R v Crupi (Ruling No 3)
[2020] VSC 783
•20 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0245
| THE QUEEN | Crown |
| v | |
| VINCENZO CRUPI | Accused |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 November 2020 |
DATE OF RULING: | 20 November 2020 |
DATE OF REASONS | 24 November 2020 |
CASE MAY BE CITED AS: | R v Crupi (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 783 |
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CRIMINAL LAW — Offence — Murder — Identity of shooter in dispute — Whether evidence that the accused set fire to the deceased’s restaurant approximately 7 weeks before shooting admissible — Prosecution rely on impugned evidence as evidence of motive to kill — Other evidence of the accused’s animosity towards the deceased available to the prosecution — Whether impugned evidence relevant — Whether probative value outweighed by risk of unfair prejudice – Evidence Act 2008 (Vic) ss 55, 137 — Jury Directions Act 2015 (Vic) s 29.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson QC with Mr J McWilliams | Office of Public Prosecutions |
| For the Accused | Mr D Dann QC with Mr L Richter | Stary Norton Halphen |
HIS HONOUR:
Background
On 20 November 2020, I ruled that evidence relied on by the prosecution (‘P’) to prove that, on 23 January 2016, the accused Vincenzo Crupi (‘D’) set fire to the Gelobar restaurant part owned by the deceased Joseph Acquaro (‘V’), is admissible in D’s trial for murdering V. I gave brief oral reasons for my ruling at the time, indicating that I would provide more detailed written reasons later, which I do now. All references to sections and parts are to the Evidence Act 2008 (Vic), unless otherwise indicated.
The central issue in the trial is identity — whether D was the person who shot and killed V in the early hours of 15 March 2016 as he was leaving the Gelobar. P relies on evidence that D lit the fire, and other evidence referred to below, as evidence of D’s intense animosity towards V, giving him a motive to kill V.
Chronology
A brief chronology is appropriate.
In November and December 2015, D did renovation works for V at the Gelobar.
According to D, he received payments totalling $3,700 for the work done[1] when he thought he was deserving of over $9,000 for the work (37 days at $250 per day).[2] There is evidence from several sources, including D’s son, that D considered V had underpaid him for his work at the Gelobar.
[1]Mainly as a labourer.
[2]See D’s recorded police interview on 18 March 2016.
On or about 22 December 2015, V told D his services were no longer required at the Gelobar.
On the 23 January 2016, there was a fire at the Gelobar which was deliberately lit. CCTV footage captured a Holden Rodeo, similar to one owned by D,[3] pulling up near the Gelobar at approximately 1:48am and the occupant entering the Gelobar several times prior to the fire commencing.
[3]Obviously, the registration number of the Holden Rodeo was not able to be made out in the CCTV footage.
On the morning of 11 March 2016, D was interviewed at Fawkner Police Station about the arson. He denied responsibility, claiming he was home in bed at the time of the fire. He also claimed to have been content with the money V paid him for his renovation work at the Gelobar.
Evidence that D committed the arson
To establish that D committed the arson, P places particular reliance on CCTV footage from 23 January 2016. The Summary of Prosecution Opening (SPO) relevantly states:[4]
[4]Summary of Prosecution Opening dated 20 January 2020, 2–4.
The Accused owned a distinctive 1999 Holden Rodeo LX Utility. It was registered RDS057. It was a light-coloured single cab chassis utility. Paul Rankin a specialist engineer at General Motors Holden Ltd sets out (p630) characteristics of a vehicle depicted in CCTV footage in and around the Gelobar and St Phillip Street areas on various specific dates, [including] 23 January 2016 ... Mr Rankin opines that the vehicle depicted in the CCTV footage is a Holden Rodeo.
Mr Rankin expresses the opinion that the vehicle depicted in the various CCTV footage clips had the following characteristics which the Crown says are consistent with the Accused’s vehicle:
i) Single cab pick-up, light in colour
ii)Metal tray on the rear with a coloured stripe down the side
iii) Black door handles not body coloured handles
iv) Bull Bar
v)External side rear view mirrors are black not body-coloured
vi) Rear tow bar support structure
vii)Height of the rear lights is placed at the lower edge of the rear tray of the ute
viii)A vertical structure behind the B pillar on the forward end of the rear tray
ix)A rear guard or mudflap behind the left hand side rear wheel
x)The absence of lines, scoop or vent features on the engine hood
xi) Front bucket seats not bench seats
xii) Spoke pattern wheels, not a solid steel wheel.
The CCTV footage taken in St Phillip Street in the early hours of the morning of 23 January 2016, just before a suspicious fire occurred at the Gelobar (“the Arson”), show a Holden Rodeo with a most distinctive upright bracket attached to the rear of the tray of the Utility (referred to as a ‘ladder rack’; being two vertical posts with a horizontal post on the rear of the tray). The vehicle appears to approach the roller door area of the Gelobar in St Phillip Street before reversing out five minutes later. A half an hour later the vehicle can again be seen in the area of St Phillip Street.
The Accused’s vehicle was photographed by police on the 11 March 2016 as part of their investigation into the Arson. The Accused’s vehicle at that point in time, did not have a ladder rack. However, it did have steel housings/footings to the rear of the tray which specifically enabled a ladder rack to be fitted/inserted. (see photobook 6 photo No. 18 & 19).
Mr Rankin states (p640) that GM Holden did not offer for sale a genuine accessory rear tray for single cab chassis vehicles. The vehicles would have been provided to dealerships for sale as a cab chassis with no rear tray fitted. As a result, dealerships or customers themselves would have been required to order an after-market non-genuine rear tray. It follows that the ladder rack and its housing would similarly have been an after-market addition rather than a standard accessory. The Crown says the effect of this evidence is that the ladder rack housings on the after-market tray of a single cab chassis, is less common, which in turn adds support to the allegation that the Accused was responsible for the Arson.
Other evidence of D’s animosity towards V
The evidence of D’s animosity towards V is not limited to evidence that he lit the fire on 23 January 2016. The evidence of animus is conveniently summarised in the following passage of the SPO:[5]
[5]The passage quoted is taken from the Executive Summary in the SPO (ie pages 1–7). There are other passages in the SPO which expand on the passage quoted, but it suffices for present purposes.
Relationship Evidence/Animus towards the Deceased
The Accused harboured a grievance towards the Deceased.
This grievance had developed following what the Accused believed to be an underpayment of monies for renovation works he’d performed in late 2015 at the Gelobar.
In November & December 2015, the Accused performed certain work for the Deceased relating to renovations at the deceased’s place of employment. The Deceased part-owned the ‘Gelobar’ café at 74 Lygon Street East Brunswick. The renovations involved installation of new toilets, re-tiling of the pastry kitchen and development of a new upstairs function room. Whilst the Deceased paid the Accused an amount of money for his time and labour, the Accused claimed it was insufficient recompense for his time and effort. The Accused described himself as “working like a slave” at the Gelobar. There is evidence that:
i) The Accused asked the deceased for more money.
ii)The Deceased made comments to others that the Accused kept asking him for money for the work he had performed at the Gelobar.
iii)The Accused made comments to others that he was owed money for work he had performed at the Gelobar.
iv)The Accused committed the arson at the Gelobar premises on 23 January 2016, causing extensive fire damage to the upstairs of the premises.
This aforementioned grievance continued and was compounded by two further matters:
v)an assault committed by the Deceased upon the Accused on the 27 January 2016. This assault was inflicted due to the Deceased’s belief, having viewed relevant CCTV footage taken on the 23 January 2016, that the Accused was responsible for the Arson. The fall-out from this assault and the accusation by the Deceased as to the accused having committed the Arson, caused the Accused shame and embarrassment within the local Italian community. The Deceased’s accusation had brought cultural shame upon the Accused within his community.
vi)the arrest and execution of a search warrant and interview by police on the 11 March 2016 in relation to the offence of Arson committed by the Accused on 23 January 2016 (footnotes omitted).
Submissions
D’s submissions
D made written[6] and oral submissions.
[6]D’s written submissions dated 6 November 2020.
Pt 3.1
In written submissions, D submitted that the evidence that D lit the fire was irrelevant (s 55).[7] D emphasised that there was other evidence of animus available to P, making evidence that D lit the fire ‘superfluous’.
[7]D’s written submissions dated 6 November 2020, especially at [17]–[18].
However, in the course of discussion, D conceded[8] it would be open to a jury to find that D lit the Gelobar fire. In my view, that concession was appropriately made, bearing in mind that uncharged acts do not have to be proved beyond reasonable doubt.[9]
[8]Transcript, 20 November 2020, 13.
[9]Jury Directions Act 2015 s 61.
Further, D eventually conceded that if the jury found that he lit the fire, such a finding would be relevant insofar as it would reveal intense antipathy on D’s part towards V:
HIS HONOUR: … It seems to me that there's a legitimate path of reasoning based on a finding that he lit the fire, but there's also the danger of an illegitimate path of reasoning which you've been highlighting and then it becomes a question of whether [the] danger of unfair prejudice outweighs probative value.
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MR DANN: … I accept … we perhaps overstated it in the submissions and I perhaps overstated it at the start … whether he lit the fire can have relevance, it's … the danger associated with that line of reasoning … on the s 137 exercise … We don't maintain that it's just irrelevant.[10]
[10]Transcript, 20 November 2020, 8–9.
Pt 3.11
The ‘line of reasoning’ which concerned D was rank propensity reasoning. D put it this way in his written submissions:[11]
[11]D’s written submissions dated 6 November 2020, 6.
29.The evidence that connects the accused to starting the fire is prejudicial in and of itself because it creates a real danger that the jury would misuse the evidence to employ a form of propensity, or temperament, reasoning. In other words to reason thus:
a.The accused had a dispute with the deceased over money;
b.The accused sought to burn down the deceased’s business in response;
c.The accused was the sort of person who, when he has a dispute like this, would resort to arson as an act of revenge or in the prosecution of the dispute; and
d.The sort of person who is prepared to resort to arson over a modest financial dispute is the sort of person who is more likely to commit murder over some dispute.
D submitted that the danger of this line of reasoning could not be eliminated by directions and that the risk of unfair prejudice to D outweighed the probative value of the evidence that D lit the fire (s 137). It was submitted that the probative value of the evidence was not high given there was other evidence which P could legitimately rely on as proof of D’s animosity towards V.[12]
[12]To my mind, this submission conflates the ‘probative value’ of the evidence with the ‘importance’ of the evidence. The importance of evidence is assessed having regard to whether there is other evidence available in respect of the relevant element of the charged offence. Evidence may be important because it is the only evidence of a particular element but may be of low probative value. Likewise, evidence may be of high probative value but not be important because there is an abundance of cogent evidence in respect of the relevant element of the charged offence.
P’s submissions
P also made written[13] and oral submissions.
[13]P’s written submissions dated 13 November 2020.
Pt 3.1
P submitted that:
… evidence led to demonstrate the escalating nature of the enmity or animus is relevant in order to present all the evidence to the jury in its full and proper context. A jury may arguably find unconvincing, the suggestion that a dispute over a relatively small amount of money in December 2015 would lead to murder in March 2016. However, seen in its full context, it’s alleged that the murder occurred as the result of the culmination of an escalating series of events. Each separate event evidences an increasing depth and intensity of the animus held by the accused towards the deceased. That those events included damage by fire of the deceased’s business, evidences the depth or intensity of that animus (footnotes omitted).[14]
[14]P’s written submissions dated 13 November 2020, 1–2.
Pt 3.11
P submitted that any danger of unfair prejudice could be cured by an anti-propensity direction given in accordance with s 29 of the Jury Directions Act 2015 (Vic).
Analysis
Pt 3.1
A finding that D lit the fire would be cogent evidence of severe animosity on the part of D towards V at a time reasonably proximate to the shooting of V. As D conceded, such a finding would be open to the jury. The impugned evidence is consequently capable of being rationally viewed as evidence of a motive to kill and therefore passes the test of relevance (s 55).
Pt 3.11
I consider that the probative value of the evidence is high. The fact that there is other evidence of animus does not diminish the probative value of the impugned evidence, which has the capacity to provide the jury with greater insight into the depths of D’s feelings about V. Actions speak louder than words. That is especially so of extreme actions such as arson.
The danger of rank propensity reasoning can be ameliorated if not eliminated by a direction in accordance with s 29 of the Jury Directions Act 2015 (Vic). Assisted by such a direction, the jury can reasonably be expected to discriminate between legitimate reasoning (if D lit the fire, he harboured intense hostility for V at a time proximate to the shooting and thus had a motive to kill him) and illegitimate reasoning (D is an arsonist and therefore the kind of person who would commit murder).[15]
[15]In my view, the risk of illegitimate reasoning by the jury is also reduced by the fact that the uncharged act is not an offence of physical violence against another person.
Consequently, the impugned evidence has probative value which is not outweighed by the danger of unfair prejudice (s 137).
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