R v King (Ruling No 3)
[2008] VSC 486
•13 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1517 of 2006
| THE QUEEN |
| v |
| GRAEME KING |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2008 | |
DATE OF RULING: | 13 November 2008 | |
CASE MAY BE CITED AS: | R v King (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 486 | |
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Murder - preliminary application to exclude evidence as to financial position of accused and deceased wife – recollection of witness 14 yrs after the event – unreliable witness – real and substantial unfairness – special forensic disadvantage - prejudicial potential of witness’s evidence outweighs probative value – evidence only allowed subject to exclusions.
Preliminary application to exclude evidence as to insurance policy resulting in financial advantage – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr H T Mason with Mr T Vriends | Faram Ritchie Davies Lawyers |
HIS HONOUR:
Preliminary objection is also taken to evidence which the prosecution proposes to adduce as to financial considerations affecting the accused man at the date of his wife's death.
The evidence is summarised in the Crown outline of opening, as follows:
Mr and Mrs King's poor financial situation and the financial benefit to the accused at Mrs King's death.
· At the time of Mrs King's death the Kings were struggling financially. According to the accused in his record of interview they always struggled and they were in no worse a position at the time.
· On the day before her death Kaye received a phone call from her bank manager, Mr Gannon, to tell her that the bank had dishonoured a cheque that either Mr or Mrs King had written on their overdraft account.
· Mr and Mrs King attended at the bank in Shepparton in the morning of 25 June 1991 to discuss the state of their account with Mr Gannon. Although Mr Gannon does not recall the amount of their overdraft limit he recalls them coming into the bank to discuss with him the cheque that he had dishonoured and the state of their overdraft account.
· Mr Gannon told them that if their account did not improve he would have to send it to the bank's credit management section. Mr Gannon heard about Mrs King's death later that day whilst watching a television news service.
· The accused stood to benefit from his wife's death in two ways. First, her will provided for all her property to go to the accused if he survived her by more than 30 days. Secondly, about four weeks prior to her death a life insurance policy was taken out on Mrs King's life. The policy was for the sum of $100,000.
· The policy was taken out with Commonwealth Life Limited. The accused received the application form for the policy in the post because he had a credit card with the Commonwealth Bank. The maximum amount of cover offered was $100,000 and the cover could be taken out on the life of the credit card holder, the spouse of the credit card holder or both. The policy was taken out on Mrs King's life only, and for the maximum amount of cover available. The monthly premiums were to be deducted from the accused's credit card. The policy was in Mrs King's name, but under the terms of her will the benefit would flow to the accused after her death.
Objection is made first to the evidence of Mr Gannon, as to bank related matters, and secondly to evidence concerning the insurance policy on the deceased's life.
I turn first to Mr Gannon. Gannon made a statement to police in July 2005. At that time he was 63 years old. He had retired as a bank manager in 1993. Prior to this he had worked for the State Bank from 1958 onwards. In 1990 he took the position of senior manager at the Shepparton Branch. In 1990 and 1991 the Kings were customers of the branch.
In his 2005 statement Gannon said, “They ran a joint account. It wasn't an account in a business name. From my recollection they had a $50,000 overdraft which was always drawn to the limit.” He also said he often tried to get the Kings to reduce the overdraft to a satisfactory level. He further stated that he remembered that some time in late 1990 the Kings had made a term deposit for a substantial amount in joint names. Upon the deceased's death he was able to sign it over to the accused.
He went on to state that just prior to the deceased's death he remembered the Kings financial situation had become very serious and he had to dishonour "a fairly large cheque” as they had only recently received their milk cheque and were already exceeding their overdraft limit. He rang the Kings and spoke to Nancy Kaye. She was upset when told he would dishonour the cheque. The next day the Kings came to the bank to try and get an increase in their overdraft. He told them he could not grant the increase and that the Commonwealth Bank would not tolerate the way the account was operating and would want it referred to the Credit Management Department, the Commonwealth Bank having taken over the operations of the State Bank. Nancy was distressed but the accused did not seem worried.
Gannon stated, "I also remember I tried to use the money they had in trust as a lever but they didn't want it used to reduce the debt." When they left Nancy was very upset and crying. Gannon believed that they came to the bank the day she died. When he got home, he saw the 6pm TV local news and heard of the deceased's death. His immediate reaction was that he had, "Killed her" i.e. caused her to commit suicide. He also recalls the weather on the day as very dark and miserable; raining heavily all morning.
At the previous trial it was demonstrated that Gannon's recollection was very materially incorrect.
(a) The Kings did not have a $50,000 overdraft.
(b) Their principal joint account was overdrawn in the sum of $18,460 only.
(c) The Kings did not have a trust or term deposit account in a substantial amount with the bank.
(d) A second joint account had a credit balance of only $2174.55.
(e) Gannon cannot have been correct in his recollection that he tried to use the substantial amount of money in trust as a "lever."
(f) Gannon's recollection that Mrs King died on Monday after he saw them on Friday, "I think" was incorrect.
The true state of the Kings' accounts is shown in a letter signed by Gannon and sent to the solicitors acting for Mrs King's estate on 10 July 1991.
At my direction the prosecution have now filed a further statement dated 10 November 2008 foreshadowing the evidence it is now sought to be led from Gannon. That statement describes the dishonoured cheque incident as follows:
I have been asked to recall the events that occurred on the day Nancy died and the days leading up to her death in 1991. On the Monday morning before her death, I was handed a list of cheques that were given to me as to whether the bank should authorise payment or not. This list would be handed to me on a daily basis at varying times during the morning depending on the amount of cheques. This list detailed cheques that had been written and were either overdrawn past their allowed limit, or had insufficient funds to cover the cheque. I would then make a decision as to whether I would allow a cheque to be processed or not. In cases where I did not allow the cheque to be processed, I would as a matter of courtesy, contact the client and inform them that the cheque would be dishonoured. I remember this procedure as I had been doing this for some 20 years. It was bank policy to review the list and then stop payment. It wasn't however, policy for me to ring; I did this out of courtesy. One of the cheques that I had been asked to decide on this day was a cheque written by Nancy or her husband Graeme King. I cannot tell you who the cheque was made out to or the amount that it was for; all I can say is that it was a for a substantial amount that put them over their allowed overdraft limit of which I couldn't allow. I also remember that we had recently been taken over by the Commonwealth Bank and they had different rules about allowing accounts to be over their overdraft limit. They were very strict on this and I had to follow policy, which gave me less flexibility. I then rang the King residence a short time later and spoke with Nancy. I told her that I had no option and had to dishonour the cheque. She became upset and pleaded with me to reconsider. I finished the phone call and rang other clients for the same reason. I believe the call that I made to the Kings was around lunch time.
The statement also describes a meeting the following day as follows:
The following day; I believe that it was around 10 am, both Graeme and Nancy came to the bank to try and get an increase of their overdraft. We spoke about increasing the overdraft, but I told them that I was not able to as it was out of my hands. I also told them that because of Commonwealth Bank policy, the bank would not tolerate the way this account was operating and they would want the account referred to the Credit Management Department for attention. I also told them that this was what my intention was. Graeme didn't seem to worry or care, but Nancy became very distressed. I would say that they were with me for about an hour. We discussed their financial affairs, but at the end of the meeting I told them that I could not help them anymore. We left it that they would try and sort out their problems, otherwise I would refer it to the Credit Management. When they left Nancy was very upset and crying. I continued with my other duties and then went home. This meeting interview would have been noted in their file, along with the fact that the cheque had been dishonoured. I am not aware of the location of this file. I had not arranged a meeting with them; they had come in on their own accord.
The statement then records Gannon's belief that he saw Mrs King on the day she died, by reason of his recollection of a reaction of shock to a news report of her death that evening. The statement also recites the contents of the letter of 10 July 1991 signed by him and makes some limited comment upon it.
There are two further observations which it is convenient to deal with before returning to the substantive matters set out above. In my view, each should be excluded as speculative and/or of no probative effect. Firstly, "I know that in my previous statement I believed that the Kings may have had some form of trust fund. I am not really sure about this or whether they in fact did have a trust fund." "In my previous statement I stated that from my recollection the Kings had a $50,000 overdraft. I believe that I was mistaken. I would expect that in 1991 farms similar to the Kings would have operated on a $15,000 overdraft or thereabouts."
Counsel for the accused now submits Gannon's evidence should be rejected completely because:
(a) in its revised form it is not probative of serious financial difficulty;
(b) its history demonstrates its unreliability; and
(c) it contains a forensic sting. The accused told police in 1991 of his movements on the day of his wife's death and did not refer to going to the bank. The inconsistency will be relied on by the Crown as going to the accused's credit. It will encourage the jury to believe the accused lied about his movements in the hours immediately prior to his wife's death.
I accept that the evidence does not demonstrate financial difficulty of the degree suggested by Gannon's previous statement. I also accept that the history of Gannon's evidence demonstrates a very high degree of previous unreliability as to the exact nature of the Kings' financial position. This is presumably due to the elapse of some 14 years between the events in issue and the date of his first statement to police. Gannon's previous evidence also demonstrates a purported confidence which has been demonstrated to have been misfounded. Nevertheless the true position of the operating accounts at the Shepparton branch, as at the date of death, is now set out in the bank's letter.
The question of reliability thus now attaches, essentially, to the history of a phone call concerning a dishonoured cheque and a meeting the following day at the bank. The Crown submits this evidence is relevant:
(a) to the deceased's state of mind; and
(b) to the motivation of the accused and in particular the motive or possible motive of financial advantage.
It seems to me that the evidence is relevant, both contextually to the other evidence of relationship which I have admitted, and contextually to the evidence concerning an insurance policy to which I shall shortly come.
The issue of unreliability is also one which the defence can squarely address in cross-examination. There is evidence from no other witness of a phone call on the Monday, including Jason King, who was at home that day. Further, the inaccuracy of Gannon's initial statement in a number of serious respects, must raise doubts as to the reliability of his further recollection. Nevertheless, these matters would ordinarily be matters for the jury.
I am, however, troubled by the particular forensic disadvantage inherent in the evidence of a meeting with the Kings on the date of the deceased's death. Having considered the course of Gannon's statements and the transcript of his evidence at the previous trial, the reliability of Gannon's evidence in regard to dates, must be very seriously open to question. The elapse of time has in turn, through no fault of the accused, put him in a position where no diary, file note or other record exists which demonstrates whether his recollection of events of the day, as set out in his 1991 statement, should be preferred to that of Gannon, 14 and now 17 years later. The overwhelming probability is that if Gannon had been interviewed in 1991 such a file note or diary entry would have confirmed the truth one way or the other as to whether the Kings saw Gannon on the date of Mrs King's death. Gannon's latest statement expressly states that the meeting/interview would have been noted in their file.
Further, in my view, the contradiction between Gannon's evidence as to when he saw the Kings and Mr King's statement is seriously prejudicial to the accused to such a degree as to constitute real and substantial unfairness. The accused is at risk of a finding by the jury that he lied about what he and his wife did in the hours immediately before her death in circumstances where relevant records are now lost.
As against this, the probative value of Gannon's evidence as to date, is highly debateable. It is based on a recollection 14 years after the event of a shock reaction to a news report. It is accompanied by a faulty recollection of a series of very material matters about which the witness has been demonstrated to be wrong.
In my view, Gannon's evidence should be admitted subject to the exclusions I have already mentioned and to the exclusion of evidence as to dates going beyond a statement that the cheque dishonourment telephone conversation occurred shortly prior to Mrs King's death and the bank meeting occurred the day after such a conversation.
Gannon should not be permitted to give evidence of his revised opinion that this occurred on the days of Monday and Tuesday, nor should he be permitted to give evidence of his belief that he saw the Kings on the day of Mrs King's death because of a recollection of emotional reaction to a news program on the TV or otherwise. In other words, in my view, the prejudicial potential of Gannon's evidence as to the date on which he saw the Kings substantially outweighs its probative effect and it should be excluded.
I turn then to the insurance policy. The insurance policy was obtained in response to an offer from the bank as credit card provider some four weeks prior to the deceased's death. For reasons which it is presently unnecessary to elaborate, I accept the detailed submissions of Mr Vriends, that there was nothing inherently suspicious in the obtaining of this policy.
Nevertheless, in my view the Crown is entitled to adduce evidence that the deceased's death resulted in financial advantage to the accused as a result of arrangements, of which he was aware. That circumstance forms part of the basket of circumstances upon which the Crown relies in seeking to persuade the jury that Mrs King's death was not an accident.
The relevant principle was stated by Gibbs CJ and Mason J in Chamberlain v. R (No.2):[1]
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt.
[1](1984) 153 CLR 521 at 536.
In so ruling I accept that the jury will require specific directions as to the question of motive.
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CERTIFICATE
I certify that this and the 7 preceding pages are a true copy of the reasons for Ruling of The Hon. Justice Osborn of the Supreme Court of Victoria delivered on 13 November 2008.
DATED this third day of December 2008.
Associate
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