R v Hammond
[2019] VSC 135
•6 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0312
| THE QUEEN | |
| v | |
| SCOTT HAMMOND | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Geelong |
DATE OF HEARING: | 4 March 2019 |
DATE OF RULING: | 6 March 2019 |
CASE MAY BE CITED AS: | R v Hammond |
MEDIUM NEUTRAL CITATION: | [2019] VSC 135 |
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CRIMINAL LAW – Pre-trial ruling – Murder – Child Homicide – Tendency evidence – Whether admissible – Issue in the trial is identity of the person inflicting injury – Mother of the child alternative suspect – No evidence establishing close similarity with offence conduct – Not significant probative value – Prejudice where accused charged with murder – Evidence not admitted – Evidence Act 2008 (Vic) ss 97, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Mahady with Mr T Bourbon | Office of Public Prosecutions |
| For the Accused | Mr S Bayles with Ms E Clark | Stary Norton Halphern |
HIS HONOUR:
Scott Hammond is charged with the murder of his son, Braxton Hammond, and, in the alternative, charged with child homicide. Those charges arise out of circumstances which occurred on or about 15 October 2011, and were followed by the child’s admission to the Colac Hospital and subsequent transfer to the Royal Children’s Hospital. He remained on life support in the Critical Care Unit until his death on 23 October 2011. At the time of his death, the child was 11 weeks old.
The written prosecution opening puts the case as follows:
The Crown case is that the Accused caused fatal injury to Braxton by way of shaking or some other means whilst Braxton was in his care on the evening of 15th October 2011 after the mother Nakita Cook had left the house.
In response to that prosecution opening, the defence indicates:
The central issue for trial will be whether the prosecution can prove that the accused Scott Hammond caused the injuries that led to the death of Braxton Hammond.
The trial of the accused is about to commence, though a jury has not yet been empanelled. The accused is the natural father of the deceased child, Braxton Hammond, and his twin brother, Dean, from his relationship with the mother of the children, Nakita Cook. The issue in this trial will be whether the prosecution can prove beyond reasonable doubt that it was the accused who inflicted injuries on this child either with or without murderous intent, as opposed to the alternative possibility that the injuries were inflicted by the child’s mother. As I understand it there are no other possibilities.
In order to bring its case against the accused, the prosecution rely on, among other things, portions of the evidence which they say establishes a tendency on behalf of the accused to act in a particular way towards the deceased.
In accordance with s 97(1)(a) of the Evidence Act 2008, on 5 February 2019, a notice to that effect was given.
In part, the prosecution notice outlines that the accused had a tendency to act towards the deceased in a particular way, namely by being in appropriately rough and intentionally physically aggressive. Evidence that the accused was inappropriately rough involved:
(a) Throwing the deceased up in the air and spinning him around;
(b) Putting the deceased on a blanket and dragging it on the floor, then flicking the blanket to make the child go sideways; and
(c) Pulling the deceased upright by the arms from a prone position.
The evidence that the accused was intentionally physically aggressive with the deceased child was:
(a) throwing the child face down on the couch; and
(b) causing injury to the child’s leg.
The notice further indicated the tendency evidence would be relied on to support both the charge of murder and child homicide as making the facts of those charges more likely.
The defence object to this evidence being put before the jury at all. In particular, it is argued, on behalf of the accused, that none of this evidence has the significant probative value necessary before it can be used as tendency evidence pursuant to s 97(1)(b) of the Evidence Act. If this evidence is not admissible as tendency evidence, then it is not admissible at all because it would not be relevant for any other purpose.
In the written submissions filed on behalf of the accused, the following submissions were outlined and expanded in oral argument before me:
(a) the particulars of the tendency evidence to be inappropriately rough are ambiguous as to whether they are inappropriate, as the handling of children varies. Further, the evidence are insufficient to establish an intention to deliberately harm the deceased child and are inconsistent with the mens rea for both charges;
(b)the particulars of the tendency evidence to be intentionally physically aggressive lack probative value, especially in relation to the deceased child’s leg injury. During the time period in which the injury occurred, there were at least four other caregivers with access to the deceased, and there is little evidence the assertion that it was the accused who caused it. Additionally, the incident described by the mother, Nakita Cook, of throwing the child on the couch is not, on its own, sufficient to establish a tendency;
(b) the evidence sought may be somewhat probative, but fails to meet the test of significantly probative. Even if it is significantly probative, it does not outweigh any prejudicial effect it may have on the accused;
(c) the risk of prejudice caused by the jury hearing evidence alleging prior physical abuse of the deceased child is prejudice of the gravest kind in a criminal trial.
The Evidence Act defines ‘probative value’ to mean ‘the extent to which the evidence could rationally affect the assessment of or the probably of the existence of a fact in issue’.[1]
[1]Evidence Act2008 (Vic), Dictionary.
Evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.[2]
[2]Hughes v The Queen [2017] HCA 20.
To be ‘significant’, therefore, the evidence must be more than merely relevant. The authorities seem to suggest that it must be ‘important’, ‘of consequence’ or ‘influential in the context of fact finding’.[3] Of course, the evidence is not be assessed in isolation, and courts may conclude that, in combination with other evidence, the tendency evidence makes any facts making up the elements of the offence charged significant more likely. In the High Court’s judgment in Hughes, caution when relying on tendency evidence was signalled due to the risk that an appellate court will reach a different conclusion, or differences between expected and actual evidence given by witnesses at trial, with the consequences for the safety of any conviction.[4]
[3]See for example IMM v The Queen [2016] HCA 14 at [46].
[4][2017] HCA 20 at [42].
As the majority explained in Hughes, the degree of similarity required for tendency evidence to have significant probative value depends on what the evidence is led to prove:
[39] Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.[5] (Emphasis added)
[5]Ibid.
The analysis is a two-step process: First, the extent to which the evidence proves the alleged tendency and, second, the extent to which the alleged tendency makes the facts in issue more likely.
In this trial, the single issue will be the identity of the person who inflicted the injuries on the deceased child. The accused denies that he was that person. The only other possibility is that the mother of the child inflicted these injuries. In circumstances where the issue is one of the identity of the offender, the majority of the High Court in Hughes made clear that a high level of similarity between the conduct is required.
In my view, an early difficulty with the admission of this evidence to show tendency is that, so far as the fatal injuries to the child are concerned, there is no evidence at all as to how those injuries were caused. No witness claims to have seen the accused inflict any injury on the child or do anything causing a result that might explain those injuries. In addition, the accused himself has not admitted that he inflicted any injury that might have caused this child’s death.
I have already ruled that the medical witnesses, when giving of their expert evidence, must restrict themselves to describing the injuries and the means by which those injuries caused the death of the child. In addition to that, those witnesses will describe the possible mechanisms by which such injuries could have been inflicted, and those possibilities will include deliberately inflicted force. However, in the circumstances of this case, I have ruled that I will not permit those witnesses to go further and express a concluded opinion that the injuries, which were evident to this child, must have been caused by deliberate and intentional force. In my opinion, in the absence of any direct evidence at all as to what occurred, such evidence would not be permissible, and would be beyond the proper role of expert witnesses who, themselves, were not witnesses to what occurred.
In relation to the evidence of the accused being inappropriately rough with the child in the three ways that the prosecution particularised, I agree with the submission on behalf of the accused that none of it is tendency relevant to the issues in this trial on either charge 1 or charge 2 – apart from having the effect of generating suspicion.
In relation to the allegation that the accused was intentionally physically aggressive with the child by throwing the child onto the couch, it is conceded by counsel for the accused that this evidence may have some relevance to the second charge of child homicide but, of course, the question is whether it has significant probative value which outweighs the unfair prejudice. It is difficult to see how this evidence could have any relevance to the charge of murder.
As to the injury to the child’s leg, the prosecution wish to have it inferred that when the child’s mother heard the child scream, the accused must have inflicted an injury on the child’s leg that caused a fracture to the femur because he was holding the child at the time. Even if it was assumed that the accused had some connection with the injury to the leg - whenever it occurred – it is correct to say, as was argued on behalf of the accused, that there is no evidence at all which shows what made the child scream, whether the injury to the leg had occurred coincident with that event, and how the injury was inflicted.
Given the issues that will arise in this trial, particularly being the issue of the identity of the person who caused the fatal injuries, I am unable to see that there is any kind of ‘close similarity’ referred to in Hughes that would give this conduct the significant probative value required for it to be admitted as tendency evidence.
Prejudice
Apart from the question of the probative value of this evidence, the prejudice that would flow from it is very substantial in a case such as this. Counsel’s submissions referred to that prejudice and, in that context, this is an unusual case for the purpose of resolving the admissibility of this evidence as tendency evidence. The prosecution have chosen to charge the accused not just with the offence of child homicide, but with a charge of murder requiring proof of both the acts causing the death of the child with a subjective murderous intention.
In dealing with the admissibility of this evidence as tendency evidence, I have to consider first whether it shows a relevant tendency on the charge of murder. To me, it is clear that it does not. However, I then have to consider the issue again on the alternative charge of child homicide. As counsel for the accused have identified, I must keep in mind that this is a case where the two alternative charges on the indictment arise from the one incident. So, for example, if I had concluded that some part of the evidence of tendency was admissible only on charge of child homicide, a careful direction to the jury would need to be given by me explaining that the evidence was not available on the charge of murder.
On any view, the prejudicial effect of this evidence concerning the possible earlier maltreatment by the accused of this eight-week-old child would be very substantial indeed. On the charge of murder, it would severely test the effectiveness of any judicial direction I gave. In my opinion, this is one of those circumstances where there is a significant prospect that, notwithstanding the direction, the jury would be overtaken by the prejudicial effect of this evidence and, importantly, the prejudice would, therefore, well exceed any probative value the evidence may have.
Conclusion
In my view, none of this evidence fulfils the requirement of tendency evidence for the reasons I have given. Albeit that in some respects it is relevant, it does not carry, in any case, the significant probative value that is required to be established before it can be used in the way that the prosecution propose. I will therefore exclude the evidence referred to in the prosecution notice.
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