R v Jarc - [2000] NTSC 80

R v Jarc [2000] NTSC 80
PARTIES:THE QUEEN
v

ANTHONY WERNER JARC

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:9904344
DELIVERED:  20 September 2000
HEARING DATES:  8 September 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Applicant:M. Carey
Respondent:  J. Tippet
Solicitors:
Applicant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Service
Judgment category classification:    B
Judgment ID Number:  ril0021
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Jarc [2000] NTSC 80
No 9904344

BETWEEN:
THE QUEEN

Appellant
AND:
ANTHONY WERNER JARC

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 20 September 2000)

Anthony Werner Jarc is charged with the murder of Peter Charles Bowden and to that charge he has pleaded not guilty.

The matter comes before me at this time in relation to an application pursuant to s 26L of the Evidence Act to hear and determine a question relating to the admissibility of evidence.
A Brief History
For present purposes there is no real dispute between the parties as to the relevant circumstances. The Crown alleges that the accused met the deceased in February 1999. At that time the accused was living at the Red Shield Hostel and the deceased in a one bedroom unit at Gleneagles Court in Northlakes. The two had visited each other at their respective addresses and they had spent time together. It is alleged that on 21 February 1999 the accused visited the deceased at Gleneagles Court at the request of the deceased. During the course of that visit it is alleged that the accused murdered the deceased.
In an interview conducted on 23 February 1999 the accused said that he was at the deceased’s premises when the deceased “started touching” him. He pushed the deceased away and told him “I wasn’t gay” but “he just kept on letting his arms out”. The accused then said he picked up a bottle of wine and hit the deceased over the head with it. The deceased was bleeding from the head and went to the bathroom to wash the glass and blood from him. The accused accompanied him to the bathroom to assist. The accused said that the deceased then started to hit him and said he would call the police. The accused hit him again. He said they started fighting and he hit the deceased with a fire extinguisher. The deceased obtained a knife which at some point he dropped and the accused said “I picked up the knife and I stabbed him with it”. He also said “I kept on hitting him with the fire extinguisher.”
Thereafter the accused changed his clothes, dressing himself in clothes belonging to the deceased, recovered his “playstation”, took some cash from the wallet of the deceased and then took the deceased’s car and drove away.
Later that day the accused met two friends being Jason Bishop and Dean Konco. The accused told his friends what had occurred. Although it is not entirely clear it seems he may have told Mr Bishop first and then Mr Konco at a later time.
The accused and Mr Konco subsequently attended at the Northlakes unit on two occasions. The first was on 21 February 1999 when the accused called upon Mr Konco at his residence at the YMCA. According to Mr Konco (in his statement dated 5 October 1999) the accused said: “Do you want to go and see a dead body?” A slightly different version of events is contained in his recorded statement (Exhibit R1). In any event they drove to the unit and entered the premises. Mr Konco said that the “unit was a mess” and he saw the deceased in the bathroom. He asked the accused what he had done and received the response:
“He said that the bloke came behind him and tried to feel him up. He said that he tried to touch him. He said he turned around and hit him in the head with a bottle. He said that he then kept bashing him with a hose or something. He said that he couldn’t handle what the bloke had done to him and he got really angry about it. He said that after hitting him with the bottle he was still really angry and wanted to give him some more”.
More detail of that conversation is to be found in the tape recorded interview conducted between Mr Konco and police officers on 23 February 1999 (Exhibit R1). The defence concedes that evidence of this conversation is admissible.
Mr Konco said that, at the suggestion of the accused, they then searched the flat for money and a PIN number. He said that the accused already had the deceased’s wallet and they were looking for a PIN number for one of his credit cards. The accused, in his record of interview of 23 February 1999, admitted that he took some of the property of the deceased on this occasion. Mr Konco does not mention this.
Mr Konco said that after the search and as they drove away from the unit the accused informed him that he had been “putting on a video or something” when the deceased touched him. Mr Konco had responded that the accused “didn’t have to kill him” and the accused replied that “he would get away with it but he just had to plan out what to do”.
Mr Konco and the accused went back to the deceased’s unit on the following night. They had previously agreed to go back to the unit to take “some of his stuff and sell it to get money”. They went there at about 9 or 10pm. The accused reversed the car into the carport and opened the door to the unit with a key. They went in and took items such as stereo speakers, a television set, a pushbike and the like. They put those items into the car and then locked the unit and drove away. Mr Konco kept the pushbike and a couple of other things and the accused took the remaining items. The accused subsequently sold the items he retained to various second hand dealers.
In a separate indictment the accused is charged with various offences which followed the death of the deceased. I am told the accused intends to plead guilty to those offences. They include the unlawful use of the motor vehicle when he left the premises, unlawfully entering the building on both 21 and 22 February 1999 and stealing various items on 22 February 1999 including a personal organiser, camera, pushbike, tool box and other similar items having a total value of $4940. He is also charged with obtaining money by deception from various second hand dealers, the basis of those charges being the sale of some of the items he obtained from the premises of the deceased.
The accused admits participating in the death of the deceased but says that he is not guilty of murder. It is for the Crown to negate beyond reasonable doubt any defence that is available to or is raised by the accused. What the defence or defences in this case are has not yet become clear and may not become clear until after the close of the Crown case. The Crown must anticipate the defence or defences.
Apart from the objective information obtained from the scene the only version of events available is that provided by the accused. He was interviewed by the police and he also had discussions with Mr Konco and Mr Bishop. It is probable that the observations made by the accused on those occasions will be relevant to whether or not the Crown has negated all possible defences beyond reasonable doubt. It follows that the jury will have to consider the credit of the accused when deliberating upon any defence that may be identified.
The Evidence Objected to by the Accused
The accused challenged the admissibility of evidence relating to matters occurring subsequent to the time of the death. Although not clearly stated by the accused the written submissions and the oral submissions of counsel show that the evidence falls into four categories:
(a)evidence of the immediate aftermath of the death when, it is alleged, the accused took money from the wallet of the deceased, changed into clothes owned by the deceased, recovered his playstation and departed the unit in the motor vehicle which belonged to the deceased;
(b)evidence of the return to the premises later on 21 February 1999 in the company of Mr Konco when they searched for money and a PIN number;
(c)evidence of the return to the unit by Mr Konco and the accused on 22 February 1999 when they took the items referred to in para [11] above; and
(d)evidence of the sale of those items retained by the accused to three second hand dealers.

The Submissions on Behalf of the Accused

The submission of the accused was that the evidence which relates to those matters should be excluded from the accused’s trial for murder. All of those events took place after the death of the deceased.
It was submitted that the grounds upon which the evidence should be excluded included that the later acts of the accused that amount to property offences and offences of dishonesty are not relevant to the issues arising on the charge of murder and are not necessary for the purpose of understanding how the death came about. Those matters go to bad character alone. They have a prejudicial effect and no relevant probative value. The point was made that it is not part of the Crown case that the accused went to the deceased’s residence prior to his death for the purpose of committing a crime or that the death took place in the course of, or in the furtherance of, the commission of any crime. It was said that the fact that the accused engaged in committing offences after the death cannot be relevant to the question of whether he intended to kill the deceased or whether a defence involving justification or excuse is available to him at his trial. The accused submitted that for the prosecution to call evidence in relation to those later events it must show that they are in some way specifically related to the subject matter of the indictment and that had not been done.
It was the submission of the accused that the later events (being the taking of items, the unlawful use of the motor vehicle and subsequent unlawful entries) are not necessary to set the context in which the deceased’s death took place. Those are matters that go to character only and they can have no other effect than to be solely prejudicial.
Finally it was submitted that the prosecution could not exclude the hypothesis that the accused developed the intention to engage in those subsequent offences of dishonesty in the period after the death took place. It follows, it was said, that “it cannot be reasonably inferred that the subsequent ‘transactions’ are connected with the first transaction (‘the killing’) when there is a reasonable explanation for them. Accordingly, if the material cannot be used in that way it is not relevant and hence not admissible”.
I turn to consider the four categories of evidence identified by the accused.
The First Category
As to the evidence of the immediate aftermath of the death when, it is alleged, the accused took money from the wallet of the deceased, changed into clothes owned by the deceased, recovered his playstation and departed the unit in the motor vehicle which belonged to the deceased, I regard this as being a part of the one transaction which included the death of the deceased. The conduct identified was contemporaneous with the death of the deceased. It is connected with the death and the events which immediately preceded the death and arises directly out of those events. There is a sequence of connected events which form a single transaction: R v Vidic (1986) 43 SASR 176 at 178-179. The totality of that evidence puts the matter in a setting which will assist the jury to obtain a full appreciation of the death and the events surrounding it.
Although the evidence does reveal other criminal conduct on the part of the accused it is admissible as forming part of the same transaction as that under enquiry: Harriman v The Queen (1989) 167 CLR 590 at 628. In addition such evidence is useful in that it will enable the jury to assess whether or not they accept explanations provided by the accused to the police and others as to the basis of his conduct. The evidence may reflect a state of mind at that time which will help the jury to determine whether to accept some or all of the evidence of the accused as to what occurred immediately before the death and what his state of mind was at the time of death. These are a connected series of incidents which should be considered as part of the one transaction. They are intertwined with the overall conduct of the accused in relation to the killing and they cannot, without obvious artificiality, be separated.
Whilst the evidence does disclose the commission of offences by the accused it does not give rise to the thought process that the accused was a person of criminal disposition in a sense which makes it more likely that he committed the offence in question: Harriman v The Queen (supra at 627). Contrary to the submission made by Mr Tippett this evidence does not lead to the prospect that a jury might draw a conclusion that the accused intended to kill the deceased because he has committed further offences. It is not likely that the jury might more readily convict because of the type of person the accused appears from this conduct to be. In the circumstances of this matter such reasoning does not constitute a logical progression. In any event appropriate warnings can be given to ensure that such a line of reasoning is not adopted by the jury. Further, to my mind, the probative force of this evidence is not outweighed by any prejudicial effect it may have.
The Second Category
As to the evidence of the return to the premises later on 21 February 1999 when the accused was in the company of Mr Konco and when they searched for money and a PIN number, the evidence of Mr Konco is that, on that occasion, the conversation which is partially set out in para [7] above occurred. Mr Tippett conceded that this conversation was admissible in evidence but he said that the Crown was able to lead evidence of the conversation without placing it at the scene of the death and without referring to the subsequent offences. He submitted that evidence of the conversation could be admitted without reference to location at all. He said, further, that whether or not the location was referred to the evidence should not then be admitted as to the searching of the flat by the accused and Mr Konco for money and a PIN number.
The fact that the conversation is relevant and admissible is conceded. It seems to me that the location and circumstances of that conversation are relevant to the deliberations of the jury. The dramatic circumstances in which Mr Konco found himself may assist the jury to determine whether he has a clear and complete recollection of what was said. The full impact of what was said by the accused is obtained by considering what was said along with the fact that it was said at the premises, on the same night as the death occurred and in the presence of the body of the deceased. The circumstances surrounding the conversation, including the manner of presentation of the accused, may be relevant to an assessment of the evidence of the accused as to what occurred earlier in the evening and leading up to the death.
In addition the Crown submits that the visit to the premises on the night of 21 February 1999 is important because there is a measure of conflict between what has been said by the accused and what Mr Konco said he observed on that occasion. The accused makes no mention of having searched through the unit and creating a mess immediately after the death. He said that the unit was ransacked by himself and Mr Konco at the later time when they searched for money and the PIN number. However Mr Konco said that the unit was already “in a mess” when he arrived for the first time. He said that the kitchen drawers were on the floor, there were papers “everywhere” in the bedroom where “everything out of the closet was on the floor”, there was “shit all over the floor” in the kitchen, and, in relation to the drawers near the bed, “everything was out of them drawers on the floor”. This would seem to be inconsistent with the advice provided by the accused that upon departure he did not “thrash anything then”. He said “me and Dean trashed through (the unit) on Monday”. This evidence will be relevant to whether or not the jury accepts the description of events provided by the accused to police or part thereof. It follows that evidence of the second attendance will be admissible for that purpose. Further, I do not accept that the probative value of this evidence is outweighed by any prejudicial effect it may have.
Once the evidence of the conversation and the location of that conversation is admitted the issue of whether to also admit the evidence of searching the premises by both Mr Konco and the accused and the taking of items from the premises by the accused arises. This also arises in light of the need to admit the evidence of Mr Konco as to the state of the unit when he first attended.It seems to me that evidence of the conduct of the accused and Mr Konco at the premises is necessary in order to explain why they were present at the scene on that occasion. In the absence of such evidence the jury will be left in a position of having been informed that Mr Konco and the accused attended at the premises and then being left to speculate as to why they were there. That speculation is likely to lead to adverse and possibly quite wrong conclusions. As presently informed it would seem to me that such evidence should be admitted in order to explain the presence of the accused and Mr Konco at the unit on that occasion. I raised this issue with Mr Tippett in the course of submissions and he reserved his position. I will draw no final conclusion in relation to that matter until Mr Tippett has had the opportunity to consider his position and make further submissions. In the absence of further submissions on behalf of the accused the evidence will be admitted.
The Third Category
In relation to the second attendance at the premises with Mr Konco the only bases upon which the Crown submits that that is relevant are firstly that it demonstrates a level of desperation on the part of the accused in relation to the issue of flight and secondly it is part of the whole context of the proceedings. It was submitted that the unlawful entries and stealings were committed to fund the flight of the accused. However there is other evidence of intended flight by the accused. There are admissions made by the accused to others and there is the possession of a bus ticket by the accused. Mr Carey, for the Crown, submitted that the evidence of the disposition of the deceased’s goods is relevant beyond mere evidence of flight because it may demonstrate the lengths to which the accused was prepared to go to achieve flight and therefore is evidence of the level of his consciousness of guilt. I am unable to accept that proposition. The evidence of intended flight is available. The evidence of the commission of criminal acts following the death to fund the flight does not add to that evidence in any useful way. It does not demonstrate any heightened consciousness of relevant guilt. It may show that the accused sought to flee following the death in which he admits he was involved. It does not of itself show a consciousness of guilt of murder. I do not regard the evidence as admissible on that basis.
In addition I hold that the second visit by Mr Konco and the accused is not a relevant part of the “context” of the alleged murder. It is an event that took place some twenty four hours after the death. In the circumstances and in the absence of any further developed argument it seems to me that this evidence is irrelevant and ought not be admitted. It is of no probative value to the issues to be resolved.
The Fourth Category
In relation to the final category of evidence being that relating to the sale of items retained by the accused to second hand dealers it follows from what I have already said that this evidence is not admissible in these proceedings.
Conclusion

For the reasons I have expressed I do not propose to exercise my discretion to exclude the evidence in the first and second categories. I will allow into evidence the matters identified in para [15](a) and [15](b) above. I will not allow into evidence the matters identified in paras [15](c) and [15](d) above. These reasons deal only with the matters raised on the hearing of the application on 8 September 2000 and do not exclude applications made by either party upon other grounds. There will be liberty to the parties to apply.

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