R v Debs
[2007] VSC 166
•12 April 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1426 of 2006
| THE QUEEN |
| v |
| BANDALI MICHAEL DEBS |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2007 | |
DATE OF RULING: | 12 April 2007 | |
CASE MAY BE CITED AS: | R v Debs | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 166 | |
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CRIMINAL LAW – Murder trial – Evidence – Admissibility of evidence of the finding of the weapon and ammunition three years after killing under mother’s house – Any prejudicial effect outweighed by probative value – Prejudice allayed by jury direction – Evidence admissible – Intercepted conversation between accused and daughter on 11 February 2000 referring to the weapon also admissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney | Office of Public Prosecutions |
| For the Accused | Mr C. Dane QC with Ms H. Spowart | Victoria Legal Aid |
HIS HONOUR:
The accused is charged with the murder of Kristy Mary Harty at Upper Beaconsfield on 17 June 1997. At the forthcoming trial the Crown wishes to adduce evidence as to the finding in July 2000 of a .357 Magnum Smith & Wesson revolver during a search of the premises of the accused’s mother’s house at 20 Cumberland Street, Epping, New South Wales. The Crown also seeks to adduce evidence as to the finding in the garden of those premises of .357 calibre ammunition in July 2004. Mr Dane, of Queen’s Counsel, who appears with Ms Spowart for the accused, has taken objection to the admissibility of that evidence.
The evidence of the pathologist will be that the deceased was killed by a single gunshot to the back of her head at close range. The bullet exited through the right side of her face. The deceased was shot a short distance from where she was found lying face‑downward in bush beside a dirt track off the Beaconsfield‑Emerald Road, Upper Beaconsfield. At the point at which the deceased was shot, there was a large pool of blood. The police located a fired projectile at that point; that projectile was a .357 Magnum calibre, Winchester‑brand, solid‑lead, semi‑wadcutter bullet with copper plating. The evidence will be that that bullet could only have been fired from a .357 Magnum revolver.
On 25 July 2000 a police search was conducted at the house of the accused’s mother in Epping. A number of firearms were located in the course of that search. Underneath the house, towards the front of it, the police found a white plastic bucket, which had been buried. The bucket contained seven firearms. One of the firearms was a .357 calibre six‑shot Smith & Wesson revolver.
In February 1992 a gun shop owned by Wernfried Klimek in Springvale was the subject of a violent armed robbery. In the course of that robbery a number of handguns were taken. In 2000 Mr Klimek identified from a photograph the .357 Smith & Wesson revolver which had been found under the accused’s mother’s house.
In June 2004 James Wright and his wife moved into the premises at 20 Cumberland Street, Epping. One week later, on 3 July, they were digging dirt in their front garden and, while doing so, found two glass containers buried in the garden. Those containers each held a quantity of ammunition. An examination of the ammunition showed that it included a number of .357 Magnum calibre, Winchester‑brand, solid‑lead, semi‑wadcutter cartridges with copper plating.
The Crown intends to link the revolver, which had been found at the accused’s mother’s residence in July 2000, with the accused by adducing evidence as to part of a recorded conversation which the accused had with his daughter, Joanne, at their home at 30 Springfield Drive, Narre Warren, on 11 February 2000. A transcript of that conversation is at pp.792‑793 of the depositions. The conversation concerned a forthcoming search by the police of the accused’s mother’s house. In the course of the conversation the accused described how he had buried what he described as “stuff” in the ground under that house. In the course of the conversation the accused referred to guns which had been hidden in the house.
Mr Tinney, who appears for the Crown, has submitted that the evidence as to the finding of both the weapon and the ammunition at the house of the accused’s mother is relevant to the Crown case. He has submitted that the evidence is relevant because it connects the accused with a firearm of the same type as that which was used to kill the deceased. He submitted that, similarly, the finding of ammunition by Mr Wright at the house of the accused’s mother in 2004 is relevant because it connects the accused with ammunition of the same type as that which was used for the killing of Ms Harty. He submitted that although the finding of both of those items was separate in time and place to the killing, nonetheless the degree of separation is not such as to render the evidence irrelevant. Mr Tinney acknowledged that the evidence, if admitted, could potentially be unfairly prejudicial to the accused if it were misused by the jury; however, he submitted that such prejudice may be sufficiently allayed by appropriate directions given by me to the jury as to the use which they might make of the evidence and as to the use which they ought not to make of it.
On the other hand, Mr Dane contended that the evidence would be of little, if any, relevance to the issues in the case. He submitted that any probative value of the evidence is significantly outweighed by the prejudicial effect on the accused were it admitted in evidence. Mr Dane particularly submitted that there are a number of factors which, collectively, deprive the evidence of its probative worth. They include the following. First, Mr Dane referred to the evidence of the firearm examiner, Mr Raymond Vincent. At the committal Mr Vincent stated in cross‑examination that he could not say that the weapon seized at the accused’s mother’s house is the same weapon which fired the projectile recovered from the crime scene. Secondly, Mr Dane referred to the fact that the weapon was not found at the accused’s mother’s house until three years after the killing and that the ammunition was not found for a period of seven years after the date of the killing. Thirdly, Mr Dane pointed out that the weapon was found at a point which was geographically quite separate to the crime scene: it was found in Sydney and not Melbourne; it was found underneath the mother’s house and not in the accused’s own house. Fourthly, Mr Dane submitted that there is no evidence as to when the weapon had been buried under the accused’s mother’s house; in particular, there is no evidence that it had been buried after, and not before, June 1997. Fifthly, Mr Dane pointed to the intercepted conversation between the accused and his daughter, Joanne, in February 2000. He submitted that that conversation was vague as to what was buried by the accused and as to the time at which he buried it. The accused did not specifically state that he buried a .357 calibre Smith & Wesson weapon and, therefore, Mr Dane submitted, there was no evidence which connected the accused with the weapon that was actually found under the house.
Mr Dane also submitted that if the evidence was admitted, it would be of significantly prejudicial value in the case. He submitted that it would induce a jury to consider that the accused is a violent man with a disposition to possess and use firearms. He also submitted that the weapon itself had been stolen in the robbery of 1992. That robbery was one of a number which were the subject of a police operation described as Operation Hamada. Evidence as to those robberies was led in the trial of the accused and a co‑accused for the murder of two police officers in 1998. Mr Dane submitted that any reference to that evidence by calling Mr Klimek would, therefore, be highly prejudicial to the accused.
In determining the probative value of the evidence which the Crown seeks to lead, it is important to consider that evidence in the context of the whole of the Crown case. That case is entirely a circumstantial case. The principal evidence is as follows. The deceased was found in bush approximately 10 metres from a large pool of blood which was located on the side of the track about 185 metres west of the Beaconsfield‑Emerald Road. The deceased’s underpants were around her ankles. The evidence suggests that the deceased was shot close to the location of the pool of blood and from there she was dragged some 10 to 12 metres where her body was ultimately found. On examination of the deceased, samples taken from her vagina and the rear panel of her underpants revealed the presence of semen. DNA was extracted from both samples. Statistical analysis indicates that it is particularly likely that the donor of the semen is the accused.
The Crown case is that the person who shot the deceased was the same person who deposited sperm in the vagina and on the underpants of the deceased. In support of that proposition, the Crown relies on Dr Odell of the Victorian Institute of Forensic Medicine. The Crown relies on matters such as the lack of semen in the crutch of the deceased’s underpants and on other marks on her body. The Crown will be inviting the jury to infer that the deceased had sex with the person who deposited the sperm on her at or close to the place at which she was shot. Finally, as I have already stated, the deceased was shot with a .357 Smith & Wesson gun. The bullet by which she was shot was copper‑coated.
It is in that context that I am required to consider the relevance and potential probative value of the evidence which the Crown seeks to adduce concerning the finding of the weapon and the ammunition at the house of the accused’s mother. In doing so, I bear in mind that in a circumstantial case such as this, the Crown does not necessarily rely on that evidence in isolation from the other evidence which it seeks to adduce; rather, as the authorities point out, it is the united force of all the evidence accepted by the jury which is material in the drawing of inferences by the jury. Thus a particular individual fact, of itself, may play only a minor role, if any, in pointing to the guilt of an accused; however, in the context of the whole of the Crown case, that fact may be relevant in strengthening or adding to the inference of guilt contended for by the Crown (see R v. Chamberlain No.2 (1985) 153 C.L.R. 521 at 535‑6, Gibbs CJ and Mason J; Shepherd v. R (1990) 170 C.L.R. 573 at 580, Dawson J.)
It is important to identify just what the Crown seeks to establish by adducing the evidence of the finding of the weapon and the ammunition at the accused’s mother’s house. Mr Tinney submitted that the evidence would connect the accused with a weapon and ammunition of the type used to kill the deceased on the evening of 17 June 1997. Put more precisely, the Crown seeks to adduce the evidence to establish that on that date the accused had available to him a weapon and ammunition of the kind which was responsible for the death of the deceased.
Pausing there, it is indisputable that it would be relevant and probative to establish that at the time of the murder the accused had in his possession, or had accessible to him, a weapon and ammunition of the type used to murder the deceased. For example, if such a weapon and ammunition was found on him or at premises to which he had access shortly after the murder, that would clearly be relevant and admissible. In such circumstances its relevance and admissibility would not be affected by the fact that forensic evidence could not link the particular weapon found in the accused’s possession with the murder weapon. It would be sufficient, for it to be relevant and admissible, that the accused had available to him a weapon of the kind used in the murder.
Here, of course, the connection with both the murder and the accused is not as clear‑cut. As Mr Dane has pointed out, the weapon was located in New South Wales and not at the accused’s place in Narre Warren and it was located some three years later. In that context Mr Dane has submitted that the evidence of Mr Vincent that he could not specifically link the death with the weapon which fired the fatal shot is significant. Put together, Mr Dane submitted that those factors deprive the evidence of any useful probative value that it would otherwise have.
Ultimately the question whether the factors pointed to by Mr Dane so detract from the probative force of the evidence as to render it of little or no relevance is a matter of degree. Taking those factors alone, I do not consider that the time gap of three years to the finding of the weapon, or seven years to the finding of the ammunition, significantly detracts from the probative value of the evidence. In this connection it is relevant that Mr Klimek’s evidence, if admitted, would establish two factors: firstly, that the gun was in existence before 1997 and, secondly, that he, its owner, had already lost possession of it some years before 1997. In that context, and given the fact that the weapon when found had been buried, the gap of three years from the killing to the finding of the weapon would not, in my view, significantly detract from the evidence’s probative value.
Nor do I consider that the location of the weapon in Sydney in 2000, on its own, would be sufficient to detract from the probative value of the evidence so as to make it irrelevant. The distance of Sydney from Melbourne and its accessibility are not such as to give that factor, on its own, such significance that it would deprive the evidence of its probative worth.
The other matter relied on by Mr Dane is the content of the conversation between the accused and his daughter, Joanne, in February 2000 on which the Crown relies to connect the accused to the weapon. It is true that in the course of that conversation the accused did not expressly and specifically refer to the .357 Smith & Wesson Magnum revolver; however, in my view, a jury could, and in all probability would, accept that the accused was referring to firearms in the course of the conversation which he had with his daughter and in which he referred to having buried “stuff” under his mother’s house.
Thus, taken separately and individually, I do not consider that the factors relied on by Mr Dane, of themselves, significantly undermine the potential relevance of the evidence which the Crown seeks to lead. Of course, the cumulative and combined effect of those factors, taken together, is significantly greater. Nonetheless, I do not consider that, taken together, they so diminish the potential connection of the weapon and the ammunition with the accused or with the crime as to make them irrelevant or to deprive them necessarily of almost all their probative force. Notwithstanding the factors relied on by Mr Dane, I consider that it is open to a jury to rationally consider that the evidence adds to, or supports, the inference of guilt contended for by the Crown arising from all the evidence to be led in the case.
Ultimately, if I admitted the evidence, it would be for the jury as to what they make of the evidence in light of the matters which have been canvassed by Mr Dane. However, as I have stated, I do not consider that that evidence is incapable rationally of being anything other than of little or no value. In other words, in my view, the evidence is reasonably capable of being considered of probative value in support of the inference of guilt contended for by the Crown.
Put simply, the deceased was killed in July 1997. There is evidence that the accused had sexual intercourse with her before the killing. There is evidence supporting the inference that the person who had sexual intercourse with the deceased had killed her. The deceased was killed with a .357 Magnum Smith & Wesson revolver. The projectile was a .357 Magnum calibre, Winchester‑brand, solid lead, semi‑wadcutter with copper plating. A weapon of that description was found at the accused’s mother’s house three years later. Ammunition of that description was found at the accused’s mother’s house seven years later. There is evidence capable of linking the accused to the weapon found at his mother’s house in 2000. In that context and so stated, in my view, the finding of the weapon and the ammunition is capable of strengthening or adding to the inference of guilt of the accused. Whether it ultimately does so is not a matter for me but for the jury, but it is potentially of more than trivial probative value.
I turn, then, to the question of prejudice. Mr Tinney has correctly and properly acknowledged that if the evidence were admitted, it is capable of having an unfairly prejudicial effect on the accused if it were misused by the jury. In particular, the evidence might suggest to the jury that the accused is a man with a disposition to use firearms illegally. That prejudicial potential is enhanced by the evidence that the accused hid the firearm by burying it with other firearms under his mother’s house. The critical question is whether such prejudicial effect can be sufficiently negated by an appropriate direction given by me to the jury.
It is not uncommon in a criminal trial that the prosecution is permitted to adduce evidence, such as evidence as to the finding of weapons and the like, at premises connected to an accused. In such a case juries are directed as to the uses they may and may not make of such evidence. Particularly, juries are given directions of the type which would be necessary for me to give in this case if the evidence were admitted. The view of the law and the experience of the law has generally been that such directions are sufficient to offset any potential prejudicial effect caused by the admission of that evidence. The experience of the law is that juries, particularly in modern times, are astute and conscientious in observing and adhering to directions such as those which would need to be given in this case. Although one can never be certain, nonetheless I do consider that such prejudice which might otherwise flow to the accused from the admission of the evidence can be adequately offset by the giving of appropriate directions by me to the jury.
I should note that Mr Dane also raised a further item of potential prejudice which he contended would be caused to the accused if I were to admit the evidence of the finding of the weapon and the ammunition. Mr Dane submitted that that evidence would necessarily involve the Crown leading evidence implicating the accused in the violent robbery at Mr Klimek’s gun shop in Springvale in 1992. However, the Crown does not seek to lead such evidence. All the Crown wishes to lead, and indeed would be permitted to lead, is evidence that guns were taken from Mr Klimek’s shop without his consent. In 2000 Mr Klimek identified as his weapon from a photograph the .357 Smith & Wesson Magnum revolver found under the accused’s mother’s house. In that context there would be no need to link the accused with the robbery or with the circumstances of the taking of the gun from Mr Klimek’s shop.
Accordingly, I consider that the evidence as to the finding of the weapon under the accused’s mother’s house in July 2000 and the finding of the ammunition in the garden of those premises in July 2004 is relevant. I consider that any prejudicial effect can be adequately allayed by giving the appropriate directions to the jury. I do not consider that the potential relevance of the evidence is outweighed by any prejudicial effect of it and, accordingly, I rule that the evidence is admissible.
Finally, of course, in so ruling I emphasise that it is important that in opening the evidence to the jury the Crown prosecutor, Mr Tinney, should make it abundantly clear to the jury just what use the Crown submits they should make of the evidence. He should be particularly astute not to raise at all the spectre of any improper use by them of it.
From that ruling, it follows that I would also admit in evidence the part of the conversation between the accused and his daughter, Joanne, on 11 February 2000 which is found at pp.792‑793 of the depositions. Precisely where that extract commences and completes was a matter of some discussion before me. I think it is better that it be discussed between counsel. If there is any dispute, I can resolve it.
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