R v Maybus (Ruling No 1)
[2016] VSC 57
•25 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0143
| The Queen |
| v |
| Luke Maybus |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 and 23 February 2016 |
DATE OF RULING: | 25 February 2016 |
CASE MAY BE CITED AS: | R v Maybus (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 57 |
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CRIMINAL LAW – Ruling – Application by witnesses to give evidence by videolink – s 42E Evidence (Miscellaneous Provisions) Act 1958 – R v Cox & Ors (Ruling No 6) (2005) 165 A Crim R – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson Ms A Moran | Office of Public Prosecutions |
| For the Accused | Mr S Petrovich Mr S Tovey | Markotich Lawyers |
HIS HONOUR:
Introduction
Luke Paul Maybus is on trial for murder.[1]
[1]There are two other charges on the indictment to which he has pleaded guilty, namely, theft of a Ford van and the arson of that van.
The prosecution have applied under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’) for several witnesses – Matthew Grech, Nicole Grech, Adam Vickers, Tym Livett and Paul Sherrin – to give evidence by audio visual link. The defence only objects to Matthew Grech giving evidence in that way.
Background
By way of background, the prosecution alleges that on the 24 May 2014, Maybus, a fully patched member of the Bandidos, was at the Brunswick clubhouse with two other fully patched members, John Walker and Joseph Girgis. Walker’s dog, Trouble, was tied up just outside the clubhouse. The dog was approached by one Michael Strike, who was alcohol and drug affected. The dog became agitated. Walker opened a door of the clubhouse and told Strike to go away. Instead, Strike approached Walker who dragged him inside the clubhouse. Strike was somewhat incoherent and mentioned something about the firebombing of the Bandidos clubhouse in Dandenong and that he knew a former president of the Dandenong chapter of the Bandidos, one Michael Bogovic. Maybus and Walker then began to assault Strike. During some of that assault, Girgis went into another room of the clubhouse called the “church room” and tried to contact Bogovic.
The prosecution alleges, relying heavily on the account of Girgis, who has pleaded guilty to assist an offender contrary to s 325 of the Crimes Act 1958 and has turned Crown witness, that, in the course of the joint assault by Maybus and Walker, Maybus punched Strike to the head and struck him with great force to the body and head with a metal bar.
After the assault, Strike was removed from the clubhouse in a van taken from a neighbouring business, Doherty’s Gym. Maybus drove the van and dumped Strike, dead or dying, near a cemetery in Keilor East. Strike was discovered dead the next day by a passer-by. After Maybus dumped Strike in Keilor East, he returned to the clubhouse where a clean-up was underway. Maybus contacted a friend, Matthew Grech, and got him to bring a trailer to the clubhouse. Some blood stained lounge chairs and other potentially incriminating items were taken away by Grech and disposed of.
On the night of 25 May 2014, Maybus, accompanied by Grech and some others, took the van belonging to Doherty’s Gym to Footscray where he set it on fire. In the course of Maybus’ conversations with Grech after the assault, Grech says Maybus told him briefly what had happened when Strike turned up at the Bandido’s clubhouse in Brunswick. In particular, Grech says Maybus said “We took him inside and gave him a hiding.”
The law
Pursuant to s 42E(1) of the Act, the Court has the power to ‘direct that a person may appear before, or give evidence … to, the court by audio visual link …’.
Section 42E(2) provides that such a direction can only be made if certain technical requirements are met – there is no issue in that regard here. The Act does not otherwise provide guidance on the circumstances in which a witness can testify from a remote location. The parties agree, rightly, that in R v Cox & Ors (Ruling No 6),[2] Kaye J summarised the relevant principles that bear upon an application such as this:
[2](2005) 165 A Crim R.
(1)The question for the court is whether it is in the interests of justice that an order be made under s 42E.
(2)In considering that question, the right of the accused to a fair trial is paramount.
(3)It does not follow that, because the accused may sustain some forensic disadvantage by reason of an order under s 42E, such an order should not be made. As Brooking J observed in a different context in Jarvie v Magistrates’ Court of Victoria, a “... fair trial does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused.”
(4)The right of an accused to confront, in person, those who testify against him or her is a fundamental right in our criminal justice system.
(5)However, as Redlich J observed in Goldman, that right, while fundamental, is not an absolute right at common law. Section 42E is a further qualification of that right in appropriate circumstances.
(6)The question whether it is in the interests of justice to make an order under s 42E must be determined by balancing, on the one hand, the interests of the accused, and, on the other hand, the public interest in the ability of witnesses to give evidence in significant criminal trials without thereby occasioning danger to themselves or to other members of the community.
(7)Nonetheless a court should not make an order under s 42E where to do so would unduly prejudice the right of an accused person to a fair trial. For, as I have observed, that right must be paramount.[3]
[3]Ibid [7]. Footnotes omitted.
The prosecution bears the burden of satisfying the court that the direction should be made.[4]
Course of Proceedings
[4]Director of Public Prosecutions v Finn (Ruling No 1) [2008] VSC 303.
In support of its application respecting Matthew Grech, the Prosecution called the Informant, Detective Leading Senior Constable Justin Tippett of the Homicide Squad. Without objection, his nine page written statement dated 19 February 2016 was tendered. He swore that it was true and correct. He gave evidence that the Homicide Squad has assessed the risk to Grech’s personal safety as “High” if he is required to give evidence in person. He said that risk would not be eliminated by having Grech give evidence in a closed court. Bringing him to and from the court places him at risk.
Mr Tippett relied upon the statement of Detective Acting Inspector Wayne Cheesman, which appears in the depositions[5] and concerns outlaw motorcycle gangs (OMCGs) generally and the Bandidos in particular. No objection was made to reliance being placed on Mr Cheesman’s statement and no challenge was made to the contents of that statement.
[5]Depositions p886.
Mr Cheesman says “I have held the substantive position of Detective Senior Sergeant at the Echo Taskforce since its inception. It is my role to lead and manage all aspects of OMCG related activities undertaken by the investigators attached to the Taskforce. I also advise Victoria Police on all aspects of OMCG policing”.[6] Mr Cheesman goes on to detail his extensive study of and experience with OMCGs. Mr Tippett specifically relied on paragraph 134 of Mr Cheesman’s statement[7] which, relevantly, states:
[6]Ibid.
[7]Ibid p913.
As a result of my investigation of OMCG activity in Victoria, I have observed a number of common characteristics as between the various OMCG’s active in this State, including the Bandidos OMCG. Those characteristics include:
(a)Members adherence to a strict code of loyalty to the OMCG and silence and no-cooperation with law enforcement agencies;
(b)A high degree of control of each OMCG chapter and its criminal activity by its leaders; President, Vice President and sergeant-at-Arms. This is in conjunction with over–arching control by the national leadership group and in particular the relevant National President and National Sergeant –at-Arms;
(c) A disregard for law enforcement authority;
(d)The practice of witness, prosecutor and law enforcement officer intimidation;
(e) ……………………..
(f)At the direction of the club and its leaders, a requirement for the membership of an OMCG to commit and be involved in serious criminal activity. This often involves …assaults and firearms offences.
(g) ……………………….
(h)The use of sophisticated electronic equipment to avoid detection of criminal activity including secure telephones, scanners and the like;
(i)The extensive use of sophisticated security measures at clubhouses and member’s residences which is often accompanied by firearms possession and retention;
(j)The use of counter-surveillance and counter-intelligence measures against law enforcement agencies……..
Mr Tippett also gave evidence that in late April 2015, members of the Maybus family confronted members of the Grech family at their home about, inter alia, the fact that Grech had made a police statement. On 30 April 2015, Grech’s brother received a text message from a girlfriend of the accused which said relevantly, “Your brother is a fucking rat dog. You’re all fucked. Witness protection LOL. Your whole family should go into protection.” Police attended the senders home and left a business card at the front door. Later that day she sent Grech’s brother a photo of the business card saying “Tell Matty 2 can play you dog.”
Mr Tippett also referred to intercepts of calls made by the accused and the accused’s father in late 2014 through to early 2015. In the former, Mr Tippet said the accused told a male about a third party who is a dog, an informer and someone who lags to the jacks. He talked of previously bashing this person when he was a prospect. In the latter, the accused’s father talked about the accused being arrested and charged and about a new Bandido’s president, Nick. He said “I’m gonna tell him how it is and best you go back to your seniors and tell em this is how it is or its gonna turn to shit for the lot of it. The first thing you would be saying is anyone who’s made a statement is fucked and they better learn to rules quick smart.”
In addition to the Informant’s evidence, on 19 February 2016 the prosecutor tendered what he announced was a confidential affidavit. No objection was taken to that tender, which was made before the lunch break. After lunch, Mr Petrovich, lead counsel for the accused, sought access to the affidavit. In other words, he sought that I not treat it as confidential and at least allow the accused’s legal representatives to read it so they could properly respond to it. I adjourned the matter to the 23 February 2016 so that the Chief Commissioner of Police could be represented. On that day Mr Holdenson QC, leading Mr Solomon – Bridge, appeared for the Chief Commissioner. He sought to withdraw the confidential affidavit tendered on 19 February 2016 and asked me to disregard it. He then sought to tender a new confidential affidavit. There was no objection by the defence to this course. I therefore agreed to the withdrawal of the first confidential affidavit, the contents of which I disregard, and received the second confidential affidavit. Mr Petrovich did not seek to see the substituted confidential affidavit, which I read. After reading it, I directed that it be placed in a sealed envelope, marked “Not to be opened except by order of a Justice of this court” and that it be kept in the court safe. Suffice to say that the confidential affidavit confirms what Mr Tippet told me on 19 February 2016 - that police dealing with Mr Grech assess the risk to his personal safely as “high” if he is required to give evidence at court in person and that that risk is not eliminated by the security measures at court.
Defence Submissions
On 19 February 2016, the defence submitted that the paramount concern is that the accused receive a fair trial. The defence queried why the concerns regarding Grech’s safety, if genuine, were not raised at the committal but then conceded that the defence, at committal, had not opposed the application for Grech to give evidence there via video link. The defence submitted that at the committal the events in question were still relatively fresh. It was suggested that the passage of time would have ameliorated the risk to Grech. The fact that the proceedings are being conducted in a secure court make it extremely unlikely that anyone could get into the court room with a weapon. If there was any continuing concern in that regard, the defence submitted that an order could be made closing the court when Grech comes to give evidence. Further, it was submitted that the police could take a myriad of routes when bringing Grech to and from the court to overcome any risk in that regard.
Analysis
Having regard to the evidence relied on by the prosecution, I accept that the risk to Grech’s personal safety is high if he is required to come to court to give evidence. I am satisfied that the risk would not be eliminated by the security measures already in place at court or by closing the court if Grech were required to attend in person. There is no dispute that the accused was at the time of the alleged offence a fully patched member of the Bandidos. There is nothing in the materials to indicate that he has severed his relationship with the Bandidos. The evidence provided to me indicates that the Bandidos are an international outlaw motorcycle gang with considerable resources at their disposal. Getting Grech to and from court safely would be fraught. It would, in my view, constitute an unacceptable risk to Grech’s safety and to civilians who might be in the vicinity.
Whilst Grech’s evidence is not of the same importance as that to be given by Girgis, I accept that Grech’s evidence is important, and that makes him a likely target for members or associates of the Bandidos. Grech is expected to give evidence that Maybus told him “We took [Strike] inside and gave him a hiding”. If Grech’s evidence is accepted, it lends significant support for the prosecution’s case that Maybus was party to a joint criminal enterprise. Mr Petrovich, said in his response to the Prosecution Opening that Maybus denied that he was a party to an “agreement to kill or inflict serious injury” or that he assaulted Strike with the metal bar.
I recognise that the importance of Grech’s evidence cuts both ways. It is consideration that, on the one hand, elevates the risk of him giving evidence in person but, on the other, militates in favour of the accused having the right to confront him in court in person. But, in my view, the high level of risk here is the weightier consideration.
As the legislation and authorities on the subject indicate, the right of an accused to confront witnesses in court is not absolute. In my view, the use of a video link will not prevent the defence from mounting an effective attack on Grech’s credit. The jury will be able to see Grech on the large video screen that is available in this modern courtroom, and in my view, they will still be able to properly assess Grech’s credibility and reliability. I accept that the fairness of the trial is the paramount consideration but I do not consider that the fairness of the trial will be compromised by Grech giving evidence via video link. In my view, it is the interests of justice to grant the prosecution application that Grech give evidence by video link. And I so direct. I also direct that the other witnesses nominated by the prosecution – Nicole Grech, Adam Vickers, Tym Livett and Paul Sherrin – may also give evidence by video link.
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