R v Martin
[2005] VSC 121
•15 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT SHEPPARTON
CRIMINAL DIVISION
No. 1476 of 2004
| THE QUEEN |
| V |
| DAMIEN ROBERT MARTIN |
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JUDGE: | KAYE J. | |
WHERE HELD: | SHEPPARTON | |
DATE OF HEARING: | 7-11, 15-19, 21 March 2005, 21-22 April 2005 | |
DATE OF RULING: | 15 March 2005 | |
CASE MAY BE CITED AS: | R v Martin (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 121 | |
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CRIMINAL LAW – No case submission – Circumstantial case – Lies as consciousness of guilt.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Hillman S.C. | Office of Public Prosecutions |
| For the Accused Damien Robert Martin | Mr G. Steward | Victorian Legal Aid |
HIS HONOUR:
In this case, the accused man, Damien Robert Martin, is charged with the murder of Adrian Joseph Power on Shepparton on 24 October 2003. The Crown has closed its case. On behalf of the accused man, Mr Steward of counsel has submitted that there is no case to answer and that I should direct the jury to acquit his client.
The prosecution case is essentially a circumstantial case. The Crown relies on a number of factors from which it asserts an inference of guilt should be drawn by the jury against the accused man. One of the factors relied on by the Crown consists of what the Crown alleges to be lies told by the accused man in his record of interview conducted with him by the homicide squad on 30 December 2003. Mr Steward has contended that the Crown should not be permitted to rely on those lies as evidence of the accused man's consciousness of guilt.
Accordingly, it is first necessary for me to rule whether the lies can be relied upon by the Crown before the jury as disclosing a consciousness of guilt before I determine the outcome of the no case submission.
It is not necessary for me to recite the facts of this case in any detail; the bare facts will suffice. On 22 October 2003 the accused man, the deceased man, Power, and Sean Michael Petot booked into the Midpark Caravan Park on the Midland Highway, Mooroopna. They were allocated Caravan 5. The three men stayed at that caravan for the next two nights.
On 24 October 2003 they went shopping at the Safeway food store in Shepparton. Later the three of them were observed east of Daish's Bridge on the Peter Ross‑Edwards Causeway, travelling in a western direction. Their behaviour was such that at 6.50 p.m. they were spoken to by Sergeant Kelly of the Shepparton police, and Senior Constables Scopelliti and McConkey of the Mooroopna police. Those officers directed the three men to a bitumen bike and pedestrian path, which ran alongside the roadway, for their own safety. The bitumen path intersected with a path which was located under Daish's Bridge and the intersection was just south of Daish's Bridge.
The police last saw the three men when they had got on to the pathway. At that stage, Mr Power had headed off in front of the other two and Martin and Petot had manoeuvred the shopping trolley on to the pathway.
On the morning of the next day the badly beaten deceased body of Adrian Power was found in long grass a short distance south of Daish's Bridge. The police found bloodstains 80 metres west of the point where the path intersected with the path under Daish's Bridge, and that has been designated as Area A on Sketch B, which is the sketch plan of the area. Sixty metres west of that area were further bloodstains and that area has been designated Area B.
Drag tracks were observed due south of Area A in the grass. 26 metres south of Area A there was some disturbed ground on which was located a cigarette lighter and some bloodstains. A further 35 metres south was located the deceased man's body. In other words, his body was some 61 metres south of Area A. The trail in the grass had gone directly from Area A to the body. Seven metres south of the body was the deceased man's T-shirt.
The deceased man had been very badly beaten indeed. He had sustained 55 stab wounds to his upper body, 32 of which were to his neck. He had been severely beaten with a rod and his head had been stomped on. His body was very bloody, especially to the head and upper torso area.
At 9.15 a.m. on 25 October Petot and the accused man, Martin, decamped from the caravan park.
Later in the rubbish bin, appurtenant to Caravan No. 5, was found a Dunlop shirt of Damien Martin, and the Pulse top which Martin had earlier had around his waist. There was blood to the upper part of the shirt and to the sleeves of the Pulse jumper. Also in the bin was some cut off denim shorts and dark Klue brand jumper belonging to Petot. The shorts were quite heavily stained with blood. There was also blood on the jumper, especially its collar.
DNA evidence shows that it is the deceased man, Adrian Power's blood which is on the shorts, the shirt and the two jumpers.
After leaving the caravan park on 25 October Petot and Martin hitch-hiked to Eaglehawk. There they stayed at a friend of Petot's, Christine Regan. Martin left for Adelaide on or about 30 October by bus. Petot remained at those premises where he was arrested on 8 November. On 29 December Mr Martin was arrested at premises in Norwood in South Australia.
Mr Hillman seeks to rely on the following lies which he has identified by reference to the transcript of the tape recorded record of interview. I interpolate that the transcript has not been provided to the jury but has been provided to me for my assistance.
First he relies on Questions 248 to 250, and the answers to them, in which the accused man stated that he could not tell who the clothes in the bin belonged to.
Next he relied on the accused man's answers to Questions 265 to 271, when he said he could not say who owned Petot's jumper.
Third he relies on the answers to Questions 274 to 285, in which the accused man denied that he owned or wore the Dunlop shirt.
Fourth he relies on the accused man's answers to Questions 287 to 288, in which the accused man denied that he owned the Pulse jumper and fifthly, he seeks to rely on the answer to question 289 where the accused man stated he could not say how the clothing, which I have just referred to, came to be in the bin.
For the purposes of the argument before me, it is common ground that the prosecution can prove that each of the answers, to which I have just referred, are capable of being considered by the jury to be lies by the accused man, when he was interviewed by the police.
Mr Steward, on behalf of the accused man, has argued that the Crown should not be permitted to rely on those lies as evidencing a consciousness by the accused man of his guilt.
Mr Hillman, Senior Counsel, who appears to prosecute in this case, put the manner in which he desires to use the lies in the following way. Mr Hillman contended that the accused man Martin had told a lie when he told the police he did not know who owned and who had worn the clothes which were covered the blood of the deceased man Power. Those clothes belonged to Petot and Martin. The lie was about a material matter. The jury would be entitled, subject of course to an Edwards direction, to infer that the lies disclosed a consciousness by the accused man of his guilt. This is because, so Mr Hillman argued, the accused man knew that if he told the truth about the clothing, it would implicate him in the killing, because it was the clothing worn at the time of the killing which was covered with Power's blood.
The relevance of a lie disclosing a consciousness of guilt is that it is an implied admission of guilt. In order to regard a lie as an implied admission of guilt, the jury must be satisfied, first, that the alleged lie is a deliberate untruth, second, that it relates to a material issue in the case and third, that the accused man told the lie because he knew that the truth of the matter about which he lied, would implicate him in the offence. See R v Edwards.[1]
[1](1993) 178 CLR 193 at 211.
The question for me is not whether the jury should be satisfied of each of the above three matters. Rather, the question for me at this stage is whether the alleged lies are capable of being considered by the jury to be material, so that the accused man told those lies because he knew that the truth about the matter would implicate him in the murder of Power.
The test to which I have just referred to is well exemplified by the two recent decisions of the Court of Appeal of the Supreme Court of Victoria. In R v McMahon.[2] 64 the accused and the deceased man lived together at premises in Ballarat. Those premises caught on fire on the night of the alleged murder. The accused man fled from the scene. The deceased man's body was found inside and he was proven to have died of blunt instrument trauma and incisions to the neck.
[2](2004) VSCA.
In evidence, the accused man stated that on the night of the death of the deceased, he went to bed and awoke to find two men sitting with the deceased man in a room in the house. He then went back to bed and heard a bang, upon which he fled from the premises.
The prosecution at the trial submitted that the evidence concerning the two men was a lie and was capable of being used by the jury to prove that he had a consciousness of guilt. In other words, the lie was told because he knew that the revelation of the truth would implicate him in the offence.
On appeal the Court of Appeal agreed with that reasoning. The learned President, Justice Winneke, with whom Buchanan JA and Coldrey AJA, each agreed, put the matter as follows:[3]
"Generally speaking, there is no reason why a lie which the jury accept has been told by an accused person in or out of court in respect of a material matter, in the sense that it is concerned with a circumstance or event connected with the offence, cannot constitute an admission against interest, provided that the jury properly instructed determine that it has been told from a consciousness of guilt. If it were otherwise, it would mean that a jury which rejected as a fabrication an elaborate alibi mounted by the accused on his trial would not be entitled to use its finding as some evidence probative of the guilt of the accused. Speaking for myself, I would have thought that the evidence of the applicant that he had seen two strangers in the unit in the company of the deceased shortly before his death, if rejected by the jury as a deliberate lie, is the very sort of lie which a jury properly instructed would have used as demonstrating a consciousness of guilt. It goes without saying that each case must depend upon its own circumstances, including the nature and materiality of the statement which is rejected by the jury as untrue."
[3]At para 19.
That case can be contrasted with the decision of the Court of Appeal in R v Dung Chi Dang.[4] In the case, drugs were found in two bedrooms of a house occupied by the accused man's wife. The accused man had also lived in the house until ten days before his arrest. In the second bedroom there was also located some sandwich bags. In evidence the accused man said that he had had nothing to do with the sandwich bags. In cross-examination he said that he sometimes used them if he was going to work because he would put a sandwich in them.
[4](2004) VSCA 38.
The trial judge permitted the prosecutor to use the inconsistency in the evidence which I have just referred to as a lie revealing a consciousness of guilt. The Court of Appeal held that the trial judge erred because the lie went to a matter which was not material. Thus, the telling of a lie could not disclose a consciousness of guilt.
In this case, the lies on which the Crown seeks to rely concern what may be fairly regarded as a central piece of evidence in the case. The clothing of Martin and Petot, stained with the deceased's man blood, link both Martin and Petot to the killing of the deceased man. In my view, the jury are entitled to conclude that Martin denied that the Dunlop shirt and the Pulse brand pullover were his because he was concerned that if he were to tell the truth it might implicate him in the killing of the deceased man.
Martin's clothes were left in the same bin as Petot's. The two men were seen by the police with the deceased a short distance from where the killing occurred. In my view, the jury are entitled to infer that Martin lied to the police when he said he did not know who owned Petot's jumper, because he knew that if he admitted that it was Petot's that would also link him to the killing.
Thus, I consider that the lies are capable of being used by the jury as an implied admission of guilt by the accused man Martin, subject of course to an appropriate Edwards direction being given to them. Mr Steward, in my view correctly, accepted that the lies to which Mr Hillman has referred are about a material matter. However, his submission was that a truthful answer given by Martin might not necessarily have implicated him in the offence. That may well be so. However, that is not the test for me at this stage. The test for me at this stage is whether the lie is capable of being reasonably considered by the jury as one told because if the accused man had told the truth it might implicate him in the crime.
For the reasons I have given I conclude that a jury is capable of reasonably concluding that the lies were told for that reason, and for those reasons I would permit the Crown to rely on those lies as revealing a consciousness of guilt.
I add to that conclusion one small rider that relates to Question 248. That question is, "What can you tell me about the clothing?", that is the clothing in the bin, to which the accused man answered, "Nothing".
I do not consider that that answer, standing alone, is sufficiently unambiguous to be capable of reasonably being considered by the jury alone to reveal a consciousness of guilt.
However, I do consider that that answer is contextual to the answers subsequently given in Answers 249 and 50, to enable it to be used as the forerunner to the lie which is relied on in the answer to Question 250.
I now turn to the no case submission. The Crown's case is that the two men, Martin and Petot, were jointly involved in the killing of the deceased man, Power. The Crown puts its case on an alternative basis. First the Crown puts it that the accused man and Petot acted in concert in the murder of Adrian Power. Alternatively it puts it that the accused man aided and abetted Petot in the murder of Adrian Power, or alternatively Petot aided and abetted the accused man in the murder of Adrian Power.
Mr Steward has submitted that I should direct the jury to acquit. He submitted that there is no evidence that his client was even present at the time when Power was killed.
Further, he also contended that there is no evidence of any conduct which might constitute an agreement or understanding between the accused man and Petot to murder the deceased man.
He also contends that there is no evidence of any conduct by the accused man, Martin, which constituted the aiding and abetting by him of Petot in the murder of Power.
The question for me on a no case submission is not whether on the evidence the accused man should be convicted. That is essentially the ultimate question of fact for the jury.
Rather, the question which I must determine is one of law, namely, whether on the evidence led by the Crown the accused man could lawfully be convicted. See May v O'Sullivan[5] and Zanetti v Hill.[6]
[5](1955) 92 CLR 654 to 658.
[6](1962) 108 CLR 433 at 442.
Further, the test for me is not whether a verdict of guilty would be unsafe or unsatisfactory and thus would be set aside on appeal. Even if a Crown case is weak it must nevertheless be left to the jury, unless on the evidence as it stands at the close of the Crown case the accused man could not be lawfully convicted. See R v Doney;[7] Attorney General's Reference (No. 1 of 1983).[8]
[7](1990) 171 CLR 207 at 215.
[8](1983) 2 VR 410 at 417.
As I stated, the Crown's case is essentially a circumstantial case. There were no eyewitnesses to the killing of Adrian Power, and thus the Crown's case depends on the drawing of inferences from a number of circumstantial facts which it has so far proven. In such a case it is important to bear in mind that the jury does not look at each circumstance in isolation in order to determine what inference or inferences it might draw. The jury must consider the weight to be given to the united force of all the circumstances put together. See Chamberlain v R No. 2.[9]
[9](1984) 153 CLR 521 at 534, per Gibbs CJ and Mason J.
Of course, in order to rely on a fact from which to derive an inference of guilt the jury must be satisfied of that fact beyond reasonable doubt.
The authorities establish two important principles in respect of the determination of a no case submission in a circumstantial case. First, the trial Judge is not entitled to direct an acquittal where at the close of the Crown case he considers that there is still open a reasonable hypothesis consistent with the innocence of the accused man, which the Crown has not excluded.
That principle was clearly established in Attorney General Reference No.1 of 1983 where the court said:[10]
"The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for a jury and therefore if the Crown has led evidence upon which the accused could be convicted, a trial Judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly, a trial Judge should not rule that there is no case for the accused to answer simply because he has formed the view that if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies J. explained in Plomp's case in a case based on circumstantial evidence the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt."
[10]Above at p.415 to 416.
The second relevant principle is that on a no case submission, the test is whether a reasonable jury could reach the conclusion that any inference consistent with innocence was not reasonably open on the evidence.
In applying that test, it is important to bear in mind that the drawing of inferences is essentially the province of the jury as the sole judges of the facts. The rational of the jury system, is that it brings into court, as judges of fact, twelve ordinary persons who make judges and draw inferences on the facts presented to them and do so based on their life experience, wisdom and good sense.
As the High Court observed in Doney's case:[11]
"The purpose and genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters."
[11]at p.214.
Thus the test, as I have stated, is whether a reasonable jury could reach the conclusion that any inference consistent with innocence was not reasonably open on the evidence. See R v Cengiz.[12]
[12](1998) 3 VR 720 especially at 721 per Ormiston JA and 735 to 6 per Harper AJA.
Thus it is not sufficient for the accused man at this stage to show that the Crown has not excluded a reasonable hypothesis consistent with innocence. In order to persuade me I should direct an acquittal, I must be persuaded that such an inference is one which the jury cannot rationally exclude.
Mr Steward, on behalf of the accused man, contended that on the evidence of the pathologist Dr Woodford, the killing occurred between 6.45 p.m. on 24 October and 6.45 a.m. on 25 October. Thus while the killing occurred geographically close to where the three men were last seen together, it was not shown that the killing occurred shortly after they were last seen together. Thus it was submitted, there is no evidence that Martin was present at the scene of the crime.
Further, Mr Steward contended that the evidence of the blood on Martin's clothing was consistent with him not being present at the scene, but later returning in search of his friends and finding Power dead.
Alternatively, it was put that the evidence of blood on Martin was consistent with him intervening to try to protect Power or alternatively, with him coming into contact with Power, after the fatal blows had been inflicted on him.
Further, it was submitted there was no evidence of concert or of aiding and abetting. No evidence has been adduced as to any acts or words of the accused man establishing an arrangement between the two men to kill Power and no evidence has been adduced to show that the accused man Martin helped, encouraged or intentionally conveyed his agreement to Petot to the killing of Power.
Mr Hillman of Senior Counsel outlined the Crown case to me in some detail. Again, it is important to bear in mind that each of the items on which Mr Hillman seeks to rely should not be looked at in isolation from each other. Rather, it is their combined and unified force which is relied upon to give rise to the inference of guilt which the Crown would seek the jury to draw.
The following facts as outlined by Mr Hillman are relevant to determining the no case submission made by Mr Steward. First, the deceased, Petot and the accused man were seen together at 6.50 p.m. near Daish's Bridge by the three police who I have referred to. Thus the killing occurred geographically very close to where the three men were last seen in each others' company. In my view, the jury would be entitled to infer from that evidence that the killing occurred shortly thereafter. There may well be competing inferences; for example, that Martin had left the scene and returned after the killing was completed. However the other facts in this case, including the blood on Martin's clothing and the fact that he remained in the company of Petot after the death of Power, lead me to conclude that it would not be irrational for a jury to reject those inferences as unreasonable. As a matter of common sense, a jury would, in my view, be correctly drawn to the conclusion that where three men are seen walking on to a track, 80 metres later one of them is killed, the two remaining men have blood on their clothes and they remain together thereafter, those facts combined would make rational the only relevant inference, namely that the killing occurred shortly after the three men were sighted together by the police.
The next factor relied on by Mr Hillman is the nature of the injuries sustained by the deceased man. It is clear from the nature of the injuries and the number of them and the fact that the deceased man sustained defensive injuries that the killing took place over a period of minutes; in other words, death was not instantaneous. In those circumstances the jury would, in my view, reasonably conclude that Martin was not only present at the scene but also had the opportunity to join in the attack. Any other inference, in my view, the jury would be entitled to reject as not reasonable.
The next factor relied on by Mr Hillman is the nature of the injuries sustained by the deceased. As I have stated, he was injured by a number of mechanisms. He was stabbed, he was beaten, he was stomped on and he was kicked. There were multiple blows to different parts of his head and upper torso. At the very least a jury could reasonably conclude that those injuries are consistent with an attack on the deceased man by two persons. I consider it essentially a jury question whether the jury were to conclude that an attack of that nature was more likely to have been carried out by one person or two. It is true that Dr Woodford at p.133 of the transcript has stated from a pathologist's point of view that the attack could have been conducted by one person or two, and no doubt that is correct from a layman's point of view also. But it is essentially a matter for the jury to make what they would of the multiple injuries and blows inflicted on the deceased man.
The next relevant circumstance is, of course, that the accused man Martin had the blood of Adrian Power on his clothing. He had blood on the top of his Dunlop shirt. The evidence of Dr Heyes, the DNA expert, is that the pattern of blood on his upper shirt is consistent with at least some of it coming into contact with his shirt while he wore it.
There was also blood on the sleeves of the accused man's jumper. The video of the Full House Saloon, which was tendered in the evidence, shows that at that time the accused man had the jumper around his waist.
In my view it would not be unreasonable for the jury to conclude that the deceased man's blood came onto the clothing of the accused man while he was wearing those clothes.
On the evidence Martin and Petot returned to the caravan on the night on which Adrian Power died. There they unloaded the cans which they had purchased in the supermarket. Some of those cans had blood on them. DNA tests have shown that some of that blood was the blood of Adrian Power. One of the cans which had the blood of Power on it also had the fingerprint of the accused man, Martin.
At the caravan both men left their clothes in the bin; that clothing, as I have stated, being stained with Power's blood.
They left the caravan park together. Together they hitchhiked to Eaglehawk and they remained together until Martin left for Adelaide on 30 October.
The final fact relied on by Mr Hillman are the lies told by the accused man to the police in his record of interview, to which I have referred.
As I have stated, the combined force of those facts would, in my view, make it reasonable for the jury to conclude that the accused man was present at the scene of a killing. In my view the jury would be entitled to reject as unreasonable any alternative inference, namely, that the accused man was not present, but later for some reason or other returned to the scene.
Further, I consider that the nature, number and severity of the injuries are such as would entitle the jury to reasonably conclude that two people were involved in the killing, particularly where: firstly the victim and the other two men were seen together shortly before the killing occurred;
Secondly, each of the other two men had the blood of the victim on his clothes;
And thirdly, the two men left the scene together and remained together for a period of some five or six days.
That last point is, in my view, significant. The killing of the deceased man was ferocious, savage and utterly brutal. The amount of violence inflicted on the deceased man was truly frightening.
If in fact the accused man was an innocent bystander a jury might well consider it extraordinary that he might have remained in the company of Petot, dispose of his clothes with the clothing of Petot, travelled with Petot to Eaglehawk and remained in the house at which Petot was residing, for a few days at Eaglehawk. In his record of interview at Question 104 the accused man did not even know Petot's surname.
All of those factors combined would, in my view, entitle a jury to reasonably conclude that the accused man and Petot were jointly involved in the commission of the crime of murder in the manner put by the Crown.
There are, of course, other possibilities which have been referred to by Mr Steward. It is not for me to determine whether those possibilities ought to be accepted by the jury. It is sufficient for me to conclude, as I do, that on the outline of the evidence put by the Crown in this case it would not be unreasonable for the jury to reject those other possibilities as unreasonable hypotheses consistent with innocence.
Finally, the inference of guilt is in my view strengthened by the lies told by Martin in his record of interview in which he denied knowledge of the clothes of Petot and himself which were stained with Power's blood.
As I have held, that evidence is reasonably capable of disclosing a consciousness of guilt of the accused man. In other words, a jury might reasonably conclude that Martin lied about the clothing, because he realised that the truth about them might implicate him in the murder. That evidence reinforces the significance of the blood on the clothing and the inferences to which I have already referred.
Taking all that evidence together, as I stated, I consider that the jury could reasonably conclude beyond reasonable doubt that Martin either acted in concert or aided and abetted Petot or was aided and abetted by Petot in the murder of Power.
I do not consider that the jury would act unreasonably if they rejected any competing inferences consistent with the innocence of the accused man as not being reasonably open to them.
For those reasons, I hold that the accused man does have a case to answer and I reject the application made on behalf of the accused man to direct the jury to acquit the accused man.
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