R v Gordon
[1999] WASC 210
R -v- GORDON [1999] WASC 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 210 | |
| Case No: | INS:156/1999 | 13 AUGUST 1999 | |
| Coram: | TEMPLEMAN J | 2/11/99 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Prejudicial effect of the 1979 evidence held to outweigh its probative force, and was for that reason inadmissible | ||
| PDF Version |
| Parties: | THE QUEEN NEIL GORDON |
Catchwords: | Criminal law Offences against the person Murder Admissibility of propensity evidence Admissibility of accused prior offence Similar facts relating to pattern of offending said to support identification and intention of accused Predjudical effect outweighed probative value |
Legislation: | Criminal Code (WA) s 279, s 282 |
Case References: | Hoch v The Queen (1988) 165 CLR 292 Perry v The Queen (1982) 150 CLR 580 Pfennig v The Queen (1994-95) 182 CLR 461 R v Chee [1980] VR 303 Arp v R [1998] 3 SCR 339; 166 DLR (4th) 296; 116 CCC (3d) 168 BRS v R (1997) 148 ALR 101 Harriman v R (1989) 167 CLR 590 Martin v Osborne (1936) 55 CLR 367 Maxwell v R (1996) 184 CLR 501 O'Leary v R (1946) 73 CLR 566 R v Anunga (1975) 11 ALR 412 R v Carne (1997) 94 A Crim R 249 R v Dixon, unreported; SCt of NT; 12 August 1999 R v D'Orta-Ekenaike [1998] 2 VR 140 (CA) R v Sims [1946] KB 531 R v Tsingopoulos [1964] VR 676 R v Williams (1992) 8 WAR 265 R v Wilson [1970] VR 693 Reg v Boardman [1975] AC 421 Reg v Kilbourne [1973] AC 729 Rodway v R (1990) 169 CLR 515 Sutton v The Queen (1984) 152 CLR 528 Thompson v R (1989) 86 ALR 1 Webb v R (1994) 13 WAR 257 Wilson v R (1970) 123 CLR 334 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
NEIL GORDON
Catchwords:
Criminal law - Offences against the person - Murder - Admissibility of propensity evidence - Admissibility of accused prior offence - Similar facts relating to pattern of offending said to support identification and intention of accused - Predjudical effect outweighed probative value
Legislation:
Criminal Code (WA) s 279, s 282
Result:
Prejudicial effect of the 1979 evidence held to outweigh its probative force, and was for that reason inadmissible
(Page 2)
Representation:
Counsel:
Crown : Ms E F Vicker & Mr A G Elliott
Accused : Mr D J Ross QC & Mr T J P Cannon
Solicitors:
Crown : State Director of Public Prosecutions
Accused : Aboriginal Legal Service
Case(s) referred to in judgment(s):
Hoch v The Queen (1988) 165 CLR 292
Perry v The Queen (1982) 150 CLR 580
Pfennig v The Queen (1994-95) 182 CLR 461
R v Chee [1980] VR 303
Case(s) also cited:
Arp v R [1998] 3 SCR 339; 166 DLR (4th) 296; 116 CCC (3d) 168
BRS v R (1997) 148 ALR 101
Harriman v R (1989) 167 CLR 590
Martin v Osborne (1936) 55 CLR 367
Maxwell v R (1996) 184 CLR 501
O'Leary v R (1946) 73 CLR 566
R v Anunga (1975) 11 ALR 412
R v Carne (1997) 94 A Crim R 249
R v Dixon, unreported; SCt of NT; 12 August 1999
R v D'Orta-Ekenaike [1998] 2 VR 140 (CA)
R v Sims [1946] KB 531
R v Tsingopoulos [1964] VR 676
R v Williams (1992) 8 WAR 265
R v Wilson [1970] VR 693
Reg v Boardman [1975] AC 421
Reg v Kilbourne [1973] AC 729
Rodway v R (1990) 169 CLR 515
Sutton v The Queen (1984) 152 CLR 528
(Page 3)
Thompson v R (1989) 86 ALR 1
Webb v R (1994) 13 WAR 257
Wilson v R (1970) 123 CLR 334
(Page 4)
1 TEMPLEMAN J: The accused, Mr Neil Gordon, stands charged that on or about 21 February 1999, at Halls Creek, he murdered the woman who was his de facto wife.
2 There is no eye witness to the alleged crime. At the trial, the Crown will seek to prove by circumstantial evidence that the accused inflicted on the deceased the injuries from which she died and that he did so intending to cause her grievous bodily harm.
3 The Crown has given notice of its intention to adduce evidence that in 1979 the accused pleaded guilty to the manslaughter of his then de facto wife in circumstances which are said to be so similar to those of the present case as to render them admissible as similar fact evidence. The defence objects to this course. I am therefore required to rule on the admissibility of the evidence relating to 1979.
4 I have not conducted a voir dire. The matter has been argued on the basis that the evidence would be as set out in the various statements and reports.
5 It will be convenient first, to summarise the evidence relating to the offence charged.
6 According to the Crown, the accused reported the death of the deceased to the police at about 12.30 pm on 21 February 1999, by telephone. The accused is said to have given his name and then said:
"… my wife just died. Can you come down quick?"
7 Two police officers attended at the accused's house some 15 minutes later. One officer asked the accused about the deceased's death. The accused said she had died of a heart attack: that she had complained of a sore chest all night, but had not wanted to go to hospital.
8 The accused is then said to have told the police officer that he and the deceased had been drinking together at Mardiwah Loop until 8.30 pm on the previous day. The accused said he and the deceased had gone to bed together at about 10 pm: that they had showered together in the morning and that the deceased had continued to complain about the pain in her chest.
9 The police officer then asked the accused: "Did you belt her at all?" The accused is said to have replied that he had hit the deceased "… in the face a couple of times", but that he had not hit her in the body.
(Page 5)
10 The accused is said to have continued:
"I heard her coughing this morning and I went inside. I gave her some water and she just spewed it up. She then died there in front of me. I tried to give her mouth to mouth but it didn't work."
11 At about 1.40 pm on the same day, two other police officers arrived at the accused's house. According to their statements, they found the deceased inside the house, lying on her back on a double bed. She had head injuries but there was no sign of bleeding or blood. She was dressed in clean clothes. The body was affected by rigor mortis, suggesting that death had occurred much earlier.
12 About two hours later, the accused was interviewed by police officers at the Halls Creek Police Station. A video recording was made of that interview.
13 From a transcript of the interview, it appears that the accused was asked whether he had a fight with the deceased during the previous night. The accused said that he had punched the deceased in the nose, but that she had not been bleeding. He said:
"I can't … you know, we … cause we both that drunk, I couldn't remember what … what we's was both doing, you know."
14 The accused was asked further questions about the amount of drink which had been consumed. His answers are not clear, and may well be inconsistent. However, there is no doubt that he spoke of drinking moselle and rum. When asked about the deceased's injuries, the accused said:
"Well, I … I do not know. We're drunk … We was both drunk."
15 A little later in the interview, the accused said he had driven the deceased back in his car from the place where they had the fight. He said that during the journey the deceased was "fit as a fiddle": and that she was "still right" that morning.
16 The accused said he saw the deceased take a shower. When asked whether the deceased had any blood on her when she got up, the accused said he had not taken much notice.
(Page 6)
17 The accused said that after the deceased had taken her shower, she called on him to help her dress.
18 The accused said he and the deceased then had a drink of tea and he went outside the house. He said he went back into the house later because the deceased was calling out. He said "She just stopped breathing".
19 A post-mortem examination was carried out on 25 February by Dr K A Margolius. From the examination and the results of subsequent tests, Dr Margolius formed the opinion that the deceased died as a result of multiple soft tissue injuries in association with multiple rib fractures.
20 The post-mortem examination identified a very large number of abrasions and lacerations over the whole of the deceased's body. In addition, there was extensive bruising.
21 When giving evidence at the preliminary hearing, Dr Margolius explained that the deceased had suffered a loss of blood, not from external bleeding, but internally.
22 In cross-examination Dr Margolius said she could not identify a single blow as the immediate cause of death. She agreed with the proposition put to her that death "… was the cumulative effect of a savage beating". She thought it unlikely that the deceased would have been able to shower herself on the day she died: and she did not die of a heart attack.
23 Dr Margolius said also that some of the injuries which had been inflicted appeared to have been caused by a hard object having a corner or edge. She was shown a piece of angle iron, which had apparently been located at a place where the accused said he had been drinking and had assaulted the deceased.
24 Dr Margolius said, in effect, that some of the deceased's injuries could have been caused by such an object.
25 It is not necessary for present purposes to set out the 1979 evidence in detail. It is sufficient to note that if taken at its highest, the following points of similarity emerge between the events of 1979 and those relating to the present case:
1. The deceased had been the accused's de facto wife.
2. Deaths occurred after the accused had been drinking.
(Page 7)
- 3. The accused had been involved in some kind of argument with the deceased away from their home: and the body of the deceased had later been located at home in bed.
4. The accused admitted assaulting the deceased.
5. The accused asserted that the deceased had washed, or been washed before death occurred. In 1979, the accused said he had washed the deceased. In the present case, the accused said the deceased had showered herself.
6. The accused stated that the deceased had changed her clothes.
7. The deceased sustained open wounds to the head but death had resulted from multiple internal and soft-tissue injuries to the body.
8. The deceased suffered fractured ribs.
9. There is evidence that a weapon was used to assault the deceased. In 1979 the weapon was said to have been a tyre pump with stirrups. In the present case there is at least circumstantial evidence that a piece of angle iron was used.
10. The accused approached the police saying words to the effect that his wife had died and requesting their attendance quickly.
11. The accused delayed in calling the police for some time after death.
12. The accused told the police that the deceased suffered from a heart condition.
26 It is the nature and extent of these points of similarity which form the basis of the Crown's submission that the 1979 evidence is admissible.
27 Leading counsel for the accused did not really contest that, prima facie, at least the majority of these points of similarity exist. Counsel's principal submission is that the 1979 evidence, being of a highly prejudicial nature, is inadmissible because it does not constitute a necessary step in the proof of the Crown's case.
28 That submission is founded on a passage in the joint judgment of Mason CJ and Deane and Dawson JJ, in Pfennig v The Queen (1994-95) 182 CLR 461 at 482 - 483:
"Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply
(Page 8)
- the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused (Hoch (1988) 165 CLR, at p 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at p 564). See also Harriman (1989) 167 CLR at p 602). Here 'rational' must be taken to mean 'reasonable' (See Peacock v The King (1911) 13 CLR 619 at p 634; Plomp v The Queen (1963) 110 CLR 234, at p 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect." (my emphasis)
29 That passage is directed to propensity evidence because in Pfennig, the evidence relied on by the Crown had that character. It was evidence about an offence of which the appellant had been convicted previously. The evidence demonstrated that the appellant had a propensity to commit offences of the kind charged, in a manner which was likely to have been adopted by the offender in the later case: see 471.
30 Their Honours pointed out, however, that the principle set out in the above passage derived from Hoch v The Queen (1988) 165 CLR 292, where the discussion "was expressed in terms of evidence of similar facts rather than propensity" (483).
31 In Hoch, the evidence was more appropriately included in the similar fact category because it involved a number of witnesses each of whom gave strikingly similar accounts of indecent dealings by the appellant. It was not sought to adduce evidence of any previous conviction.
32 On that analysis, it is clear that in the present case, the 1979 evidence on which the Crown wishes to rely, is propensity evidence.
33 To return to the joint judgment in Pfennig: their Honours went on to say:
"On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case. That
(Page 9)
- evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence. In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardman [1975] AC, at p 457, that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred according to the criminal standard of proof, that the accused is guilty of the offence charged."
34 The passage in the judgment of Lord Cross which the majority applied is, I think, the following:
"The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true would acquit in face of it."
35 In other words, propensity evidence will not be admissible unless, when taken together with the other evidence, it is likely to satisfy a jury beyond reasonable doubt of the accused's guilt. Not on the basis that he has a propensity to commit offences of the type charged, but because he must be guilty of the actual offence charge.
36 That is why it is usually necessary to identify some highly distinctive conduct in the commission of the earlier offences which is also a feature of the offence charged.
37 The majority went on in Pfennig to set out the role of the trial judge in admitting propensity evidence. After referring to "the criterion of probative force as against prejudicial effect, and thus admissibility" which is derived from Hoch, their Honours said:
"Once that criterion of admissibility is accepted, it is apparent that the trial judge is required to discharge an important responsibility. That point was made by the Supreme Court of Canada in Reg v B (C.R.) [1990] 1 SCR 717; (1990) 55 CCC
(Page 10)
- (3d)1 where it was accepted that the process of balancing the probative value of the evidence against its prejudicial effect was a delicate one. But the trial judge, in making that judgment, must recognize that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence (Sutton (1984) 152 CLR at p 564; Hoch (1988) 165 CLR, at p 296)."
38 In the present case, the Crown focuses on the proposition that the purpose of propensity evidence is to establish a step in the prosecution case. Counsel for the Crown submits that there are two steps. The first is identity: that the accused inflicted on his wife the injuries from which she died. The second is intention: that in so doing, the accused intended to inflict grievous bodily harm.
39 It is submitted that the 1979 evidence is relevant to both of those issues.
40 In relation to identity, counsel submits that because the accused's second wife died in 1999 in strikingly similar circumstances to those in which his former wife died in 1979, whom he admitted killing, the only reasonable inference to be drawn is that the accuse also killed his second wife.
41 Then, in relation to intention, counsel's submission is that because the accused beat his then wife so severely in 1979 that she died, he must be taken to have known, in 1999, that a similarly savage beating would have the same consequences.
42 It is submitted by leading counsel for the accused that in relation to neither step is the 1979 evidence necessary. As to identity, counsel's instructions are that the accused does not oppose the admission into evidence of the video record of interview conducted on 21 February 1999.
43 In the course of this interview, it will be recalled, the accused said, in effect, that he had been with the deceased from at least 8.30 pm on the previous day, until her death. He also admitted assaulting her to a limited extent. There is no suggestion that anyone else was present at the material time or that anyone else inflicted the substantial number of injuries from which the deceased died.
(Page 11)
44 Thus, it is submitted, the identity of the deceased's assailant is not really in doubt: it is not a fact in issue.
45 Counsel relies on the passage in the joint judgment of the Full Court of the Supreme Court of Victoria in R v Chee [1980] VR 303, 309, that:
"Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: ie whether it increases or diminishes the probability of the existence of a fact in issue … If evidence offered has this tendency, it may be said to have probative force."
46 I accept the submission of counsel for the Crown that, strictly, the identity of the deceased's assailant is in issue: there has been no formal admission by the accused. However, in all the circumstances, the degree of probative force of the 1979 evidence in relation to identity seems to me to be slight. The evidence does very little to increase the probability of the existence of a fact in issue. Its probative force is far outweighed by its prejudicial effect. The probative force would be far greater, I think, if the accused had denied being anywhere near the deceased in the final hours before her death.
47 As to intention, it is submitted by leading counsel for the accused that it is not necessary for the Crown to prove the accused must have known that a savage beating would be likely to cause death: because that is common knowledge. Again, I understand the effect of the submission to be that the probative value of the 1979 evidence in relation to intention is far outweighed by its prejudicial effect.
48 I accept that submission. While intention is clearly an issue, I do not think it can be said that because the accused caused the death of his then wife some 20 years ago, by beating her, without having any intention to cause grievous bodily harm, a recent beating which also resulted in death is likely to have been administered with that intention.
49 Counsel for the Crown submits, and I accept, that a long time interval between the relevant events will not necessarily render the evidence inadmissible: Perry v The Queen (1982) 150 CLR 580. However, it seems to me to be a powerful consideration in relation to physical violence by a man who was then in his twenties and is now in his forties.
50 Even if it may be said that the admission of evidence about the 1979 events would increase the probability of a finding that the accused had the
(Page 12)
- necessary intention in relation to the offence charged, I do not think it would have any significant tendency. In other words, I consider that on any view, the probative force of the 1979 evidence in relation to intention would be far outweighed by its prejudicial effect.
51 I therefore consider the 1979 evidence to be inadmissible.
52 I am conscious that in reaching that conclusion I have not answered the question set out in Pfennig for the guidance of trial judges. That question, I think, requires a global view to be taken of the evidence. It encapsulates the question posed by Lord Cross in Boardman, and by the Full Court in Chee. It is whether the propensity evidence, taken together with the other evidence, points so strongly to the guilt of the accused that (as Lord Cross said) only an ultra-cautious jury, if they accepted it as true, would acquit in the face of it. Or as the majority said in Pfennig: whether the inference of guilt is the only reasonable inference in the circumstances.
53 If the 1979 evidence is approached in that way, it seems to me that it cannot be admissible.
54 First, as I have said, I do not think it possible to infer that because the accused caused the death of his wife in 1979, without intending to cause her grievous bodily harm - and that is the effect of the plea of guilty to manslaughter - he must be taken to have intended to cause grievous bodily harm to his wife in 1999.
55 Given Dr Margolius' evidence that no single blow killed the deceased, but that it was a combination of blows, it seems to me that the inference is equally open that if the accused gave any thought to his actions, he was mindful of the risk he was running and attempted albeit unsuccessfully in the result, to ensure that he did not cause grievous bodily harm.
56 I say "if the accused gave any thought to his actions", because I am mindful of the accused's statements in the course of the interview on 21 February to the effect that he did not know what had happened to his wife because they had both been drunk.
57 Dr Margolius' evidence appears to show that the deceased had not been drinking. However, there is evidence from Crown witnesses that the accused had been drinking: and that he may have consumed a substantial quantity of moselle and rum at the material time.
(Page 13)
58 I do not know, of course, what will be the totality of the evidence about the accused's drinking or his state of intoxication. But on the evidence as it now stands, I expect the jury will be required to consider the effect of intoxication in deciding whether or not the accused had the necessary intention.
59 In my view, the jury, properly instructed, would not be assisted by the 1979 evidence in that enquiry. That is because I do not think it could be said that the only reasonable inference to be drawn from the 1979 evidence was that the accused must have had the necessary intention in 1999.
60 In the context of intoxication, the question of intention could be resolved only by a consideration of the evidence about the accused's consumption of alcohol on 20-21 February. And on the evidence as it now stands, there must be a possibility that the jury would have a sufficient doubt about that to acquit the accused of murder.
61 This approach also leads me to the conclusion that the prejudicial effect of the 1979 evidence outweighs its probative value and is therefore inadmissible.
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