R v Farrugia
[2014] VSC 212
•14 MAY 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0110 of 2013
| THE QUEEN |
| v |
| KEVIN FARRUGIA |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 APRIL 2014 | |
DATE OF RULING: | 14 MAY 2014 | |
CASE MAY BE CITED AS: | R v FARRUGIA | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 212 | |
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CRIMINAL LAW – Murder – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to accused - ss 97, 101 Evidence Act, 2008 (Vic)
EVIDENCE – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer in a murder trial – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to the accused – ss 97, 101 Evidence Act, 2008 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Hassan | Office of Public Prosecution |
| For the Accused | Mr M G O’Connell SC with Ms S Leighfield of counsel | Dean Cole and Associates |
HIS HONOUR:
Introduction
The accused Kevin Farrugia is charged with the murder of Wayne Boyd. It will be alleged by the prosecution that Farrugia murdered Boyd in a drug rip-off, intending to take Boyd’s money without supplying the drugs Boyd intended to purchase. The accused is yet to file a response to the summary of prosecution opening but the argument was run on the basis that Farrugia denies that he killed Boyd.
The prosecution gave written notice pursuant to s 97(1)(a) of the Evidence Act 2008 of its intention to adduce tendency evidence under that section in respect of a fact in issue stated to be ‘Identity – Was Kevin Farrugia the person who murdered Wayne Boyd?” The tendency sought to be proved is said to be the tendency of Farrugia to –
(a)Act in a particular way, namely between November 2001 and February 2002:
(i)to perpetrate drug ‘rip-offs’ on associates (victims) whom he believed were in possession of substantial amounts of money;
(ii)to first complete a smaller 1 kg pseudoephedrine transaction with the victim in order to engender trust and in furtherance of the planned ‘rip-off’;
(iii) to kidnap the victim and take them to a ‘proximate’ remote location;
(iv)to deal with each victim by violent means, in each case he personally discharged a firearm at the victim from behind a number of times; and
(v) to flee to Sydney afterwards.
(b) Have a particular state of mind, namely:
(i)to deceive the victim that he was willing and able to supply him with a large amount of pseudoephedrine; and
(ii)in each case he sought to avoid being called to account for his failure to supply either victim with product by kidnapping them and dealing with them by violent means, in each case involving the use and discharge of a firearm.
The accused objects to the admission of the proposed tendency evidence. The parties agreed that I base my ruling on the depositions.
The prosecution allegations
The prosecution will allege that from around August 2001 the accused had the means to source large amounts of pseudoephedrine and from around October 2001 began dealing with Boyd, first by way of intermediaries but subsequently with Boyd himself, and that Boyd believed the accused would supply him with pseudoephedrine on 8 November 2001. The prosecution will allege, on the basis of inferences from telephone records as analysed by a police officer, that Farrugia had no product on the night, and made no effort to obtain any. A witness confirms Farrugia had received $270,000 from Boyd in advance of the transaction. Farrugia falsely represented to Boyd that he would complete the transaction. In order to keep the $270,000 for himself, Farrugia kidnapped and murdered Boyd.
Boyd was last seen alive at 11.05 pm at the Westend Hotel, Sunshine. He was captured on CCTV footage entering the hotel at this time with his father-in-law, Colin Newton. The footage shows Boyd taking a call on his mobile phone and then returning to his car. This call was made from a telephone in the name of Mary Farrugia, the sister of the accused. The prosecution will allege this call was made by Farrugia. Boyd then left the foyer of the hotel telling Newton to remain there and saying that he was going to ‘meet these guys’. Boyd was last seen alive driving out of the car park of the Westend Hotel.
Boyd’s body was found the next morning in a remote location on the side of Beatty’s Road, Rockbank. He had been shot once to the front, in the stomach, and three times to the back of the head. There was evidence that on the following day, 10 November 2001, Farrugia was in Sydney. The only evidence of what might have happened to Boyd during the period from shortly after 11.00 pm on 8 November 2001 until the discovery of his body the following morning is a purported confession by Farrugia to Witness A.
Witness A told police he had befriended Farrugia in prison. According to Witness A’s statement to the police, Farrugia told him that he alone had kidnapped Boyd and taken him to Melton where he had shot him in the back of the head. Witness A will say:
Kevin said that he did exactly to Boyd what he had done to Hamilton except that Hamilton had escaped and Boyd didn’t. It is my understanding that Hamilton was the victim of the kidnapping Kevin was serving time for. I had discussed Hamilton before with Kevin because he was concerned about the ramifications from the Moran faction and the fact that Hamilton had made a statement against him.
Before giving more detail of the context and content of the confession taken from Farrugia by Witness A, it is necessary to explain why Farrugia was in prison and the references to ‘Hamilton’.
In around August 2001, 175 kgs of pharmaceutical grade pseudoephedrine was stolen from a courier van in the Croydon area. At that time, the street value for this chemical was $4.3 million ($25,000 a kilo). The persons who came into possession of the stolen pseudoephedrine, known as ‘the motorbike men’, became the targets of a police operation called Operation Bronco. During the summer of 2001/2002, Farrugia had been dealing with a drug syndicate headed by a man called Cardona, who lived in Taylors Lakes. Cardona’s associates included one Spratling and one Debono. Telephone records, and later intercepted telephone conversations, obtained in Operation Bronco demonstrate that Farrugia was in contact with the motorbike men attempting to source pseudoephedrine from them for sale. This was Farrugia’s source for his dealings with Boyd.
On 17 March 2003, Farrugia, together with two co-accused, Silk and Debono, pleaded guilty to kidnapping one Scott Hamilton and to recklessly engaging in conduct endangering his life. That offending occurred on 13 February 2002, approximately three months after the murder of Boyd, in part at or near 1451 Boundary Road, Tarneit.
Relevantly, the prosecution’s summary on the plea in the Hamilton matter was that Farrugia had telephoned Hamilton on 13 February 2002 to arrange a meeting on the pretext of some kind of illicit drug deal involving a substantial sum of money. Contact was made and Hamilton was taken to a unit in West Footscray during the afternoon. Hamilton was detained at this unit by Farrugia, with co-offenders, for approximately six hours during which time he was subdued by the use of guns and was violently assaulted. The suggested primary motivation for these events was a belief on the part of Farrugia and his co-offenders that Hamilton had been providing information about them to the police. The prosecution summary of the Hamilton offending did not allege that the reason for the offending was a drug rip-off. It was not suggested that $180,000 was stolen from Hamilton. Nor was it suggested by counsel for Farrugia or counsel for his co-offenders that any such reason underlay the offending.
By 10.00 pm that evening, Farrugia and his co-offenders had Hamilton tied up in the boot of a vehicle being driven by Farrugia. His co-offenders were travelling behind in another car. Some reliance was placed on telephone records and telephone intercepts from Operation Bronco. The communications by mobile phone between the offenders in the two cars were intercepted. It is evident that Farrugia’s co-offenders were looking for a particular location. Debono, not Farrugia, was giving directions. Before they arrived at any destination, Hamilton escaped from the boot of the car on Boundary Road. On realising that fact, Farrugia fired 5 or 6 shots in the direction of Hamilton as he ran away towards a house. Farrugia was arrested in Sydney approximately two weeks later.
In June 2008, Farrugia pleaded guilty to one count of trafficking in pseudoephedrine in a commercial quantity. Cardona, Spratling and Debono were co-offenders. Although Hamilton has said nothing about drug dealings with Farrugia in the initial investigation of the kidnapping incident and was uncooperative in that investigation, in November 2012 he made a further statement to police, and the prosecution proposes to lead evidence from Hamilton in terms of this further statement.
Hamilton now states that in the summer of 2001/2002 he was trafficking in drugs on behalf of a well-known crime family (the Morans) and knew Farrugia pretty well. In November or December of 2001, he bought a kilo of pseudoephedrine from him in a deal done at a bar in King St in the city, paying $20,000 for the drugs and $5,000 to Farrugia. The funds were sourced from Cardona. Hamilton states that not long after, Farrugia offered him 8 kg of pseudoephedrine for $160,000. The major part of the $180,000 was put up by the Moran family for whom Hamilton was working. In the days immediately prior to his kidnapping, Hamilton states that he was trying to set up this 8 kg purchase with Farrugia. Hamilton now states that, in fact, Farrugia and another did not force him into a car, but that he voluntarily accompanied Farrugia to collect the $180,000. Farrugia took $20,000 as his commission and then took Hamilton to his unit on the pretext of completing the drug deal.
At Farrugia’s apartment, Hamilton was assaulted, pistol-whipped, and accused of ‘lagging’ Silk or Farrugia into the Homicide Squad. He was later tied up and put in the boot of the car from which he would eventually escape. In his statement, Hamilton continues to stress that he was in this predicament because he was perceived to have made a statement to police. Hamilton said that he never got the money back and when he later discussed the loss of the money with those who had put it up, he was led to believe that they intended to look into it and recover the money for themselves. Later Hamilton believed the money might be returned to him if he made a statement that assisted Farrugia in connection with the kidnapping charges, but his belief was misplaced. Hamilton believed that Farrugia and Cardona spread word through the prison population that he was a dog because he made a statement to police about being kidnapped.
In a short, rather general, statement to the police, Witness A says that Farrugia discussed the murder of Boyd with him in prison over some months from late 2003. Farrugia told him he kidnapped Boyd, tied him up, took him to Melton and shot him in the back of the head. When he shot him ‘his head exploded and blood poured out of his head like a tap.’ Farrugia said that he was glad that Boyd was dead because he was a homosexual. Witness A said that Farrugia initially stated that Debono was present at the murder but later said he acted alone.
The proposed tendency evidence
The s 97 notice provided particulars of 11 matters, identifying evidence as to the accused’s conduct or other circumstances that the prosecution sought to lead as evidence of the alleged tendency, probative of the fact in issue that it was the accused who murdered Boyd. That evidence can be conveniently grouped under 6 topics.
(a)Initial supply of 1 kg of pseudoephedrine – on 5 November 2001 Farrugia supplied Boyd with 1 kg of pseudoephedrine (statement of Colin Newton, pp257-258). In November or December 2001, Farrugia supplied Hamilton with 1 kg of pseudoephedrine (statement of Scott Hamilton, pp405-418, paragraphs 17-19). Boyd paid $25,000, and Farrugia took $10,000 for himself. Hamilton paid $20,000, and Farrugia took $5,000 for himself.
(b)False representations that further pseudoephedrine was available – Farrugia represented to Boyd that there would be a large deal on Thursday 8 November 2001. Evidence of the telephone intercepts in Operation Bronco are to be relied on for an inference that this representation was false (statement of Colin Newton, pp257-258, committal evidence of Graham Guy, pp224-225). Intercepted telephone calls disclosed that on 13 February 2002, Farrugia set up a meeting with Hamilton on the pretext of supplying him with a substantial amount of pseudoephedrine for $180,000 (including $20,000 commission). Hamilton handed over the money (Crown opening, The Queen v Farrugia, Debono and Silk; intercepted telephone calls 701, 1405, 78, 80, 89, 90, 92, 99 and 102; statement of Scott Hamilton 405-418, especially paragraphs 1, 21, 22, 23, 26, 28, 30-58).
(c)Kidnap and shooting of victims – On 8 November 2001, Boyd met with Farrugia at 10.00 pm outside Royal Children’s Hospital and gave him $270,000. He received no pseudoephedrine. He left the Westend Hotel, Sunshine after taking a telephone call and was not seen alive again. Farrugia told Witness A he kidnapped Boyd, tied him up and took him to Melton where he shot him in the back of the head. He told Witness A, ‘he did exactly to Boyd what he had done to Hamilton except that Hamilton had escaped and Boyd didn’t’ (Witness A, p421, paragraph 10, statement of Graham Guy p478, statement of Colin Newton, pp259-260). On 13 February 2002 after meeting Farrugia at Watergardens Centrelink, Hamilton retrieved $180,000 in cash that he gave to Farrugia. He was then taken to Farrugia’s unit and later tied up and placed in the boot of Farrugia’s car and driven towards a remote location. When he escaped, he was shot at by Farrugia 5 to 6 times (Crown opening, The Queen v Farrugia, Debono and Silk; intercepted telephone calls 121, 134, 135, 137, 139, 144).
(d)Use of remote location – Boyd’s body was located at Beatty’s Road, Rockbank on 9 November 2001 (statements of Jeffrey Yuille, p715, Matthew Lynch, p805, Mark Zerafa p863, Paul Barrow, p867, Paul Cox, p937). Hamilton escaped from the car at Boundary Road on 13 February 2002 (appendix A, 1052-1053, Crown opening, The Queen v Farrugia, Debono and Silk).
(e)Travel to Sydney – the day after Boyd was killed, Farrugia was in Sydney (statement of Helen Moon, p577). Farrugia was arrested in Sydney on 27 February 2002 in connection with the offences against Hamilton (Crown opening, The Queen v Farrugia, Debono and Silk).
(f)Victim shot from behind at distant range – there is evidence of distant (beyond 30 cms) gunshot wounds to the back of Boyd’s head. The direction of the gunshot wounds to the back of the head is back to front (Matthew Lynch, p814).
Submissions
The prosecution does not seek to use the evidence as coincidence evidence pursuant to s 98 of the Act. Tendency reasoning is relied on to contend that because Farrugia acted as he did in relation to Hamilton, a jury may use the evidence of Farrugia’s conduct in the Hamilton offending, in the context of the whole of the evidence that it receives, to reason that he killed Boyd acting in the same way, with the same state of mind. The prosecution contends that the proposed tendency evidence supports the confessional statement made to Witness A. It is said that the evidence of Farrugia’s conduct in the Hamilton offending has significant probative value on the issue of the identity of Boyd’s killer and that probative value substantially outweighs any prejudicial effect it may have for Farrugia. The matters asserted under the ‘state of mind’ limb of the tendency notice were treated by the parties as different ways of stating the tendency to act in a particular way. Having regard to the way the matter was argued, I do not propose to separately address these alleged particular states of mind.
The prosecutor submitted that what happened to Hamilton establishes a modus operandi, a way of behaving in Farrugia’s dealing with a drug associate in the context of a rip-off. This modus operandi is said to be the kidnapping and shooting of the drug associate where a significant sum of money has already been provided to Farrugia and where drugs are yet to change hands. When the objective circumstances of proximity in time and geographical location are added, there is similar offending, not striking similarity which is not the test, but very similar offending that is probative and certainly cogent of the issue of identity.
The accused denies having any involvement in the death of Boyd and identifies the central issue at the trial to be whether or not the prosecution can prove that he shot and killed Boyd. Farrugia takes four objections to the proposed tendency evidence.
(a)the single incident sought to be relied on cannot and does not establish a tendency;
(b)the particular tendency alleged is not supported by the evidence;
(c)the tendency evidence sought to be adduced does not possess significant probative value, either on its own, or when considered in conjunction with the alleged confession to Witness A; and
(d)the prejudicial effect of the proposed evidence substantially outweighs any probative value it might have.
Principles
Tendency evidence is defined by reference to s 97 of the Act as evidence to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind. The probative value of the disputed evidence depends on its probative value in establishing the tendency and on the probative value of the tendency (if established) in relation to the fact in issue.[1]
[1]BP v R, R v BP [2010] NSWCCA 303, [106].
Section 97 provides:
97 The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)…
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The Act further relevantly states:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Tendency evidence has probative value if it can rationally affect the assessment of the probability of the existence of a fact in issue and it has significant probative value if it has a significant, important or substantial degree of relevance, having regard to the nature of the fact in issue.[2] Both the nature of the tendency and the nature of the fact in issue will determine whether the evidence has significant probative value. In some cases, the tendency may be to act in a particular way towards a particular victim, as in sexual assault cases where there is evidence that an accused had a sexual interest in a complainant and the fact in issue concerned an offence against that complainant. Such cases can be contrasted with cases where the evidence of tendency is that an accused had a tendency to commit a particular kind of act or to commit a particular kind of act in particular circumstances and the allegation is that the accused committed another act of the kind or committed another act of the kind in particular circumstances.
[2]GBF v The Queen [2010] VSCA 135, [25].
In Murdoch (a pseudonym) v R,[3] Priest JA explained that in determining whether the proposed tendency evidence, either by itself or having regard to the other evidence to be adduced, has significant probative value:
The court must make a decision of law about the reasoning processes that are open to a jury, the relevant question being whether the evidence is capable, to a significant degree, of rationally affecting the assessment by the jury of the probability of the existence of a fact in issue.
[3][2013] VSCA 272, [83].
In CEG v R,[4] the Court of Appeal gave this warning:
… when it comes to the admissibility of propensity evidence, one must be careful to ensure that the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in issue. Otherwise, there is the danger of admitting evidence as tendency evidence simply because that evidence suggests that the accused is or was the sort of person who is more likely to commit the kind of offence with which he is charged.
[4][2012] VSCA 55, [14].
In Semaan v R,[5] Priest JA helpfully sets out a number of factors that might be considered:
In my view, a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency might include the number of occasions that the conduct displaying the alleged tendency have occurred; the temporal (and, perhaps, geographical) connection of such conduct with the charged conduct; the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi); and whether the circumstances of occurrence of the conduct and charged conduct are similar.
[5][2013] VSCA 134, [40].
In R v Tektonopoulos,[6] the Court of Appeal ruled inadmissible, pursuant to s 398A of the Crimes Act 1958 (Vic), similar fact evidence tendered for the purpose of establishing the identity of the accused as the offender. Evidence of events that had occurred at nearby premises three days after the date of the offences was tendered as propensity evidence. The section required the judge to balance probative force against prejudicial effect and the judge was required to admit the evidence if he or she concludes that the evidence is sufficiently probative as to render it just to admit it despite its prejudicial effect. The court noted that when propensity evidence is in the nature of similar fact evidence and tendered for the purpose of establishing the identity of the accused as the offender, the risk of prejudice is at its highest. For such evidence to be admissible there should be something in the evidence, in the nature of ‘striking similarity’ with the offence charged, which strongly points to the accused as the offender. In such cases, the risk is high that the jury will reason, from the mere fact of establishing criminal propensity, that the accused is the offender.
[6][1999] VSCA 93.
In Reeves v The Queen[7], Maxwell ACJ directed the attention of trial judges to the statutory task to assess the probative value of the disputed evidence. The epithets that are applied by various courts do not define the test so much as measure, or quantify, the assessment being undertaken. His Honour said:[8]
Successive decisions of this Court and of the New South Wales Court of Criminal Appeal have used words such as ‘remarkable’, ‘unusual’, ‘improbable’ and ‘peculiar’ when characterising the kinds of conduct which is properly the subject of tendency evidence. As the Court made clear in R H B, it is the ‘degree of peculiarity’, or the extent to which the conduct can be said to be ‘remarkable’, which will guide the assessment of probative value.
Relevantly for my decision, Maxwell P also observed:[9]
The fact that, in each case, the alleged tendency to act in the manner alleged relied on only one other instance of the conduct does not, in my view, prevent its constituting tendency evidence. Drawing on what was said in the judgment in the interlocutory appeal in the present matter, ‘the features of commonality or peculiarity which are relied upon are significant enough logically to imply’ that if Mr Reeves committed the previous act (or the subsequent act, as the case may be), and did so in the particular circumstances alleged, it was more probable that he committed the act alleged by the other complainant.
[7][2013] VSCA 311.
[8]Ibid, [53].
[9]Ibid, [56]. See also GBF v The Queen [2010] VSCA 135, [32].
In Tognolini v The Queen,[10] the Court of Appeal again considered similar fact evidence tendered on the issue of identification of the offender. Nettle JA addressed the particular submission that in cases where the identity of the perpetrator is in issue, the only permissible basis for the admission of similar fact evidence is striking similarity or a signature satisfying what is sometimes called the hallmark principle. Rejecting this submission as overstatement, his Honour said:
… the question is not whether the means of commission of the crime is in each case the same or strikingly similar but whether the evidence sought to be admitted ‘is cogent enough to be admitted as proof of identification of this offender’. Logically, that depends upon all the evidence in the case and whether, when the putative similar fact evidence is considered in the context of all the evidence, its probative value sufficiently outweighs any prejudicial effect as to render its admission just.[11]
[10][2011] VSCA 394.
[11]Ibid [6]. See also Judd AJA at [51]-[52].
The disputed evidence in this case falls within the category of activity based tendency, about which the Court of Appeal has said that common law conceptions of similar fact evidence provide useful guidance.[12] What is necessary is that the disputed evidence should make more likely to a significant extent, the facts that make up the element of the identity of the offender charged as the actor. A ‘striking pattern of similarity between the incidents’ is unnecessary. Nonetheless, the common law’s healthy scepticism in relation to similar fact evidence can be informative when considering the requirement of s 97 of the Act. As the Court of Appeal stated:
Accordingly, one is loath to accept that offending on one occasion is significantly probative of offending on another unless there are significant or remarkable similarities as between previous acts and the act in question, or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed or, more compendiously, unless the evidence reveals a pattern of conduct, modus operandi or some other underlying unity, which logically implies that, because the accused committed the previous acts or committed them in particular circumstances, he or she is likely to have committed the act in issue.[13]
[12]Ibid, [27].
[13]GBF v The Queen [2010] VSCA 135, [27] (citations omitted).
Finally, it can be noted that the test for the admissibility of tendency evidence is one of fact and degree to be assessed in the light of the facts and circumstances of the particular case.[14]
[14]KRI v R [2011] VSCA 127 [57]; RHB v The Queen [2011] VSCA 295, [18].
It is now accepted that when a trial judge undertakes an assessment of probative value as required under ss 97 and 101 of the Evidence Act, greater latitude is extended to the trial judge to take account of aspects of the quality of the evidence. It has been considered relevant to consider whether the evidence is disputed or the possibility that the evidence was concocted.[15] Although the line between credibility and reliability is not always sharp and clear, when assessing the probative value of evidence, a trial judge is only obliged to assume that the evidence will be accepted as truthful but should assess its reliability and weight as part of the evaluative process.[16]
[15]Dupas v The Queen [2012] VSCA 328, [165].
[16]Ibid, [63].
It is accepted that s 101 of the Act is to be construed according to its terminology, rather than by reference to the test which the common law applied to the balancing exercise. In GBF v The Queen,[17] the Court of Appeal noted that the section ‘calls for the application of a balancing process which is to be conducted on the facts of each case.’ In CGL v DPP (Vic),[18] the Court of Appeal said:
As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has ‘significant’ probative value and – even more so – to demonstrate that its probative value ‘substantially outweighs’ the very real prejudicial effect of evidence of this kind.
[17][2010] VSCA 135, [30].
[18][2010] VSCA 26, (2010) 24 VR 486, [40].
The prosecution relies on a single incident occurring subsequent to the murder of Boyd. That circumstance, of itself, is not determinative of the application. However, in my view for the reasons that follow, the evidence identified in the Notice does not support the tendency contended for and for that and the other reasons expressed I will uphold the accused’s objection.
Analysis of tendency evidence/reasoning
The prosecution rely on proximity in place and in time between the Boyd murder and the Hamilton offending. I am not persuaded that location of the Hamilton offending is a point of similarity between the two incidents that renders more probable the conclusion that Farrugia killed Boyd. Boyd’s hire care has never been found and the crime scene at Beatty’s Road has not yielded any evidentiary material beyond that drawn from Boyd’s body. There is no relationship or connection between the location where Boyd’s body was found and how and where Boyd was killed, let alone by whom. The prosecution tendered a drawing showing the distance between the site of Hamilton’s escape and Beatty’s Road to be approximately 10.4 km, as the crow flies. Of itself, that distance does not establish a proximity that might influence the balance in an assessment of probative value of the tendency evidence.
More significantly, the location for that part of the Hamilton offending that involved shots being fired had nothing to do with Farrugia. The telephone intercepts show that Farrugia was being directed by Silk and Debono from the following car as to where to go and whatever that location was, nothing suggests that it was Beatty’s Road or even a remote location. Whatever the destination, it was not being chosen by Farrugia. Importantly, the location that is only 10.4 km from Beatty’s Road at which the shots were fired was effectively chosen by Hamilton because Farrugia fired on him after he escaped from Farrugia’s car. That car was never located. It is erroneous to treat as a relevant similarity a circumstance outside of the accused’s control.[19]
[19]PNJ v DPP (Vic) (2010) 27 VR 146 , 151, [19].
Were I to assume that the Hamilton incident occurred proximate to the place where Boyd’s body was found, I cannot see that that fact, either alone or in combination with any of the other matters to which I refer in this ruling, can bear upon the identity of Boyd’s killer. Farrugia’s counsel submitted that the general vicinity of Beatty’s Road was ‘a dumping ground used by all manner of criminals and possible suspects.’ While I have no basis for a finding to that effect, evidence at trial may lead to competing inferences being available to a jury about the identity of persons who might dump a body at Beatty’s Road.
I do not accept that proximity in time is a factor that affects my assessment of the probative value of the tendency evidence. All of the relevant events on the Hamilton offending occur after Boyd’s murder and, in the relevant sense of affecting an assessment of probative value on the issue of identity, can be regarded as a single subsequent event. The prosecution does not show any established pattern of conduct prior to Boyd’s murder showing a tendency to act in a particular way at the time of the murder. Rather, the reasoning is that because Farrugia acted in a certain way at a later time (February 2012), he must have acted the same way at an earlier time (November 2001). Such reasoning may be open but, with reference to the timing, I do not consider that the fact that Farrugia fired shots towards the escaping Hamilton in February 2012 to have significant probative value on the issue of whether Boyd was murdered by Farrugia in November 2001.
The prosecution rely on the similarity between the kidnap of and shooting at Hamilton and the kidnapping and murder of Boyd. By reason of Farrugia’s plea of guilty, there is no issue that Hamilton was kidnapped and that the events unfolded at Boundary Road as I have described. What occurred with Boyd from the time he left the car park at the Westend Hotel until the time that his body was discovered is very much in issue. Whether there is any similarity between those events is dependent on the evidence of Witness A.
I agree with counsel for Farrugia that I ought to separately consider the admissions to Witness A, which are denied, and not conflate the admissions with the tendency alleged. Witness A’s evidence may be relevant to assessing the probative value of the Hamilton offending but it does not establish the tendency. An admission that Farrugia kidnapped and killed Boyd exactly as he had done to Hamilton cannot be used to establish or support a tendency of Farrugia to kidnap and kill because of his conduct and state of mind in connection with the Hamilton offending. The reasoning is circular.
Putting to one side any similarity identified by the evidence of Witness A to which I will return, counsel for Farrugia identified many points of difference between the Hamilton offending and the prosecution’s case. Counsel contended that there is no evidence establishing:
·how, when or why Boyd left the car park at the Westend Hotel;
·how Boyd’s body ended up at Beatty’s Road;
·what happened to Boyd’s hire car;
·whether Boyd drove himself to Rockbank, or some other intermediate location, or whether he was driven to Rockbank or elsewhere;
·whether Boyd was shot at the scene or elsewhere;
·the time of Boyd’s death; and
·that Boyd was tied up at any stage.
The dissimilarities between what occurred to Hamilton before he was shot at by Farrugia and the prosecution’s case in respect of Boyd’s murder, whether considered alone or in combination with any of the other matters to which I refer in this ruling, persuade me that the prosecution has not established a tendency or a tendency with significant probative value on the issue, whether Boyd was killed by Farrugia.
Another similarity asserted by the prosecution is that Farrugia ‘fled’ to Sydney after each event. I am not persuaded that there is any relevant similarity between the two ‘fleeing’ events. There is evidence that Farrugia did go to Sydney some days after the Hamilton kidnapping and was arrested in Sydney on 27 February 2002. There is evidence that Farrugia was in Sydney on 10 November 2001, the day after Boyd’s body was located. A witness, Helen Moon, will give evidence that she had dinner that evening in Sydney with Farrugia, Cardona, and Debono. During dinner Cardona received a phone call and then informed his dining companions that somebody he knew had died. Later that evening, Farrugia, with Cardona and Debono, left Sydney to drive back to Melbourne. Because Farrugia promptly returned to Victoria, I am not persuaded that there is any relevant tendency to flee to Sydney after offending.
Another circumstance relied on by the prosecution is the suggestion that each victim was similarly dealt with - by violent means with a firearm discharged at the victim from behind a number of times. Putting the alleged confession to Witness A to one side, there is no evidence as to how Boyd came to be shot or that Farrugia personally discharged a firearm at him. Although the autopsy shows that Boyd was shot in the head from behind, he was also shot in the stomach from the front. Forensic evidence will allege that the fragments of bullets retrieved from Boyd’s head were fired from the same gun. No such conclusion is open about the shot to the stomach. The evidence does not identify the order of the shots fired, Boyd’s location or position at the time each shot was fired, whether there was one or more persons present when Boyd was shot, who actually shot Boyd and whether Boyd himself was unarmed when he was shot. The evidence that the shots fired at Boyd were distant means that they were fired from a distance of more than 30 centimetres. Farrugia also drew attention to the use of different guns with different calibres in each offending.
To suggest that there is a similarity because a firearm was discharged at the victim a number of times from behind at a distance is fatuous. It is not disputed that Hamilton was escaping from Farrugia’s custody when shot at. The evidence that Boyd received distant shots to the head does not compare with that conduct. Moreover, the argument fails to acknowledge the shot to Boyd’s stomach. The jury could not reason that Farrugia was firing shots to kill Hamilton, he was trying to stop Hamilton from running away. The evidence cannot establish a tendency to murder. No tendency to act in a particular way or to have a particular state of mind is demonstrated by this aspect of the Hamilton offending. A fortiori, I am not persuaded that the evidence that Hamilton was dealt with by violent means with a firearm discharged at him from behind a number of times has any, let alone significant, probative value on the issue of the identity of Boyd’s killer.
The prosecution contend that Farrugia had a tendency to perpetrate a drug rip-off involving a substantial sum of money after first engendering the trust of his victim with a smaller 1 kg transaction. This alleged similarity between the Boyd murder and the Hamilton offending lies at the foundation of the prosecution’s submission that the tendency evidence has significant probative value on the issue of the identity of Boyd’s killer. I turn firstly to the 1 kg ‘trust’ transactions.
I accept the submission of counsel for Farrugia that the history of Farrugia’s alleged dealings with Boyd is nothing like the history of Farrugia’s dealings alleged with Hamilton. These dealings are not the subject of admission by Farrugia’s plea of guilty to kidnapping and conduct endangering life. The prosecution’s case about Boyd is that from around October 2001, Boyd began dealing with Farrugia, first by way of intermediaries and subsequently in person. It is asserted that in October 2001, one Troy Nelson on Boyd’s behalf bought 3 kgs of pseudoephedrine from Farrugia. This transaction appears to be overlooked when it is asserted that the 1 kg transaction of 5 November 2001, a matter of days before Boyd’s death, was the first transaction that was undertaken to engender trust or to prove that pseudoephedrine was available.
Hamilton’s evidence is that his alleged purchase of 1 kg of pseudoephedrine was conducted with Cardona’s money and that the drugs were then handed on to others. Hamilton retained only a very small amount. That transaction was in November or December 2001, some months before the kidnapping event.
Despite these differences, there is evidence of what might be thought to be a pattern of initial small transactions between Farrugia and drug purchasers. I consider that a jury is likely to reason that such a limited pattern could be typical of drug dealing and that there is not significant, distinctive, or remarkable features of Farrugia’s conduct arising from the Hamilton incident that persuades me that this circumstance, either considered alone or in conjunction with other evidence, particularly the subsequent rip-offs, is significantly cogent on the issue of the identity of Boyd’s killer.
Farrugia’s purported tendency to then perpetrate substantial value drug rip-offs relies on Hamilton’s recent statement and telephone intercepts generated through Operation Bronco. What occurred in the Boyd rip-off transaction is dependent upon the evidence of Newton and inferences to be drawn from call charge records. In order for the prosecution to prove the tendency evident from the Hamilton rip-off alleged as cogent on the issue of identity, it would be necessary to prove there was in fact a rip-off of Hamilton. At the trial it would be necessary to re-litigate the Hamilton offending in order to show that there was a tendency to rip-off.
That Hamilton was ripped-off for $180,000 will be in issue. A significant ancillary dispute will be opened up. The prosecution rely on a statement it attributes to Farrugia in an intercepted telephone call on 14 December 2001 when a person was heard to say, in reference to Hamilton, ‘Do you know who my next victim is … the fucking Oz’.[20] Not only does Farrugia deny that those were his words, but a co-offender in the Hamilton offending, Shane Spratling, has confirmed that he made that statement. No particular motive for the kidnapping and reckless conduct endangering life had been put forward by the Crown on the kidnapping plea. As noted above, in his later statement in November 2012, Hamilton identifies the motive for his kidnapping as being that he was a ‘lagger’ because he had reported people to the Homicide Squad. Counsel for Farrugia correctly points out that the ‘lagger motive’ would need to be negated before a jury might find that the motive for that offending was a rip-off. Absent that motive, the Hamilton incident does not demonstrate a tendency that might inform tendency reasoning processes, that is to act in a particular way or to have a particular state of mind.
[20]This is accepted as a reference to Hamilton.
The prosecution’s contention that the tendency evidence has significant probative value makes assumptions about what happened to Boyd and involves circular reasoning. In written submissions, the prosecution contended that in respect of both Boyd and Hamilton, Farrugia was prepared to kidnap them and deal with them by violent means. That submission assumes Farrugia’s involvement in what happened to Boyd, assuming the issue to which the tendency evidence is directed. Counsel for Farrugia suggested that the written submissions exposed the fair reading of the notice. In oral submissions, the prosecutor emphasised that it was Farrugia’s dealings with Hamilton, not Boyd, that establish the tendency. Tendency reasoning needs to be clearly articulated. That emphasis does not, in my view, eliminate circularity of reasoning. The circular reasoning is drawn from the tendency notice which alleges that Farrugia had a tendency to (iii) kidnap the victim and take them to a ‘proximate’ remote location and (iv) to deal with each victim by violent means, in that in each case he personally discharged a firearm at the victim from behind a number of times.
Counsel for Farrugia submitted that impermissible circularity of reasoning is present because the notice suggests that there was a kidnap of Boyd, which is a fact in issue, and that was done by Farrugia. Secondly, that Farrugia in each case personally discharged the firearm at the victim from behind a number of times. The reasoning assumes that it was Farrugia that discharged the firearm from behind Boyd. The allegation that Farrugia kidnapped the victim (Boyd and Hamilton) and took them to a proximate location cannot be used in order to establish that Farrugia has a tendency that is significantly cogent on the issue that he kidnapped Boyd. All that can be said is that in the case of Hamilton, Farrugia had a tendency to kidnap or to discharge a firearm, to act in a particular way. It cannot be suggested that Farrugia has a tendency to act in that particular way because he kidnapped, or discharged a firearm at, Boyd. Yet, this is what the notice, as it is worded, can suggest. Cogency cannot be attributed to evidence tendered to establish a primary fact by assuming that the fact has been proved.
In Sutton v R,[21] Brennan J was discussing the principle, expressly preserved by s 97, that the cogency of evidence of the commission of other offences is to be ascertained by reference to the whole body of proof in the case. His Honour warned[22] that although it is right to determine the admissibility of a piece of similar fact evidence by reference to the whole of the body of proof, it is wrong to regard the body of proof as encompassing the guilt of the accused - the very issue which is to be proved by inference from the facts directly proved or provable in evidence. Brennan J said:[23]
If proof of the fact is assumed in order to give cogency to similar fact evidence and thereby to make it admissible to prove the same fact, there is an impermissible circularity in reasoning….It is a canon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact. That canon has a particular application in determining the cogency and hence the admissibility of similar fact evidence. When the Crown seeks to tender similar fact evidence as the foundation for inferring a fact to be proved in a trial, it is erroneous to assume the truth of the fact to be proved in determining the cogency of the evidence. That is a proposition of general application…
[21](1984) 152 CLR 528.
[22]Ibid, 550.
[23]Ibid, 552.
As I have stated above, once the circular reasoning is discounted, no relevant tendency to kidnap or shoot as alleged can be seen as established, or as deserving of significant probative value.
There are other areas of dispute that affect assessment of the reliability of the drug rip-off motive evidence. Hamilton’s recent statement might be accepted as truthful for this exercise but it is reasonably open on this assessment to question his reliability, either by reference to his earlier statement or to matters raised in his later statement. For example, Hamilton is unable to account to those who financed him for the money that was ripped-off, some of whom he describes as representatives of a major crime family, yet that loss appears to have been shrugged off by them.
Whether considered in isolation or in its totality, I am not convinced that the evidence identified in the tendency notice discloses an identifiable pattern of behaviour sufficient to ground tendency reasoning on the issue of identity, nor, for the reasons I have already given, am I persuaded that any of the particular characteristics of the alleged tendency will be made out on the evidence. In particular, the essential characteristic of the tendency alleged by the prosecution, that Farrugia conducted drug rip-offs, is based on disputed facts that would need to be litigated at the trial. Whether or not the evidence is tendency evidence is contingent on the prosecution establishing that Hamilton was ripped-off. A jury may not be satisfied beyond reasonable doubt that there were no alternative explanations open as to why Hamilton was kidnapped. The conclusion that Boyd was ripped off by Farrugia retaining his money rather than ripped off by his killer taking his drugs, depends on a rather weak inferential argument developed by a police officer who analysed telephone records. It is contended that because there was no recent telephone activity, as there were on other occasions when there was a sale of drugs, that Farrugia had no intention to supply drugs. This evidence is not reliable, as other inferences are open.
If I am wrong in my conclusion that no tendency is proved, I add that I am not persuaded that the evidence disclosed by the tendency notice is sufficiently cogent to be admitted as proof of identification of Boyd’s killer. I agree with counsel for Farrugia that where tendency evidence is based on a single subsequent event and is sought to be tendered on the issue of identity, cases where such evidence will be considered to have significant probative value are likely to be rare.[24] Neither the circumstances of the Hamilton offending nor those of Boyd’s murder reveal distinctive patterns or modus operandi of a character that would demonstrate significant probative value.
[24]Two examples that are readily distinguishable from this case are R v Dupas (No 2) (2005) 12 VR 601 and Pfennig v R (1995) 182 CLR 461.
There is nothing particularly striking, remarkable, or cogent about the Hamilton incident that persuades me that, for the reasoning processes that are open to a jury in respect of the issue of the identity of Boyd’s killer, the proposed tendency evidence is capable, to a significant degree, of rationally affecting the jury’s assessment of that issue. There is no sufficient pattern, link or underlying unity between the Hamilton offending and the Boyd murder that might otherwise justify admission of that evidence as significantly cogent to rationally affect the probability that Farrugia was Boyd’s killer. Rather, there are significant dissimilarities between the two incidents.
The prosecution conceded other differences that I have not yet mentioned. It suggested that the accused acted alone in respect of Boyd, presumably accepting one of Witness A’s versions of the Farrugia ‘confession’, while Farrugia acted in company in the Hamilton offending. Hamilton was subject to a prolonged assault, but Boyd had no injuries other than gunshots. The prosecution contended that, overall, the similarities were sufficient, in combination with the evidence of Witness A, and the evidence that Farrugia was in a drug-dealing relationship with each of Boyd and Hamilton, to reach the requisite standard of cogency.
Section 97 requires that the cogency of tendency evidence be assessed by the court having regard to other evidence. Such other evidence in this case includes the evidence of Witness A. As I have noted, I am obliged to treat that evidence as truthful for the purposes of my assessment, but I am not obliged to accept that Witness A’s evidence is reliable. I am entitled to assess the reliability of that other evidence.
The prosecution contends that there are some critical pieces of information in Farrugia’s confessional statement which point to its reliability. Farrugia told Witness A that he kidnapped Boyd. Boyd was found at Beatty’s Road, shot in the back of the head. Farrugia describes Boyd’s head exploding, which the prosecution contends is not inconsistent with the pathologist’s evidence. Witness A’s statement suggests that Boyd is choosing to speak to him because Cardona knows something about what happened, and Cardona, who was involved in the drug dealing activities, was in a position to speak against him. There is an odd detail that Farrugia said Boyd was a homosexual, which is untrue, but the prosecution contends that Farrugia knew Boyd had associates that were homosexual, and that fact supports the reliability of the statement.
The prosecution submitted that a striking similarity is not needed. When the actual terms of Farrugia’s confession to Witness A is combined with the two patterns of behaviour, the confession makes the link explicit. Thus, the prosecution submitted that the evidence of the Hamilton kidnapping and shooting is significantly probative of the issue of who killed Boyd, or that the accused man was the shooter of Boyd, because of the established similarities.
Counsel for Farrugia submitted, and the prosecutor did not demur, that there are significant issues both as to truthfulness and reliability with the evidence of Witness A. Witness A had ample opportunity, basis and motive to concoct Farrugia’s confession. Counsel submitted, on the issue of the reliability of Witness A’s evidence, that the admissions that Witness A claims to have heard consist of information that was available to him independently of the confessional conversations. That is so because Witness A knew Farrugia was serving time for the Hamilton offending and had discussed his offending with him. Witness A knew the generalities but not the details from that source. This is why Witness A says that Farrugia said ‘I did the same to Boyd as I did to Hamilton’ without any corroborating detail. Witness A had discussed the Morans with Farrugia, who had expressed his concern to Witness A about Cardona and Hamilton making a statement against him.
The cross-examination of Witness A at committal reveals his informer status and his motives and inducements for giving evidence. It seems to me to be inevitable that the trial judge will give a s 165 warning to the jury because his evidence is potentially unreliable and that such a warning provides a real measure to the probative value of the evidence of Witness A. As counsel for Farrugia submitted, if a jury has to be told how potentially unreliable and dangerous it is to rely on Witness A’s evidence, then for the purposes of assessing its probative value in combination with the Hamilton evidence, Witness A’s evidence should be regarded as unreliable and incapable of supporting the tendency evidence. Witness A cannot support the tendency because he already knows about the Hamilton matters. It therefore can’t be said that his evidence independently supports the Hamilton evidence. The crux of the confession was the conclusion that he did exactly to Boyd what he did to Hamilton.
The prosecution rejected the contention that there can be any argument about concoction and invited me to leave that assessment to the jury. The prosecutor relied on RHB v R,[25] in which an interlocutory appeal on the admission of tendency evidence was refused. The case related to sexual offences against a granddaughter, and the tendency evidence related to conduct of the accused against his daughters. The Court of Appeal considered the trial judge to have been correct in both assessing significant probative value, and in balancing probative value and prejudicial effect. The applicant’s contentions of contamination or innocent infection of the evidence were misplaced because the applicant had admitted the offences against his daughters by his plea of guilty to charges involving them. There was no doubt about the accuracy of that evidence. That circumstance is quite distinct from the admission by Farrugia’s plea of the Hamilton offending. Farrugia does not admit any confession to Witness A. He denies it. In my view, RHB does not support the prosecution submission.
[25][2011] VSCA 295.
The correct approach is stated in Dupas and set out above. In Dupas, the Court of Appeal also observed:[26]
The ALRC in the appendices to its Report 26 said of confessions and admissions that:
Reliability goes to weight, but an unreliable confession is of low probative value, which may be outweighed by ‘prejudice’. If the concept of prejudice is limited to taking into account irrelevant considerations the discretion would not be applicable, but if it extends to potential misestimation of probative value by the jury then exclusion may be justified.
The judgments in R v Swaffield confirm that the reliability of a confession may provide a basis for the exercise of the exclusionary discretion. It was recognised that the Christie discretion may apply to a confessional statement where the probative value is small but the undue prejudice which it is likely to produce is substantial. Obviously, if a jury accepts evidence of a confession or admission to be truthful, and its content to be reliable and accurate, its probative value will likely be substantial. It was the uncertainty attached to its reliability which, as Toohey J in Duke v The Queen recognised, provides the basis for concern and which may render its probative value quite small.
[26][2012] VSCA 328, [121]-[122].
In the assessment of whether the tendency evidence is significantly probative as to the issue of the identity of Boyd’s killer, I remain unpersuaded that the evidence of Witness A can be characterised as sufficiently reliable to weigh in favour of admissibility. In my view, there is a real risk that a jury might attach more weight to that evidence than it deserves having regard to those matters that affect its reliability. In that sense also, its probative value is outweighed by its prejudicial effect, a matter that I will now turn to.
I do not consider that the probative value of the tendency evidence, if accepted as satisfying the significant probative value test, substantially outweighs the prejudicial consequences for Farrugia so as to render its admission just. The prosecution submitted that the trial would be one where the context of drug dealing involving both the victim and the accused would, with proper direction, neutralise such concerns. The jury will necessarily hear of Farrugia’s involvement in large scale drug trafficking and of his associations with other criminals including Witness A, and of Boyd’s involvement as a purchaser and ‘cook’. The fact that an accused has criminal antecedents would not divert the jury from a proper consideration of a murder charge. The court should expect that a jury will diligently attend to the evidence and follow the judges’ directions as to their consideration of that evidence.[27]
[27]KRI v R [2011] VSCA 127, [63]; Dupas v The Queen [2012] VSCA 328, [114].
The prejudicial effect that the tendency evidence is likely to have will be substantial. The tendency evidence discloses to the jury that the accused pleaded guilty to kidnapping a man, violently assaulting him for an extended time, tying him up, and then shooting in his direction 5 or 6 times as he was escaping. Would the jury reason that Farrugia was firing shots to kill or really seriously injure Hamilton? This aspect of the Hamilton offending is different from the background narrative of drug dealing in which the Boyd murder occurs. It was not the prosecution’s case in the Hamilton matter, and the evidence cannot establish a tendency to murder. But the significant risk that a jury might misuse that evidence in this way must be acknowledged. Counsel submitted there would other prejudicial matters introduced by the proposed tendency evidence about the Hamilton offending that are different to any prejudice from the drug dealing narrative that I need not discuss. I am not persuaded that this aspect of the evidence would be amenable to a direction that would avoid the risk of a jury reasoning inappropriately. There is a significant risk that Farrugia would not receive a fair trial.
Further, as I have stated, there are disputed contentions of fact, that underpin the prosecution’s tendency reasoning. The admission of telephone intercepts from Operation Bronco would be required, for example, to prove whether Hamilton was ripped off. These are graphic. One intercept has Mr Farrugia saying words to the effect, ‘I let four or five shots go, I hope I hit him’. There are a number of players in that investigation that are not otherwise relevant to the prosecution’s case and the jury will need to deal with that significant collateral issue. The likelihood of the jury’s attention being diverted from the issue of Boyd’s murderer to what actually happened and the reasons as to why it happened in respect of Hamilton’s kidnapping creates a further real risk of prejudice, through the jury reasoning inappropriately in seeking to resolve complex issues that are, at best, collateral to the real issues.
A significant difficulty for the jury where it might attach greater weight to the tendency evidence than it deserves, or might misuse the evidence, is in how it uses the evidence. The jury would be warned that the tendency evidence cannot be used to reason that what happened to Hamilton is what happened to Boyd in the 11 hour gap in the prosecution’s evidence. But there would be a real temptation for the jury to do precisely that, to use the Hamilton offending to fill the gap. There is also a danger that the jury may reason that the Hamilton tendency evidence supports or corroborates the confession to Witness A. Counsel for Farrugia foreshadowed that if the tendency evidence is excluded, further application would be made to exclude the statement ‘I did to Boyd what I did to Hamilton’ from Witness A’s evidence, as that statement is independently severable from the confessional statement.
In undertaking the balancing exercise required by s 101(2) of the Act, I am satisfied that there is a real risk of substantial undue prejudice to Farrugia that would not be substantially outweighed by any significant probative value, assumed at its highest, of that evidence on the issue of the identity of Boyd’s killer.
For these reasons, the accused’s objections to the tendency notice are upheld, the evidence disclosed by the Notice is not admissible under the Tendency Rule, and cannot be adduced as tendency evidence against the accused.
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