R v CURRAN - [2006] SASC 388

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v CURRAN
[2006] SASC 388
Reasons for Ruling of The Honourable Justice Vanstone
21 December 2006
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY
Accused charged with murder of acquaintance by cutting her throat in 2005 - prosecution tendering evidence of accused having killed his father and injured his mother in 1969 by cutting their throats - whether admissible. Held: evidence excluded.
Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 80 ALJR 537, applied.

R v CURRAN
[2006] SASC 388
Criminal
VANSTONE J:
Introduction

The accused is charged with having murdered Leila Marie Drapes at Prospect on 18 March 2005. In essence the prosecution case is that at about 11 o’clock on the night of Friday, 18 March 2005 the deceased was attacked by a man wielding a knife in Ballville Street, Prospect.
It is further alleged that immediately prior to the attack both the attacker and the deceased were in the vehicle at that time being used by the deceased, which vehicle had been proceeding along Ballville Street. The wounds sustained by the deceased were principally two lethal incision wounds to the neck, consistent with having been inflicted with a knife. Death ensued fairly quickly.
Eye-witnesses were unable to identify the assailant, but general descriptions of him suggested a man in his 40s, of medium height and build. That description is not inconsistent with the accused.
The prosecution alleges that shortly before the fatal confrontation the accused and the deceased were together, having coffee at Caffé Paesano, on the corner of O’Connell and Tynte Streets, North Adelaide. It is put that the two of them might have left that café as little as five or ten minutes prior to the stabbing. It is suggested that there was at least a degree of ill-feeling between them and that in recent weeks they had fallen out over drug dealings. The prosecution further relies in proof of its case on various items of circumstantial evidence including conduct and statements made by the accused in the day or so after the killing which, it alleges, evinces a consciousness of guilt.
Prior to the commencement of the trial, Mr C Kourakis QC, who appears with Mr S McDonald on instructions from the Director of Public Prosecutions, indicated that it was proposed to lead, as part of the prosecution case, that in 1969 the accused had killed his father and injured his mother by cutting their throats. It was said that such evidence amounted to propensity evidence and was admissible having regard to the test for admissibility of such evidence as most recently propounded by the High Court in Pfennig v The Queen (1995) 182 CLR 461 and Phillips v The Queen (2006) 80 ALJR 537.
By Rule 9 application dated 26 October 2006 the accused, by his solicitor, objected to such evidence being received on the basis that it was inadmissible.
Prior to the empanelment of the jury, I heard argument as to that matter by Mr Kourakis QC and by Mr M Griffin QC, who appears with Ms L Finnegan for the accused.
Argument proceeded on the basis of the depositions as supplemented by further material. In particular I received a bundle of documents, including statements relevant to the 1969 incident, which took place in Tasmania. Neither counsel suggested that it was necessary that I hear any evidence on the voir dire.
The principles
I have drawn the following statements of principle from the two most recent cases with an eye on the particular shape of the issues in the case before me.
Evidence of a particular distinctive propensity, demonstrated by acts constituting particular exemplifications of it, may be admitted, provided it possesses the requisite probative quality: Pfennig at 483; Phillips at [54]. It must raise the objective improbability of the charged event having occurred other than as alleged by the prosecution: Pfennig at 484. It must have a strong degree of probative force; a really material bearing on the issues to be decided: Phillips at [54]. If there is a rational view of the propensity evidence consistent with the innocence of the accused, it may not be admitted: Pfennig at 482-4.
It is not necessary to point to striking similarities or to an underlying unity between the propensity evidence and the charged event: Pfennig at 484. But there must be a “specific connection” or a “sufficient nexus” between the two bodies of evidence: Pfennig at 484-5; Phillips at [54]. I think that use of those expressions might be no more than an alternative means of illustrating the high degree of probative value required. Because without such a nexus it is hard to imagine how so demanding a test for admissibility could be met.
In this case that particular mode of expression seems to me to be instructive.
Analysis
Here there is no suggestion that the previous killing answers the description of similar fact evidence. Mr Kourakis QC relies simply on the fact that the earlier killing and the death of the victim in the current case were effected by, in each case, cutting the throat. He puts that killings by that method are relatively rare. In support of that submission he pointed to two statements. The first was that of Senior Constable Forrest who describes herself as a “field intelligence officer” stationed at the Major Crime Investigation Branch. Part of her duties are said to be the obtaining of crime data from the main South Australia Police data base. She retrieved information from that system identifying all murders occurring in South Australia over a period of six years commencing 1 January 2000. She analysed that material to establish which of those killings resulted from a cut or cuts to the victim’s throat. She arrived at six incidents. She provided the details of those. It appeared that a further two of those could probably be excluded for this purpose.
A further statement was provided by Ms Simpson, a forensic scientist from the pathology section of the Forensic Science Centre. She examined records of autopsies performed on bodies where there was evidence of stabbing or incised wounds to the neck or throat. Over the period of ten years commencing 1 November 1996 there were twenty-eight such cases. Ten of those could be excluded as being suicides. In a further case the manner of death remained undetermined. Of the seventeen remaining, eight were found to be due to injuries to the neck or throat alone.
In my view these statistics, particularly those provided by Ms Simpson, give general support to the submission of Mr Kourakis QC. On the other hand, it is not suggested that in the two incidents with which we are concerned there is any correspondence between the actual wounds to the throats – that is, the way in which they were inflicted – or the type of implement used.
Nor is it suggested in this case that there is any other parallel to be drawn between the circumstances of the 1969 event and the charge which the accused faces. The victim in the charge here under consideration was not in any sort of domestic relationship with the accused. Nor can the prosecution point to any particular motive for the killing, apart from suggesting that the accused and the victim were not on particularly good terms owing to disputes arising from drug dealings. Then, whilst the accused’s father was attacked as he lay in his bed, here the attack seems to have started in the motor vehicle of the deceased as it travelled along the highway, and finished on the roadway not far from that car.
Mr Griffin QC points to other difficulties standing in the way of the prosecution argument. He observes that the time span between the killing of the accused’s father and the victim’s death is exceptionally long. In that period the accused has progressed from adolescence to middle age. There is a further complication that he was never convicted of the murder of his father. He was found not guilty by reason of insanity. (There is no such plea of mental incompetence in the current trial.) I am not so convinced by the argument of Mr Kourakis QC that this distinction is of no consequence.
There is a further dissimilarity. Whereas in the 1969 incident it seems clear that the accused took a knife into his parents’ bedroom and with it attacked his sleeping father, here it is not apparent that there was the same degree of premeditation. True it is that the prosecution points to the accused having arranged the meeting with the victim by calls made from a public telephone box in circumstances where it appears his mobile telephone was available to him, but the scene of the incident does not present as one which would be selected by a person intent on murder. It is immediately adjacent to the driveway of a well-lit hotel car park.
I do not say that there might not be a case where the prosecution would be able to lead propensity evidence based simply on the manner in which death was inflicted on another occasion. It seems to me that the more distinctive the way in which death was caused is, the less would be needed by way of parallel circumstances. However I do not think that the way in which death was caused in this case can be seen as, in effect, putting a particular mark or imprint on the crime.
The way in which Mr Kourakis QC submits the evidence should be viewed very much follows the way in which it was presented in Pfennig. Senior Counsel argues that accepting that the accused and the victim were together having coffee in North Adelaide not more than 30 minutes prior to the victim’s death and perhaps as little as 10 minutes, and bearing in mind the other items of circumstantial evidence tending to connect the accused with the crime, including injuries to his hands and knee broadly consistent with the sort of struggle which eye-witnesses observed, the accused’s lies on the day following the killing as to which shirt he was wearing the night before and the subsequent loss of the shirt he was in fact wearing, as well as the removal and loss of a section of a collection of distinctive knives which the accused had, together with some other matters perhaps of less significance, it is objectively improbable that another man, of broadly similar description, made contact with the victim soon after her parting from the accused, travelled with her in her motor vehicle for a couple of kilometres and then killed her, using the very same method the accused had employed in relation to his father many years earlier.
Whilst I agree that this evidence has significant probative force, I do not consider that it has the decisive impact on the current issue which the relevant authorities require.
In Pfennig not only were the two abductions only eleven months apart, but there were also other strong similarities as between the crimes. For instance the two victims were of similar age and were both out and about on their bicycles. In both cases the bicycles were apparently moved in an attempt to create a false picture of the scenes of the respective disappearances. On both occasions Pfennig had available to him the same vehicle, commodious enough to transport the boys and their belongings from the point of abduction to the place where the belongings were left.
Furthermore, there was evidence from Pfennig’s wife of an admission to her made at the time of his arrest for the subsequent abduction. He told her words to the effect that he had been thinking about what he had just done on and off over the previous twelve months. That period took in the time of Michael Black’s disappearance. To all that could be added the fact that Pfennig spoke to Michael Black, a person unknown to him, on the very day of his disappearance and, in the same location but one day earlier, had attempted to entice two other young persons into his van.
Conclusion
I am unable to say that to exclude this evidence would be an affront to common sense. In my view, particularly having regard to the dangerous world of drug dealings inhabited by the deceased and bearing in mind the very different and distant events of 1969, I do not consider that the evidence meets the stringent test for admissibility relating to propensity evidence.
My ruling is that the evidence is inadmissible.