R v Hutt, Hutt, Bell and Jeffrey

[1988] TASSC 50

Serial No 43/1988
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Hutt, Hutt, Bell and Jeffrey [1988] TASSC 50; A43/1988

PARTIES:  THE QUEEN
  v
  HUTT, HUTT, BELL and JEFFREY

FILE NO/S:  C74/1988
DELIVERED ON:  1 August 1988
JUDGMENT OF:  Wright J

Judgment Number:  A43/1988
Number of paragraphs:  19

Serial No 43/1988

List "A"

File No C74/1988

THE QUEEN v HUTT, HUTT, BELL & JEFFREY

REASONS FOR JUDGMENT  WRIGHT J
RULING AT TRIAL  1 August 1988
(Delivered Orally)

1. A preliminary objection has been taken by counsel for three of the accused to the admission of evidence relating to an incident at Risdon Vale involving the four accused, Craig Rowbottom, Tanya Mathews and Stephen Pearce, when at least two of the accused were involved directly in a fight with Rowbottom and Pearce. This incident is said to have occurred some time after the incident at Rokeby in relation to which the indictment for murder has been presented. The time interval between the two incidents has been represented as being as long as eighty minutes and as short as thirty minutes or a little more. These estimates are necessarily imprecise because the witnesses whose proofs have been referred to in argument have not yet been examined; indeed no evidence has been given in the course of the trial and I have been invited by all counsel to resolve this, and another question of admissibility which I shall refer to shortly, as preliminary matters on the basis of the witnesses' proofs contained in the Crown papers. As became evident in the course of argument, although this course has many features to commend it, difficulties can arise where the proofs contain inconsistencies, ambiguities or contradictions. Nonetheless, as the objections taken relate to the general substance of the evidence and are founded on submissions of law, it seems to me appropriate and convenient to dispose of them in this way at this stage.

1. The Crown maintains that the evidence objected to is relevant and admissible as tending to establish the nature and extent of the "unlawful purpose" of the four accused when they visited premises at 46 Benboyd Circle Rokeby, next door to Mr McClymont's home at number 48 Benboyd Circle on the evening of Saturday the 17 January this year. The Crown contends that the establishment of that unlawful purpose is fundamental to one of the alternative bases upon which its case is put against all four accused pursuant to s4 of the Tasmanian Criminal Code, which reads:

"Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, a crime is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the crime."

1. It is plain that in order to establish that the alleged killing of Mr McClymont was a probable consequence of the prosecution of an unlawful purpose by the accused, the nature of that unlawful purpose would need to be shown either by legitimate inference or direct evidence. Obviously, it would not necessarily be sufficient for the Crown to adduce evidence of conversations between, or conduct involving the accused prior to their leaving to travel to Rokeby. Such conversations or conduct may be ambiguous and in any event, may be disputed by the accused or any one of them at some stage of the trial. The way in which each of them acted in apparent furtherance of their joint enterprise and their behaviour in relation to each other and to other people in the course thereof, would ordinarily be significant evidence pointing to the scope of their common intent.

1. Counsel for Craig Hutt, Wayne Bell and Dean Jeffrey, contend that the incident involving Rowbottom and his companions, (which I shall hereafter refer to as "the Risdon Vale incident"), is essentially impermissible similar fact evidence, serving no other purpose than to illustrate that the four accused are capable of violence or have a violent propensity or disposition. There can be no doubt that, if this were the sole basis for proffering the evidence, it would be inadmissible according to the basic rule enunciated in Makin v Attorney General for New South Wales [1894] AC 57, or as put by Taylor J in The Queen v Cielieski [1972] 1 NSWLR 504, at p512:

"The principle upon which evidence of conduct in which the accused is involved in acts similar to those with which he was charged, (as the offence is said by the learned author of Roscoe's Criminal Evidence, 16th Ed. p.100 to be, so far as there can be a general rule), is admirably stated in Halsbury's Laws of England, 2nd Ed. Vol. 9, para. 270 p.186, thus: 'Evidence cannot be given for the prosecution that the defendant is of bad character or has a propensity to commit criminal acts of the same nature as the offence charged. But where a guilty knowledge or intention or design is the essence of the offence proof may be given that the defendant did other acts similar to those which formed the basis of the charge. Such acts may be proved whether they were done before or after the act which formed the basis of the charge, and even if they form or have formed the basis of other charges. The evidence, which must be of transactions having such a nexus with the offence charged that it forms part of the evidence on which that offence is proved, is admissible to show not that the defendant did the acts which formed the basis of the charge but that if he did such acts he did them intentionally or with knowledge of some fact and not accidentally or inadvertently or innocently, or that they formed part of a system.'"

1. However, the Crown does not contend that the evidence which it now seeks to lead should be admitted pursuant to this principle.

1. Defence counsel contended further that the Crown case based upon s.4 fails in limine because it is not possible to say that the assault on Mr McClymont, followed by his later death, was a probable consequence of the accused's original "unlawful purpose", to assault or engage in a fight with Rowbottom and, perhaps, his friends. In Murray v The Queen [1962] Tas SR 170 at p180, the former Chief Justice Sir Stanley Burbury inclined to the view that where one of two robbers punched or kicked their victim to death, his co–accused could not be convicted of murder in reliance upon s.4 because a lethal weapon had not been present at the scene and its use had not been contemplated by either accused before commencing their unlawful assault upon the victim. These views were obiter dicta but in any event, by contrast, in the present case the Crown contends that the weapon which caused Mr McClymont's fatal injuries was taken to the scene by one of the accused and by its nature it was likely to have been seen by the others before the attack on Mr McClymont took place. Whether this will be established by the evidence remains to be seen but that is how the Crown puts part of its case. It is therefore necessary to consider how the jury may be required to approach the "probable consequence" test and the elements which are involved in that test. In my opinion, there can be little doubt that the test is an objective one. As Mr Wilkinson pointed out in his reply on Friday afternoon, the observations of Stephen J in Johns v The Queen (1979–80) 143 CLR 108 at p118 which was cited by Crown counsel Mr Faulds, in support of his argument, are not directly applicable to the rules relating to accomplice liability set out in ss3,4, and 5 of the Tasmanian Criminal Code. The decisions of the High Court in Brennan v The King (1936) 55 CLR 253 and Stuart v The Queen (1974) 134 CLR 426 dealing with similar Code provisions in Western Australia and Queensland respectively, are much more relevant to this particular question. As Gibbs J, as he then was, said in Stuart's case at pp441 – 442:

"Finally it was submitted that it was not open to the jury to find that the murder committed by Finch was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose of extortion. To consider this submission it is first necessary to decide whether, as was submitted on behalf of the applicant, 'a probable consequence' within s.8 is a consequence which the accused was aware was likely to follow from the prosecution of the purpose, i.e. whether the words of s.8 referring to 'a probable consequence' import a subjective test. Clearly, in my opinion, they do not. The question posed by the section is whether in fact the nature of the offence was such that its commission was a probable consequence of the prosecution of the common unlawful purpose and not whether the accused was aware that its commission was a probable consequence. This was recognized by all the members of this Court in Brennan v. The King (1936) 55 C.L.R. 253. Starke J. said at pp. 260–261:

'A probable consequence is, I apprehend, that which a person of average competence and knowledge might be expected to foresee as likely to follow upon the particular act; though it may be that the particular consequence is not intended or foreseen by the actor.'

Dixon and Evatt JJ. said at pp.263–264:

'The expression "offence ... of such a nature that its commission was a probable consequence of the prosecution of such purpose" fixes on the purpose which there is a common intention to prosecute.

It then takes the nature of the offence actually committed. It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence. The required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose.'

In Reg. v. Solomon [1959] Qd.R. 123, Philp J. criticized some of the passages in Brennan v. The King (1936) 55 C.L.R. 253 which dealt with the effect of s.7 (a question to which I shall return) but did not extend that criticism to the Court's remarks as to s.8. He said at p.129:

'This section' [s.8] 'extends the criminal responsibility of persons who have made a concert to commit an offence. They are responsible not only for the concerted – the willed – offence, but also for such offences – but only such offences – as are objectively the probable consequence of the prosecution of the concert.'

I agree that under s.8 the test is an objective one."

1. Other members of the High Court in Stuart's case expressed similar views to those expressed by Gibbs J Further, as Gibbs J proceeded to demonstrate in his discussion of the facts in Stuart's case, the question of what is or is not a probable consequence cannot be determined simply by reference to abstract concepts. As his Honour said at p443:

"Under s.8 it is necessary for the jury to consider fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose."

1. Consequently it will be seen that the "probability" question depends vitally upon the facts found by the jury and the inferences which they draw from those facts and it therefore follows that it may be virtually impossible to say, at this stage of the trial, that it would not be open for the jury to find that Mr McClymont's death was not a probable consequence of prosecuting an "unlawful purpose".

1. I am of the view that there is no present basis for saying that the Crown will be unable to prove its case in reliance upon s4 of the Code. It follows also that there is no basis for holding that the evidence objected to should be excluded as being related solely to a basis of liability which the Crown may not legitimately pursue. I have come to this conclusion with full awareness that the Crown proofs suggest that each accused man has given only meagre information to the police in records of interview and admissional statements allegedly made by him as to his purpose in going to Rokeby, and further that there are a number of important contradictions in some of these documents. Because of these factors the strength of the Crown case, insofar as it is based upon confessional material, differs from individual to individual. It is entirely possible that the jury will accept one version and reject another and it is also possible that all versions of fact given by the accused as to the nature and the extent of their pre–planning of the night's activities will be rejected. It is therefore incorrect for defence counsel to suggest that the Crown necessarily has sufficient evidence of the common purpose without the evidence now under challenge, nor can I accept their submissions that such a consideration provides a sound basis for refusing the admission of this evidence on a discretionary basis.

1. I have considered the submissions of counsel contending that the evidence of events following the attack upon Mr McClymont, up to and including the subsequent violence at Risdon Vale should be excluded because it amounts to no more than propensity evidence but I am unable to accept those submissions. The admissibility of such evidence in this case does not depend upon the argument that the evening's events amounted to one unified transaction of the kind under consideration in O'Leary v The King (1946) 73 CLR 566.

1. It is clear that if one has regard to the chronological separation of events and the locality in which each occurred, the activities at Rokeby and those at Risdon Vale, were, to quote the words of Bray CJ in The Queen v Heidt (1976) 14 SASR 574, "successive scenes of a play with a curtain dropped between". That case was a decision similar in its basic features to both The Queen v Cielieski (supra), to which I have already referred, and The Queen v Hocking [1988] 1 Qd R 582, although as The Queen v O'Malley [1964] Qd R 226 demonstrates, the difficulty in deciding where to draw the line between a unified sequence of events and separate acts may sometimes be difficult to determine. As the cases of Brennan v The King (supra), Stuart v The Queen (supra) and Johns v The Queen (supra), clearly demonstrate, the nature of the unlawful purpose or purposes in contemplation by the offenders, must always be of direct and immediate relevance to the probability that the offence named in the indictment would or would not occur. It follows, in my opinion, that where an unlawful transaction, similar in kind to that suggested by other evidence in this case to have been planned before the offence for which the indictment is laid, is shown to have occurred during the course of the evening's activities, the evidence of what occurred during that unlawful transaction may illuminate the mutual understanding of the offenders and may enable inferences to be drawn clarifying or amplifying the nature of the original plan as understood by each of them. It may be that in the course of the trial, facts will emerge which will show that the common purpose originally agreed upon was abandoned or modified at some time subsequent to the violence involving Mr McClymont. But this is not a view that I can or should come to at this stage of the trial dealing with these matters as preliminary issues in the way that I have.

1. It is also plain from the authorities that if evidence is admissible upon some other legitimate and substantial basis, it is not excluded by operation of the similar fact rule simply because it discloses propensity. See, for example, Gillies, "Law of Evidence in Australia", p379, par(G).

1. It was submitted by defence counsel that nonetheless I have an overriding discretion to exclude evidence of the kind now in question, if its prejudicial effect is likely to outweigh its probative value. This is, of course, trite law but despite the strenuous endeavours of counsel to persuade me to this view, I am quite unable to agree that this evidence falls into such a category. It will no doubt, require close scrutiny by the jury when considering their verdicts, and in considering the individual involvement of each accused man but I think that with the appropriate directions it should be within their capability to give this evidence its proper weight and significance. I therefore propose to admit the evidence relating to the whole of the Risdon Vale incident up to and including the point at which the four accused left the vicinity of the Mathew's home at 31 Laurel Street, Risdon Vale.

1. I turn now to the second category of evidence objected to by defence counsel. All four accused object to the evidence of David Jackson, Rodney Narracott and Michael Palmer, who it is alleged, were present at the Caltex Service Station at 109 East Derwent Highway at Lindisfarne on 17 January this year when the four accused men arrived in a vehicle which had apparently run out of petrol. It is apparent that they were travelling back to Rokeby after the Risdon Vale incident at this time. It is alleged that whilst at the service station the four accused behaved in an offensive and aggressive manner towards Mr Jackson and his companions. I shall refer to this as "the service station incident". In my opinion, any suggestion that the aggressive conduct of the accused at the service station could be regarded as evidence tending to prove their respective intents or state of mind at the time of the injury to Mr McClymont must be firmly rejected. There is a certain broad similarity between the conduct now in question and the conduct of the appellants in both The Queen v Heidt (supra) and The Queen v Hocking (supra). In each of those cases, evidence which the Crown sought to lead in respect of violent conduct subsequent to that forming the basis of the charge in the indictment was rejected. As Walters J said in Heidt's case at p587:

"The subsequent conduct had not the necessary or proximate nexus 'by the chain of cause and effect', with the transaction which formed the subject of the charge ... ".

1. He also described the conduct in question as "ambiguous". By no stretch of the imagination could the service station incident be regarded as part of the res gestae as was the evidence in O'Leary v The King (supra). It is also worth noting that the evidence which the Crown seeks to adduce concerns an incident which occurred after the incidents forming the subject matter of the indictment and, although this is not a determinative factor, see for example, Reg v Geering (1849) 18 LJMC 215; R v Armstrong [1922] 2 KB 555; Griffith v The King (1937) 58 CLR 185, it is a highly relevant consideration, (see for example the comments of Bray CJ in The Queenv Heidt (supra) at p582).

1. Whilst I have ruled that evidence of the events which occurred during the Risdon Vale incident is relevant and admissible, this was on the special basis provided by the Crown's reliance on s4 of the Tasmanian Criminal Code. Similar reasoning cannot apply in relation to the later incident at the service station.

1. It was submitted by the Crown that I should admit the evidence in rebuttal of possible defences. It may well be technically admissible to rebut a defence of innocent association or accident, although I fail to see how it could rebut a defence of self–defence as suggested. But even in these respects, that is, innocent association and accident, it seems to me that its probative value is slight and is heavily outweighed by the possible prejudicial effect it may have upon the jury's deliberations. At this stage of the trial, the Crown has no substantial reason to believe that any of these defences will be raised and although the pleas of not guilty theoretically put all relevant matters in issue, I think that the greater part of this evidence should be excluded. I refer to what Bray CJ said in The Queen v Heidt (supra) at p581:

"The tendency now, it seems to me, is to admit the evidence if it could be relevant to rebut any defence which might arise, even though the prosecution knows that that is not the defence which the accused is actually going to raise, and to hold that the accused cannot escape from this position even if he disclaims such a defence in advance. See The Queen v. McIntosh. The Courts also seem to lean against reserving the question until it is ascertained what defence is actually going to be advanced and then allowing the evidence to be called by the prosecution in rebuttal if it is relevant to rebut that defence. (R. v. Finlayson). I find this disquieting. The utility of the general exclusionary rule which, in my view, is a very important one, would be greatly impaired if evidence of this kind is admitted as a matter of course despite its irrelevance to the real defence of the accused. Certainly if this happens an appropriate case would call for strong warning to the jury, that, for the purpose of considering the defence actually advanced, the evidence was irrelevant and should be disregarded; see R. v. Chandor."

1. I find myself in general agreement with the views expressed in that passage and although the complexion of the trial may change as it proceeds and it may be possible for the Crown to successfully apply for the reception of evidence of the service station incident in its entirety at a later stage, even in rebuttal if appropriate, I am satisfied that, assessing the matter on the Crown's papers as I must at this stage, there is no reason to permit evidence of the service station incident in its entirety at this point.

1. Mr Faulds submitted to me that the state of sobriety of the accused at the time of their visit to Rokeby was a relevant factor, whether or not it was put forward by any of the accused as to going to some aspect of defence based upon the absence of a specific intent. I agree with this contention. The way a man behaves will often be affected by the type and quantity of liquor he has consumed and to know how he is affected at any given time may serve to explain otherwise inexplicable conduct. It also seems to me that the jury may well be assisted to draw inferences as to the role played by each of the accused at Rokeby from evidence of their apparent insobriety at the service station, which was apparently an event which occurred approximately three quarters of an hour on one version or up to an hour and a half on another version, thereafter. Accordingly, if the Crown can confine its witnesses as to the service station incident in an appropriate way so that they do no more than describe each of the accused, their clothing and non–violent aspects of their behaviour tending to show their level of sobriety, this may be done. The limits of the type of evidence which I will permit are to be found on pp110, 111 and 111(a) of the Crown papers in the supplemental proofs of Mr Jackson. If the Crown seeks to lead similar evidence from Mr Narracott and Mr Palmer, new proofs of their evidence will have to be provided before they are called so that, if necessary, I can rule upon any specific matter to which objection may be taken by the defence.