Iaria & Panozzo, Nettle J discussed some of the circumstances in which judicial directions to consider each accused's case separately may be ineffective. His Honour referred to one such circumstance in the following terms:
Where evidence irrelevant to any issue between the Crown and the accused is admissible against a co-accused, and as against the co-accused serves to corroborate or reinforce the evidence of an eyewitness against the co-accused, and as a result the jury would be likely to believe the eyewitness not only in what he or she may say against the co-accused, but also in what he or she may say as against the accused, at least where the Crown places heavy reliance upon the witness to implicate the accused and the evidence is open to serious challenge.
Those, of course, are not the circumstances of the present case. As the matter currently stands, the direction that will be necessarily be given to the jury is that none of the evidence that relates to the conversations overheard by the witness McNicol are admissible in the case of the accused Doubleday. Such a direction, accompanied by an additional direction going to the inadmissibility of out of court utterances by either accused as against the other, seem to me in the circumstances to be perfectly sufficient. There is little risk such a direction will be beyond the ability of the jury to understand and act upon.
The corroborative nature of the evidence of the witness McNicol, in relation to the evidence contained in the record of interview of the accused Croxford, brings to the fore a matter confined totally to his case. It may be dealt with by a simple and straightforward direction to the jury, and remains separate and distinct from the case of the co-accused Doubleday. I am on this basis satisfied in all the circumstances that the matter can adequately be dealt with by the appropriate direction.
That conclusion left us to consider the separate application of Mr Georgiou. Counsel’s application for a separate trial was based upon the possibility that his client's position may be prejudiced by what would occur should his co-accused choose to put his client’s character in evidence. Such a contingency could only realistically arise if Mr Croxford was to give evidence. Counsel relied upon the principle set out by the Court of Criminal Appeal in R v Ditroia & Tucci.[17]
[17] [1981] VR 247.
While accepting that risk may potentially arise, it is not possible to say how it might unwind in the course of this trial. In the way the cases are put in the respective records of interview, the contingency does not look probable. That is, that the accused Doubleday would seek to defend himself by placing the whole of the blame of what occurred upon the accused Croxford. It cannot be said that such a contingency could not occur, but if it does, it will fall to be dealt with when and if it arises.
One of the things that is absolutely clear in relation to the question of separate trials is that they are movable feats. R v Demirok, Jones & Waghorn v R. and R v Ditroia & Tucci are three very clear cases of what might occur as the trial progresses, as opposed to how the trial was capable of being viewed at its outset. It is for those reasons I would refuse that application also.
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