R v Freeman (Rulings 1-3)
[2015] VSC 228
•19 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0136
Between:
| THE QUEEN | |
| and | |
| ANTHONY JAMES FREEMAN | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 18 & 19 May 2015 | |
DATES OF RULINGS: | 18 & 19 May 2015 | |
CASE MAY BE CITED AS: | R v Freeman (Rulings 1-3) | |
MEDIUM NEUTRAL CITATION: | [2015] VSC 228 | |
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CRIMINAL LAW – Jury trial – Accused charged with murder – Rulings on admissibility of evidence – Evidence Act 2008 (Vic), s 137:
(1) Admissibility of photographs showing blood on accused’s hands after killing – Photographs also reveal tattoo on palm of accused’s right hand spelling the words “PUSSY LICKER” – Whether danger of unfair prejudice to the accused – Alternative means of leading the relevant evidence – Photographs excluded.
(2) Admissibility of photographs showing blood spatter in flat in which deceased killed – Whether photographs necessary to support basis for expert’s opinion on blood spatter – Whether photographs admissible in any event – Whether danger of unfair prejudice to the accused – Photographs admissible.
(3) Admissibility of evidence that, either one hour before or around the time of the killing and in the same block of 18 flats in which the killing occurred, a male voice was heard to utter a threat to kill – Whether evidence capable of proving, beyond reasonable doubt, that the accused uttered the threat and at the time of the killing – Whether, even if capable of such proof, there is an unacceptable risk that the jury might reason impermissibly even with careful directions – Evidence excluded.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy QC with Ms R. Harper | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Victoria Legal Aid |
HIS HONOUR:
Introduction
Anthony James Freeman is charged with the murder of Yosan Solomon at Prahran on 21 November 2013.
Prior to empanelment of a jury, I heard applications by the accused to exclude three pieces of evidence the prosecution proposed to lead at trial. I ruled on those applications, gave ex tempore reasons for my decisions and indicated I would publish more detailed reasons at a later time. These are those reasons.
Prosecution case
Before setting out my reasons, I shall summarize, very briefly, what I understood to be the prosecution case prior to empanelment.
The deceased was born in Ethiopia but had come to Australia with her family as a child. She moved to Melbourne when she was aged 18. A the time of her death, she had been living in Port Melbourne and was aged 35.
The accused, who was aged 44 at the time, was living in a Department of Human Services studio apartment at Unit 8, 16 Essex Street, Prahran. The unit is on the middle level of a three-storey block of 18 units.
In the early hours of 21 November 2013, the accused was in his unit. The deceased was also present. They had been in a relationship for about a month.
At about 12:30 a.m., Rodney MacPherson, a neighbour in the flat above, heard the accused arguing with an African female. Mr MacPherson heard some thuds and then a female whimpering. He and another neighbour then heard the accused yelling outside “I’ve killed her.”
At 12:36 a.m., the accused rang Triple 0. He told the operator, among other things, his address, that he had stabbed the deceased in the neck, that they were having sex and that she was dead.
At 12:39 a.m., the accused rang his sister, and told her that he and the deceased were having sex when she said words to the effect of “What’s it like fucking a 13-year-old?”. He said that he “just went off”, saw a knife, grabbed it and stabbed her “straight in the throat”.
At about 12:50 a.m., police arrived and saw the accused on the balcony talking on a mobile phone. He yelled out to a policeman, “I’ve killed her. She’s dead.” He told two other police officers, “She’s dead. Yosi, my missus, I stabbed her in the neck.”
Police found the deceased lying on her side partly on a mattress and partly on the floor of the lounge/bedroom area of the unit. She was naked from the waist down, and had a wound to her neck. There was a large amount of blood on her, the floor and the walls. Her body was warm but she was dead.
A kitchen knife was found on the floor of the kitchenette in front of the oven. DNA analysis suggests blood on the blade came from the deceased. Trace DNA, possibly from both the accused and the deceased, was found on the handle.
The medical evidence is that the deceased died as a result of a single stab wound to the right side of her neck, which severed the carotid artery.
Ruling No. 1: Photographs showing blood (and tattoos) on accused’s hands
The first application by the accused was to exclude from evidence two photographs[1] of the accused, taken shortly after his arrest, showing that his hands were bloodied.
[1]Photographs 7 and 8 of Book C.
Mr Marsh, who appeared for the accused, did not object to evidence that the accused had blood on his hands when arrested. Indeed, that fact was not disputed. His concern about the photographs was that they also revealed that, on his right hand, the accused had a crudely written tattoo spelling the words “PUSSY LICKER”. Mr Marsh submitted that there was an unacceptable risk that this particular tattoo would cause jurors to think poorly of the accused. In addition, he submitted that the crude workmanship might suggest the tattoo was done when in gaol. He also submitted that, by means other than the photographs (such as an admission of fact by the accused), the prosecution still could adduce evidence that, when arrested, the accused had blood on his hands.
Ms Harper, who was led by Mr Gyorffy QC for the Crown, conceded that one of the photographs might be removed from the booklet, as it showed the accused in handcuffs and was therefore unduly prejudicial on that account, but submitted that the other photograph should remain, since it was not so afflicted. In her submission, the words in the tattoo would not be calculated to cause jurors to think poorly of the accused, and the nature of the artistry would not be linked to time spent in gaol.
I was not so much persuaded that there was any meaningful risk of the jury thinking the tattoo might have been penned in gaol, for there seem to be plenty of crudely drawn tattoos about the place nowadays. However, I was satisfied that one or more jurors might think sufficiently poorly of a person who was prepared to have his hand tattooed with the words “PUSSY LICKER”, in block letters no less, as to distract them from their task. In circumstances where the evidence of bloodied hands could be adduced in another way, the probative value of the photographs was outweighed by the danger of unfair prejudice to the accused.
Accordingly, I ruled that the evidence must be excluded pursuant to s 137 of the Evidence Act 2008 (Vic).
Ruling No. 2: Photographs showing blood in apartment
The second application by the accused was to exclude from evidence several, but not all, of 32 photographs[2] showing voluminous amounts of the deceased’s blood in various places in the accused’s apartment.
[2]Photographs 66-97 of Book A.
Mr Marsh submitted that the cumulative illegitimate prejudicial effect of the images, which were gruesome, exceeded their probative value. While the photographs in question showed markers next to the deposits of blood by reference to which the blood spatter expert would give his opinion about the deceased’s possible position in and movement about the flat at the time of and after the stabbing, Mr Marsh submitted that the expert could give that evidence by reference to what he observed without resort to those photographs, or at least by reference to fewer of them. Further, as counsel pointed out, the expert’s opinion as to in which of two places the deceased was located when she was stabbed was inconclusive in any event. In those circumstances, counsel submitted that, in having the photographs in evidence, the prosecution would be inviting the jury to conduct their own analysis of the position in which the deceased was stabbed, which was just not possible. Mr Marsh conceded that some photographs might be admitted into evidence in order to assist in explaining the expert’s opinion, but he did not point to any particular photographs that should be excluded.
Ms Harper advised that it was the prosecution’s intention that the blood spatter expert be taken to each of the photographs in order to assist in explaining his opinions, and submitted that such an approach was necessary for the jury to understand and assess those opinions, which were based on the information contained in all of the photographs, not just some. Further, she submitted that the photographs would fall to be considered in light of the evidence of a neighbour, who was expected to say that he could hear thumping in a particular corner of the apartment, from all of which an inference might be drawn as to where, and in what circumstances, the stabbing took place.
While I accepted Mr Marsh’s submission that there may be a cumulative prejudicial effect in the number and nature of the photographs depicting blood in the unit, I was also satisfied that there was probative value in the photographs and that that probative value was not outweighed by the danger of unfair prejudice to the accused. The probative value of the photographs is in showing the factual basis for the expert’s opinions and also in arming the jury with the necessary information, coupled with other evidence such as the neighbour’s evidence as to a thumping noise, to allow the jury to assess what occurred in the unit, and where it occurred. At one level, that there was a voluminous amount of blood in the unit is simply indicative of that which the accused admits – namely, that he stabbed the deceased in the neck and that her carotid artery was severed. Such illegitimate prejudice as there might be in seeing numerous photographs of bloodied parts of the unit is more than outweighed by the probative value of the evidence. Accordingly, I ruled that the evidence was not to be excluded pursuant to s 137.
Having indicated that was my ruling, I nevertheless suggested that, overnight, counsel might discuss some culling of the photographs where, for example, there might be an element of repetition and the prosecution’s purpose in leading the photographs would not be undermined by the culling. I gave an example of what I considered to be one photograph that might be said to be substantially repetitive of another.
The next day, counsel advised they had agreed on the removal of 12 of the photographs but not on six others (photographs 67, 69, 70, 74, 93 and 94). Mr Marsh submitted these six were essentially duplicates of photographs that were agreed to remain in the book.
Ms Harper submitted that each of the photographs added something that the agreed inclusions did not. Number 67 shows a stain with a ruler beside it, so that its size could be gauged, whereas the photograph to remain in evidence (number 68) showed a perspective from further way, sans ruler, that placed the stain in context. Numbers 69 and 70 show close-up views of distinct patterns of spatter that are not as apparent in the longer, more contextual, view shown in number 68. Number 74 shows staining under a chair which is not depicted in a related photograph remaining in the book (number 73). Numbers 93 and 94 show close-ups of two different types of staining that are not so apparent when the broader view of those stains is shown in another photograph remaining in the book (number 92).
In my view, while Mr Marsh was correct to submit there was an element of duplication between the disputed photographs and those that would be in evidence, the reasons proffered by Ms Harper for inclusion of each of the six photographs were sound, as each photograph did have its own additional probative value. Further, that additional probative value was not outweighed by any danger of unfair prejudice the accused might suffer from the admission of any or all of those six photographs. Accordingly, I ruled that those six photographs were not to be excluded pursuant to s 137.
Ruling No. 3: Threat heard by accused’s neighbour
The third application by the accused was to exclude the proposed evidence of the accused’s neighbour, Paul Smith. On the night in question, Mr Smith heard a male voice from another apartment say, “I’m gonna get you, I’m gonna fucking kill you.”
Mr Marsh submitted that, for several reasons, it was not open to say that the accused uttered the threat or that, if he did, such evidence was of any or sufficient probative value, when compared with the danger of unfair prejudice to the accused, as to render it admissible.
First, in his initial statement to police, Mr Smith said that he heard the threat at 11:30 p.m., which assertion was reflected in the Summary of Prosecution Opening. Yet the prosecution case, based on other evidence (including Mr MacPherson’s evidence), was that the stabbing occurred at about 12:30 a.m., an hour later. There was no other evidence of a threat at 11:30 p.m., nor was there any evidence of any threats between 11:30 p.m. and 12:30 a.m. Thus, even if it could be said to have come from the accused, the threat did not appear to be linked to the charged incident.
Secondly, having said in his initial statement that the threat could have come from Unit 9 or 10, in his second statement Mr Smith said it could have come from further away (which encompassed Units 7 and 8, the latter of which was the accused’s unit). Mr Smith’s unit was on the same floor as Units 7, 8, 9 and 10. However, that second statement came only after Mr Smith had learned from police that a person was killed in Unit 8. Further, at the committal hearing, Mr Smith conceded that he would only be guessing to say from where the noise came.
Thirdly, Mr Marsh submitted that the following factors also showed it would not be open to a jury to exclude the reasonable possibility that the threat was made by someone other than the accused: First, there was no suggestion in Mr Smith’s evidence that he was identifying the accused’s voice (whereas Mr MacPherson, who heard the accused at 12:30 a.m., did do so). Secondly, this incident occurred in a building containing 18 occupied units, with six units on each level, and a stairwell. The threat could have been uttered by anyone in another unit or in the stairwell or near the block of flats. Finally, while police had spoken to occupiers of some of the other units, at least one refused to speak to police.
Mr Gyorffy made several points in response. First, he accepted that, if it was reasonably possible that the threat was uttered by the accused at 11:30 a.m., that evidence could not be used by the jury for the purpose for which he intended to lead it – namely, as going to proof of the intention of the accused at the time of the stabbing (which was the principal issue to be tried). Secondly, however, he submitted that it was open to be satisfied, beyond reasonable doubt, that Mr Smith was mistaken in asserting the threat was uttered at 11:30 p.m. and that in fact what he heard occurred around 12:30 a.m., just preceding the stabbing. In particular, Mr Gyorffy pointed to the fact that, in his second statement, Mr Smith said that the police came within half an hour of the threat, and also to the evidence that police arrived just before 1:00 a.m., which suggested the threat was made soon before 12:30 a.m., and therefore just prior to the stabbing.
Thirdly, Mr Gyorffy also conceded that, even if the threat could be shown to have been made at around 12:30 a.m., unless the jury could be satisfied beyond reasonable doubt that the threat was made by the accused, it should not be led. Fourthly, however, he submitted that, in circumstances where there was no evidence pointing to anyone else as a possible candidate for uttering the threat, and where there would be evidence of the threat occurring around 12:30 a.m. and therefore more or less contemporaneously with the stabbing, it would be open to conclude, beyond reasonable doubt, that it was the accused who uttered the threat.
While I regarded this as a finally balanced issue, in the result, I was satisfied that the evidence should not be admitted. There were 18 apartments, and a stairwell, in the building in which the stabbing occurred. While it would be open to a jury to exclude the possibility that the threat came from some of those units – for example, Mr Smith’s own unit, Mr MacPherson’s unit and the units of others who were spoken to by police – it would not be open to exclude the reasonable possibility that the threat came from a unit other than the accused’s unit or from elsewhere in or around the building.
I did not accept that it would be appropriate to reason, from evidence that the accused stabbed and killed the deceased, which is not in dispute, that the accused was indeed the one who uttered the threat. In my view, such reasoning would be fraught, at best, and circular, at worst. Indeed, even if I am wrong in concluding that, on the bare facts, it would not have been open to exclude the reasonable possibility that someone other than the accused uttered the threat, I consider that, if the evidence were led, there would remain an unacceptable risk that, despite my giving directions designed to avoid impermissible reasoning, the jury would be influenced, impermissibly, by the fact that the accused stabbed and killed the deceased when considering whether he was the one who uttered the threat beforehand.
For those reasons, I concluded I was compelled to exclude the evidence of Mr Smith pursuant to s 137 of the Evidence Act.
Postscript: After I delivered this ruling and my ex tempore reasons, a jury was empanelled and evidence was given on the trial by Mr MacPherson. He said that he would often hear “lots of arguments from people there [at the flats]”; they occurred “outside, … in the street, … on the grass, … in the next flats, … anywhere”.[3] He said that “it gets to be part of life and you just [turn] your TV up and battle on with it because it was so common”.[4] Such evidence fortifies my view that it was not open to exclude the reasonable possibility that the threat Mr Smith heard came from a person other than the accused in or around the flats and that, in any event, it would not have been safe to allow Mr Smith’s evidence to go to the jury.
[3]T 136-137.
[4]T 136.
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