R v Fieldman (Ruling No 1)
[2010] VSC 257
•7 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BENDIGO
CRIMINAL DIVISION
No. S CR 2008 1737
| THE QUEEN |
| V |
| TROY ANTHONY FIELDMAN |
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JUDGE: | KAYE J | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 7 June 2010 | |
DATE OF RULING: | 7 June 2010 | |
CASE MAY BE CITED AS: | R v Fieldman (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 257 | |
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CRIMINAL LAW – Evidence – Culpable driving – Whether previous criminal record of deceased admissible – Deceased riding stolen bike – Factual issue whether deceased suddenly slowed bike before impact – Relevance of prior convictions to possible decision by deceased to try to access escape route – Evidence admitted – Evidence Act 2008 (Vic) ss 55(1), 135(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Barbagallo | Office of Public Prosecutions |
| For the Accused | Mr I Hill QC with Ms A Fox | C D Traill Lawyers |
HIS HONOUR:
In this case, the accused man is charged with one count of culpable driving causing the death of Dennis Yannapoulos on 25 December 2006.
Shortly before the incident which caused Mr Yannapoulos’ death, the accused man’s trail bike had been stolen from his property at Kyneton. When the accused discovered that theft, he also heard the sound of the bike travelling on the highway. Accordingly, he set off in pursuit of it. The accident, which resulted in the death of Mr Yannapoulos, occurred at the western end of the Campaspe River Bridge at Burton Avenue which becomes Piper Street at that point at Kyneton. It occurred when the front of the station wagon driven by the accused man came into collision with the rear of the trail bike which was then being driven by Mr Yannapoulos. In the course of the collision, Mr Yannapoulos fell to the ground and he died at the scene of injuries which he sustained as a result of the collision.
The issue which has been raised for me is whether counsel, on behalf of the accused, is entitled by cross-examination to adduce evidence as to a fairly extensive list of previous criminal convictions of the deceased man, Mr Yannapoulos. In particular, the issue which has been raised is whether that evidence would be relevant to any fact which is in issue in this case.
Ms Fox, who appears with Mr Hill of Queen’s Counsel, on behalf of the accused has submitted that the evidence as to the deceased’s man previous convictions is relevant to the manner in which he was driving the motor bike almost immediately before the moment of impact.
At four places, in his record of interview, in his answers to questions 83, 92, 193 and 361, the accused told the police that almost immediately before impact, Mr Yannapoulos appeared to either slow down or stop, as if he intended, or might have been intending, to turn left from the roadway onto a track which was nearby. Ms Fox submitted that the defence wished to contend that there was a reasonable possibility that immediately before the collision Mr Yannapoulos dramatically slowed his motor bike, because he was looking for an escape route. In that connection, she referred me to the evidence that there is a path which can be accessed immediately north of the highway and which leads along the Campaspe River. That path passes south under the bridge and from there access can be obtained to streets such as Powlett Street. Ms Fox submitted that evidence of the convictions of Mr Yannapoulos is relevant because it adds to the probabilities that he may have been aware that if he was caught with a stolen bike it was likely, in those circumstances, that he would receive a term of imprisonment. She submitted that the previous criminal history of the deceased thus provides an explanation as to why he might have wished to access the escape route along the path, rather than continue along the highway.
Pausing there, it is clear that the issue whether, Mr Yannopoulos slowed down his vehicle immediately before impact, is a very relevant, and important, issue in the trial. If the jury concluded that there is a reasonable possibility that Mr Yannopoulos did slow down the bike in that way, it would provide an explanation as to why the accused man came into collision with him. Thus, the evidence would be relevant to the issue of the causation of the accident. Indeed in this respect the Crown case was opened on the basis that the accused man had deliberately run into the back of the trail bike.
Secondly, Senior Sergeant Bellion has given evidence that on his estimate the speed of the trail bike was 20 kilometres per hour less than the speed of the vehicle driven by the accused man at impact. Clearly if the bike had markedly reduced its speed before impact, that would radically affect Mr Bellion’s calculations of the speed at which the station wagon driven by the accused man was travelling at the time of impact.
As I stated, the argument by Ms Fox is that the evidence of Mr Yannopoulos’ previous convictions is relevant, because it bears on the probabilities as to why Mr Yannopoulos may have sought to access the escape route, rather than continuing along the highway. It was submitted that his long list of previous convictions, including terms of imprisonment, increased the probabilities, or was at least capable of increasing the probabilities, of Mr Yannopoulos intending and be minded to escape rather than risk being caught in the heart of Kyneton while being pursued by another vehicle.
In response, Ms Barbagallo, who appears on behalf of the prosecution, has submitted that the argument made by Ms Fox is based on a number of factual assumptions, which are unsupported by the evidence. In particular, she submitted that there were some seven assumptions contained in that argument, namely:
(1)That the deceased man was an experienced motor bike rider.
(2)That the deceased man stole the bike on which he was riding at the time of the accident.
(3)That the deceased man knew that he was riding a stolen bike.
(4)That the deceased man knew he was being pursued by the accused.
(5)That the deceased was concerned about returning to gaol.
(6)That the deceased knew the trail or track running along the Campaspe River; and
(7)That the deceased was concerned about continuing through the township of Kyneton because it increased his chances of apprehension.
Dealing with each of those issues, it seems to me firstly that it is not relevant whether or not the deceased man was an experienced motor bike rider, in order to sustain the basis of relevance contended for by Ms Fox. It is sufficient if the evidence reveals at least a reasonable possibility that the deceased man had sufficient capabilities to slow the bike and to access an escape route which might have been available to him. The evidence is that the deceased was driving the motor bike on a highway at fairly high speeds on the night of the collision. In those circumstances in my view, would be open to a jury to rationally infer that the deceased had sufficient capabilities in order to perform the manoeuvre attributed to him by the accused in his record of interview.
The second and third assumptions identified by Ms Barbagallo are that the deceased man had either stolen the bike or knew that he was riding a stolen bike at the time of the accident. Again in this case, a jury in the state of the evidence, would be entitled to infer that there is at least a reasonable possibility that the deceased had either stolen the bike, or at the very least, knew that he was riding a stolen bike at the time of the collision.
The bike had been stolen from the premises of the accused on the evening; the deceased had it in his possession, at most, a few hours after that and was riding it along a highway. It will be a matter for the jury whether they accept that the deceased knew that it was stolen, or indeed had stolen the bike. But in my view, it is reasonably open to them to rationally infer that he had done so.
The fourth assumption argued by Ms Barbagallo was that the deceased knew that he was being pursued by the accused man. In my view, it is open to the jury to infer that he may well have had that knowledge. In his record of interview the accused stated that he was driving with his lights on high beam and that he had the motor bike in his view. Indeed on his record of interview he was closing on the bike, shortly before the accident.
It is also relevant that when the accused came out of Deep Lead Lane, he first turned to the left to travel in a westerly direction and he then executed a U-turn when he saw the motor bike travelling east towards Kyneton. He then pursued the motor bike, each of them overtook a vehicle that was driven by the witness Erin Lewis and during that period of time the accused as I stated, appears to have closed in on the motor bike.
In those circumstances it would be open to the jury to rationally infer that the deceased might well have at least apprehended that he might have been followed and pursued at the time of the accident.
The next assumption identified by Ms Barbagallo is that the deceased man was concerned about going to gaol. She submitted that there was nothing in the deceased man’s criminal record which would suggest he was concerned about being incarcerated. In fact, she submitted, all the evidence is to the contrary and that his previous convictions demonstrate that gaol was no deterrent to him.
In my view, Ms Fox’s response to that is appropriate. It may well be that the previous terms of imprisonment did not act as a deterrent to Mr Yannopoulos, but that does not mean that he may not have been concerned about serving another term of custody. I must say that I would think that a jury would find it rather startling that any person would not be concerned about going to gaol, even a person with a reasonably substantial list of previous convictions. Thus, in my view, it would be open to the jury to act on the basis that the deceased, particularly given his list of previous convictions, did have a real concern about going to gaol if he was caught.
The next and sixth assumption, argued by Ms Barbagallo, is that the deceased man knew of the trail or track running by the Campaspe River. In respect of that matter, the defence would be relying on a process of inference. They would argue that the track was reasonably obvious to anyone familiar with the area, and that from his driving on that night, it would appear Mr Yannopoulos had at least some familiarity with the area. The defence will also point to the fact that Mr Yannopoulos’ brother lived in Powlett Street, which can be accessed from that track.
Again, in my view, it would be open to the jury to act on the basis that the deceased might have known of the track leading along the Campaspe River. That again is a finding of fact which, in my view, it would be open to the jury.
The seventh assumption, argued by Ms Barbagallo, is that the deceased was concerned about continuing through the township of Kyneton because it increased his chances of apprehension. Ms Barbagello pointed to the evidence of the witnesses Ms Sundblom and Mr Dickey, which indicated that the deceased may well have already been either into, or to the outskirts of, Kyneton shortly before the incident and, indeed, they passed a trail bike driven by a driver without any head gear on shortly before the incident.
In my view, those matters would not, at least, stand in the way of a jury nonetheless logically considering that the deceased may have had a legitimate concern about going into the township of Kyneton, as he approached the bridge just before the accident.
Firstly, as I said, it is open to the jury to accept that the deceased man may well have been apprehending that he was being pursued.
Secondly, the evidence does not show that the person, who was on the trial bike actually entered the township of Kyneton, as distinct from crossing the bridge and then exiting it. And, thirdly, the jury may consider that the person who Ms Sundblom and Mr Dickey saw travelling west out of Kyneton may not have been the same bike rider as the deceased.
In respect of each of the seven matters, which Ms Barbagallo submitted were assumptions, it may well be that the jury do not accept that the facts establish any of those matters, and Ms Barbagallo’s submissions to the jury are ultimately made out. However, in my view, for the reasons which I have just expressed, it would be open to the jury made to draw the conclusions sought by the accused in relation to each of those seven matters as a matter of rational inference. As the judges who are responsible for finding facts in this case, it would be entirely a matter of the jury whether they drew those conclusions or not, but, as I say, in my view it would be open to them to do so.
I turn, then, to the question of the relevance of the evidence sought to be adduced by the accused. Section 55(1) of the Evidence Act 2008 provides that evidence which is relevant in a proceeding is evidence, which if accepted, could rationally affect directly or indirectly the assessment of the probability of a fact in issuing a proceeding.
In my view, that test is at least as broad as the test of relevance at common law, if not more so. Two points could be noted about s 55. First, in order to be relevant, the rational effect of the evidence on the assessment of the probabilities can be either direct or indirect.
Secondly, s 55(1) does not provide that the evidence must affect the probabilities, but, rather, it is sufficient if the evidence could have a rational effect either directly or indirectly on an assessment of the probabilities.
In her submissions to me, Ms Fox drew my attention to a number of cases, in which, at common law, it has been held that previous conduct by a deceased may be relevant to the probabilities whether the deceased acted in a manner described by the accused shortly before the deceased’s death.
Thus, it has been held that evidence of a previous history of violence by a deceased may be relevant as to whether the deceased did act in a violent manner alleged by the accused in a case in which an issue of self-defence is raised. See, for example, Re Knowles[1]; R v Besim[2]; and R v PP[3].
[1][1984] VR 751 at pp 762, 765 and 768.
[2][2004] VSC 168, at paragraph 12 (Redlich J).
[3][2002] VSC 523 at paragraph 10 (Nettle J).
In each of those three cases, the evidence, which was held to be admissible, was considered relevant to prove the propensity of the deceased to behave in a manner, in which it had been alleged by the accused, that the deceased was acting shortly before the deceased’s death.
However, the admissibility of the evidence of previous conduct of the deceased is not confined to evidence adduced for that purpose alone. Rather, that evidence is admitted, if it has the capacity to bear rationally on the probabilities of whether the deceased acted in a manner alleged by the accused. In that way, evidence which might bear on that point is relevant both at common law and under s 55(1) of the Evidence Act.
In this case, as I have submitted, the jury are entitled to infer that the deceased, Mr Yannopoulos, either stole the bike or knew that the bike was stolen. The jury are entitled to infer that at the time of the collision that he believed he was being pursued and the jury are entitled to infer that at that time he knew, or might have known, of the existence of the escape route along the track.
If the jury were to accept each of those propositions from the evidence, in my view the evidence as to the intention of the deceased at the point of the impact in relation to his driving would be relevant. That intention of course could only be proven by a process of inference. In my view, if the jury accepted that the deceased knew he was on a stolen bike, knew that he was being pursued and knew of the escape route, then the evidence as to his previous convictions is capable of affecting a rational assessment of the probabilities, whether the deceased did decelerate shortly before impact in the manner suggested by the accused in his record of interview.
Of its own, theft of a motor bike is not the type of offence in respect of which an offender would ordinarily expect to be sentenced to an immediate term of imprisonment. A jury from its own general knowledge might well be aware of that fact. However, clearly the position would be different if the offender had a substantial history of previous convictions, particularly if they involved previous sentences of imprisonment. From their general knowledge, the jury would be entitled to infer that a man, with such a previous history as Mr Yannopoulos, might well have been concerned that if he had been apprehended with the stolen bike, he may well have faced an immediate term of custodial imprisonment.
Thus, in that way, the previous convictions of Mr Yannopoulos would have the capacity to bear rationally on the assessment of the probabilities, whether immediately before impact Mr Yannopoulos was minded to or felt the need to take the slightly risky course of slowing down, in order to gain access to the escape route which was available to him. In other words, in my view, a jury would be entitled to consider that that fact added to the probabilities that Mr Yannopoulos might have slowed down his vehicle to leave the highway in the manner stated by the accused in his record of interview. For those reasons, the evidence as to Mr Yannopoulos’s previous convictions is relevant.
Ms Barbagallo submitted that if the evidence is relevant, its probative value is outweighed by a potential prejudice to the Crown and therefore it should be excluded under s 135(a) of the Evidence Act. She submitted that the relevant prejudice is that the jury, apprised of the lengthy criminal history of Mr Yannopoulos, might consider that they should not care whether or not the accused was guilty of the offence charged because, as she put it, the value of Mr Yannopoulos’ life was worth less than might otherwise have been the case.
In my view thus stated, the prejudice is most unlikely to arise in this case. Indeed, I would think it inconceivable, even without a direction from me, that a jury would be minded to use the evidence in that way. Such a proposition in my opinion, strikes at the basic instinct of fairness with which juries have carried out their roles throughout the history of the common law.
However, given the concern of the Crown in this case I would be minded to give a direction to the jury that they ought not to indulge in the type of reasoning which Ms Barbagallo is concerned they might be lured into. Again, the history of jury trials in this State is that juries are amenable to, and faithful to, directions of that type.
On many occasions, where relationship evidence is put before a jury, that evidence can be quite prejudicial to an accused, and a direction as to its potential misuse is given to a jury. The history of verdicts in this State is such that that direction is ordinarily sufficient to offset any potential prejudice which might otherwise be occasioned to the Crown.
In my view, if there is any unfair prejudice to the Crown, and indeed, I doubt that that is the case, but if there is, such unfair prejudice would well be offset by an appropriate direction given to the jury. In terms of s 55(1) of the Evidence Act, the evidence is potentially relevant. Whether the jury considered that it bears on the probabilities is a matter for them and not for me, but in my view they are capable of using the evidence in the manner contended for by the accused.
For those reasons, the evidence should be admitted.