R v Johnstone (Ruling No 1)
[2011] VSC 306
•8 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1556 of 2007
| THE QUEEN | Plaintiff |
| v | |
| AARON JAMES JOHNSTONE | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2011 | |
DATE OF RULING: | 8 June 2011 | |
CASE MAY BE CITED AS: | R v Johnstone (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 306 | |
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CRIMINAL LAW – Evidence – Murder – Relationship evidence – Admissibility of video clip recorded on mobile phone showing lewd and drunken behaviour of accused in company with deceased – Where defence case that accused’s actions triggered by sexual propositioning by the deceased – Whether probative of accused’s state of mind – Lack of probative value – Prejudicial effect – Evidence excluded.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Rochford SC with Ms S Flynn | Craig Hyland, Solicitor for Public Prosecutions |
| For the Defendant | Mr J Desmond | Marich Legal |
HIS HONOUR:
The accused is charged with the murder of his housemate, Higgins, on 22 September 2006. It is not in issue that he caused the death of Higgins by conscious, voluntary and deliberate acts. It is disputed that he did so with murderous intent.
In his record of interview the accused gives a relatively detailed and extensive account of bashing the deceased until, on one version, the deceased was unconscious. He admits using both his fists and a weapon, (namely a clay statue of a platypus) and hitting the deceased in a series of assaults which escalated in violence (see especially answers 167 to 275 and 393 to 524).
He says that the assault was triggered by the deceased coming into the lounge while drunk and naked and saying something like, ‘I'd like to suck your dick’. He says further that the deceased had pestered him with various advances whenever the deceased was drunk over the preceding months. This occurred some five days a week.
On this occasion, the accused had had ‘a fair bit to drink’, and just snapped and lost it. He says that the deceased was homosexual and he is not.
The prosecution desires to lead evidence obtained from the deceased's mobile telephone which shows a series of brief video clips. The clips show a third party, Andrew Studd, the deceased and the accused cavorting with each other while apparently drunk. In one clip the accused is dancing with or holding the deceased while a song is being played. In another, Studd exposes his penis. There is also another clip of an unidentifiable man's penis which Studd has previously given evidence is that of the accused. Studd says this clip was recorded in the presence of the deceased. It was also the accused who held the phone to take much of the video clips as a whole.
The evidence of Studd is that the video was taken on the deceased's mobile phone ‘ages ago while I was still living there’, i.e. in the deceased's place of residence. There is no evidence that the events which are video recorded were proximate in time to the deceased's death. It seems they occurred between mid 2005 and mid 2006.
The prosecution seeks to rely on the individual clips to rebut the assertion made by the accused in his record of interview that the fatal assault was triggered by a reaction to the deceased appearing naked and inviting the accused to engage in a sexual act.
The prosecution seeks to put the video clips in evidence as demonstrating the nature of the relationship between the deceased and the accused in a way which provides context to the accused's account of the circumstances which precipitated the fatal attack on the deceased. The prosecution accepts that the video clips do not tend to rebut the accused's assertion that when drunk, the deceased had frequently importuned him by way of sexual advances over the months preceding the fatal attack. It is submitted that the evidence, nevertheless, tends to rebut the accused's statements that he reacted violently on the night in question because he could not tolerate the deceased's advances anymore. The evidence is said to do this because it shows toleration of sexually suggestive behaviour between the deceased and the accused to which the accused was a willing party.
I am not persuaded that the evidence is probative of the accused's state of mind at the commencement of and during the course of the fatal attack. In particular, I am not persuaded that it tends to disprove that his actions were triggered in the way he describes. First, the video clips are fragmentary and are not proximate in time to the events in issue. Secondly, they demonstrate in large part activity involving Studd which is of doubtful relevance to the relationship between the accused and the deceased. Thirdly, and most significantly, they do not demonstrate the making of or the response to any request to engage in a sexual act by the deceased to the accused. Fourthly, they are not, as the prosecution concedes, evidence which tends to suggest such demands may not have been made either leading up to or on the night in question. Fifthly, they do not bear on the question of whether the deceased had pestered the accused when drunk over the months leading up to the fatal assault. Sixthly, they do not sensibly enable a view to be formed as to the likely response by the accused as to such a demand by the deceased when alone with him on the night of the deceased's death. Seventhly, I do not accept that the drunken behaviour in the video clips is so ‘abnormal’ that it necessarily provides a critical insight into the nature of the relationship between the accused and the deceased. Eighthly, the behaviour of the accused in the video clip is drunken, exhibitionist group behaviour and there are obvious problems in drawing inferences from it as to the accused’s likely behaviour in another context.
In summary, the video clips do not prove or tend to prove that the accused's account of the night on which the assault was triggered is untrue. I interpolate that, on one view, the clips might explain in part why the deceased might act generally in the way the accused said he did, but that is not the question in issue.
I accept that there is a long line of authority which establishes that as Kennedy J said in Bond, ‘The relations of the murdered or injured man and his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.’[1]
[1][1906] 2 KB 389, 401.
I also accept that the judgment of Heydon JA in Clark[2] usefully collects the principal authorities with respect to this class of evidence. They demonstrate that relationship evidence may be relevant contextually to the prosecution case in a number of ways. Nevertheless, the preferable approach, as Gleeson CJ said in Frawley, ‘…is not to consider the matters in terms of generality as to ‘relationship’ but, rather to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue.’ [3]
[2](2001) 123 A Crim R 506.
[3](1993) 69 A Crim R 208, 222.
This is not a case of prior violence or demonstrated antipathy on the part of the accused towards the deceased such as, for example, Bastan[4] and the cases there discussed. Nor is it submitted by the prosecution that the accused's account of prior advances by the deceased and of his reaction to the deceased's approach immediately prior to the fatal assault constitute lies from which an inference of consciousness of guilt could be drawn. It is simply submitted that the relationship evidence shows the accused's account should not be accepted.
[4][2009] VSCA 157.
Paradoxically, perhaps, if the evidence were substantially accepted, the coherence and relatively detailed nature of the accused's account of what triggered the assault may tend to strengthen the prosecution's case as to the extent to which the accused was affected by alcohol at the time of the killing.
For the reasons I have explained however, I am not persuaded that the video clips are probative of the probable state of the accused's mind at the time of the killing in the way the prosecution submits.
The fundamental issue in the present case is whether the prosecution can prove murderous intent. The prosecution case relies on the circumstances of the killing as a whole, but in particular the extent and degree of the injuries inflicted upon the deceased and the partial admissions of the accused.
These partial admissions describe the deliberate sequential infliction of progressively more severe injuries upon the deceased while the accused was in an enraged state. The record of interview also describes the deceased's state of mind at various points of time and raises the issue of whether the accused intended to do more than ‘shut the deceased up’ and, in particular, whether he intended to cause really serious injury.
This question is complicated because on one view the accused's admissions do not acknowledge the full extent of the assault on the deceased, and in particular, the apparent use of a chair as a weapon, (which is indicated by circumstantial evidence), and the number of separate injuries to the victim's body (indicated by the evidence of the pathologist).
The resolution of the inferences to be drawn from the specific matters which I have identified, and the conclusion which a jury might draw as to the accused's intent from the evidence as a whole, could not, in my view, be materially advanced by the video evidence. I am fortified in this view by the observations of both Nettle, and Neave JJA in the Court of Appeal. Nettle JA observed that the prosecution was unable to explain how the accused's propensity when drunk to engage willingly and apparently amicably in obscene and camp behaviour with the deceased made it more or less likely that the accused murdered the deceased. Neave JA, with whom Tate JA agreed, observed that the video clips had little probative value in establishing that the accused intended to kill the victim or inflict very serious injury on him.
It follows from my conclusions that the video clips lack sufficient probative value to be admissible. Further, and in any event, they have the potential to be prejudicial to the accused. It is likely that the attitudes of different members of a jury of 12 would vary with respect to their contents. It is highly possible that some jurors might regard them as reflecting very materially and adversely upon the character of the accused. They include displays of drunkenness and genital exposure, and language including racist language, which have the serious potential to prejudice a juror's view of the accused. The senior prosecutor's characterisation of the behaviour on the clips as ‘abnormal’ highlights this potential. At best, aspects of the evidence would be a significant distraction to a jury.
Accordingly, the evidence should not be admitted. Any marginal general relevance this relationship evidence may have is outweighed by its prejudicial effect and it should be excluded pursuant to ss 135 and 137 of the Evidence Act 2008.
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