R v Meade (Ruling No 2)
[2013] VSC 255
•17 May 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0092
| THE QUEEN |
| v |
| ROBERT ARTHUR MEADE |
---
JUDGE: | WEINBERG JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 April, 2, 6, 7 and 9 May 2013 | |
DATE OF RULING: | 17 May 2013 | |
CASE MAY BE CITED AS: | R v Meade (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 255 | |
---
CRIMINAL LAW — Trial — Murder — Relationship evidence — Application to exclude certain evidence of a co-worker of the accused — Accused said to have made statements, about two weeks before date of attack upon deceased, falsely implicating deceased in crimes against his children — Commentary by witness as to accused’s state of mind not to be led in-chief — Evidence probative of animus on part of accused towards deceased — Prejudicial effect outweighed by probative value — No reason to present evidence to jury in anodyne form — Evidence Act 2008 s 137.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R A Elston SC with Mr N A Hutton | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr P J Morrissey SC with Mr D Cronin | Turnbull Lawyers |
HIS HONOUR:
Mr Morrissey SC, on behalf of the accused, Mr Robert Meade, has submitted that I should exercise the power conferred upon me by s 137 of the Evidence Act 2008 (‘Evidence Act’) to exclude certain portions of the evidence that the Crown proposes to lead from Mr Charles Nesbitt, a work colleague of Mr Meade.
Mr Nesbitt first met the accused in February or March 2011 when he interviewed with Uranium Equities Ltd, the company by which the accused was then employed as General Manager of Geology. Of course, that was several months before the attack upon the accused’s former wife, Ms Brooks, on 1 July 2011. Mr Nesbitt was subsequently employed as a Senior Exploration Geologist. The accused was the head of the department for which he worked.
Subject to some minor qualifications, Mr Morrissey does not object to Mr Nesbitt giving evidence of the words attributed to the accused during the course of their various conversations, or the accused’s appearance during the course of those conversations. He accepts that Mr Nesbitt’s musings as to what the accused may have been up to during the course of those discussions might become relevant and admissible depending upon what course he adopts in cross-examination. He submits, however, that much of this material is not admissible as evidence in chief.
Mr Nesbitt’s statement to police was taken on 9 September 2011. It appears at pages 417-426 of the depositions. In addition, Mr Nesbitt appeared at the committal and was cross-examined extensively. The transcript of his evidence appears at pages 197-226 of the depositions.
It is clear that Mr Nesbitt did not take notes of, or record, the discussions that he had with the accused. He did, however, on occasion, take a note of particular conversations shortly thereafter.
It is probably best to proceed paragraph by paragraph through Mr Nesbitt’s statement identifying, with precision, those parts of his evidence to which objection was taken.
The 14 June 2011 conversation
Mr Nesbitt says that on 14 June 2011, he received an email from the accused asking him to come and see him. He recounts a discussion in the accused’s office which turned out not to be work-related. The accused spoke to him about his ex-wife and children. He told Mr Nesbitt that his ex-wife was going to move back to the United Kingdom, and that she was going to take the children with her.
The conversation then took a strange turn. The accused told Mr Nesbitt that his former wife was involved in hard drugs. He did not specify any period during which she had been so involved, but Mr Nesbitt inferred that it might have been ‘a couple of years ago’, around the time that they had split up. I note in this regard that the accused and his former wife had divorced in February 2009.
Mr Morrissey seeks to have that particular piece of evidence excluded despite the fact that these were, according to Mr Nesbitt, the accused’s own words.
Moreover, the accused on that same occasion told Mr Nesbitt that his young daughter, Elizabeth, had been raped earlier that year, and that the accused had been suspected of having committed that offence. He said that he had been obliged to submit samples to prove his innocence. He claimed that his daughter told him that she had been raped at home, with his ex-wife present. He said that he suspected that it was his former wife’s boyfriend who, when questioned about the matter, had denied the allegation. However, he had since been ‘kicked out’ of the house and moved to Queensland. He claimed that his former wife had refused to allow their daughter to be a witness against the boyfriend.
In a related vein, the accused was said to have told Mr Nesbitt that his son had been beaten during the latter part of the previous year, having been tied to a chair and flogged. Mr Nesbitt said that he had gained the impression that the son had died from his injuries. The accused told him that the matter had received a great deal of publicity, but Mr Nesbitt could find nothing on the internet concerning this alleged event.
It was at that point, according to Mr Nesbitt, that the accused asked him if he ‘knew anyone who could help him’. He said that he was unsure of the nature of the request, given that it was vaguely expressed, but added that it was ‘possible’ that the accused was asking for help ‘in a sinister way’. He did not press the accused for any explanation.
Mr Nesbitt simply replied that he knew a lawyer from his high school days, and also had a school friend who was a South Australian police officer, both of whom could be trusted to give sound advice (of a non-sinister nature).
Mr Nesbitt then provided the accused with a link to a story on the ABC website which dealt with custody battles where one parent with dual citizenship had fled overseas with the children. He also provided a link to a website concerning separated fathers.
According to Mr Nesbitt, he cautioned the accused that if he was ‘looking at that type of thing as an option’ (meaning something unlawful), he should reconsider because he would end up in gaol. He cautioned him against using a ‘junkie’ or a ‘bikie’ as neither of these categories of person could be trusted. He advised the accused to act within the law. He acknowledged that, at no stage, had the accused said anything in terms to indicate that he was contemplating some unlawful act.
Mr Nesbitt identified Michael Trim as the lawyer of whom he had been speaking, and William Gibson as the South Australian police officer. He did not provide their contact details to the accused, and was never asked by him to do so.
It seems that during the same conversation, the accused told Mr Nesbitt that he had a distrust of the legal fraternity. He said that he had hired a private investigator to follow his wife. That investigator had reported having seen ‘a judge’ leaving her house. The investigator had followed the judge in his car until he had been intercepted by two men wearing suits and driving a grey Commodore. They questioned the investigator as to why he had been following the judge. The accused told Mr Nesbitt that he had paid the investigator something of the order of $3,000 to carry out the task assigned to him.
Mr Morrissey acknowledged that he might be asking for too much in seeking to have the entirety of this material excluded. He accepted that the Crown would have a legitimate interest in having some limited aspects of this discussion placed before the jury because it provided necessary context for what was to come next. Even so, he submitted that the details of the various statements attributed to the accused were ‘inflammatory’ and likely to ‘trigger collateral controversies’.[1]
[1]T186.
In essence, Mr Morrissey submitted that Mr Nesbitt should be confined to indicating, in general terms, that the accused was asking him for help, in the context of his former wife’s plan to return to England and to take the children with her. He accepted that the Crown could invite the jury to find that this was sinister, but submitted that this could be done without the elaborate detail of the outrageous, and false, statements attributed to his client.
The next part of this particular conversation that Mr Nesbitt would recount was not the subject of any challenge. The accused told Mr Nesbitt that he was very concerned about his wife taking the children overseas, but accepted there was nothing that he could do about it. He said that he felt helpless, but had already agreed that they could go. As he spoke, he appeared to become more upset and had to control his breathing to stop himself from crying. He also had tears in his eyes. According to Mr Nesbitt, the accused told him that his children had indicated they wanted to stay with him, and not go with their mother.
Mr Nesbitt then suggested to the accused that he could obtain an injunction, preventing his former wife from taking the children to the United Kingdom, given her drug problem, the rape of his daughter, and the bashing of his son. According to Mr Nesbitt, the accused appeared receptive to this idea.
Obviously, this particular part of Mr Nesbitt’s evidence could not be led, in any sensible way, without making reference to the earlier allegations concerning drugs, rape and bashing. Mr Morrissey accepted that this was so, but submitted that despite the artificiality associated with doing so, this part of Mr Nesbitt’s evidence should be excluded.
In any event, it is unnecessary to deal with this specific submission. Mr Elston SC stated, in oral argument, that he would not seek to lead any evidence concerning the discussion about the possibility of obtaining an injunction.[2]
[2]T220.
Mr Nesbitt went on to claim that the accused had next told him a story about a time when he was at a service station. Two men had approached him asking him if his name was Rob Meade. According to the accused, he said words to the effect of ‘what’s it to you?’ The accused went on to say that he ‘dropped them both’. The Crown indicated that it would not seek to lead evidence of this part of the conversation. Accordingly, it is unnecessary to say anything further about it.[3]
[3]T221.
Mr Morrissey did not object to the next part of Mr Nesbitt’s evidence. He says that he offered the accused a loan of the sum of around $500-$1000 if he was concerned about court costs. According to Mr Nesbitt, the accused told him that he had $20,000 or $30,000 available, and declined his offer.
It was at the end of this conversation that the accused said something to Mr Nesbitt that stuck in his mind. He commented that maybe ‘a couple of .22s and a baseball bat could solve the situation’. Mr Nesbitt described the accused as having made that comment in a ‘half-joking manner’, ‘kind of laughing at the same time’. He says that he took this to be a throwaway comment, but, having regard to the context of what had been said earlier, he was concerned.
In seeking to exclude certain parts of Mr Nesbitt’s account of this discussion on 14 June 2011, Mr Morrissey submitted that the Crown’s position was somewhat inconsistent. On the one hand, it appeared to be saying that the accused had told Mr Nesbitt these things about his former wife in order to get him on side, and to gain his help. The Crown would no doubt suggest that the jury should view the accused’s conduct in this regard as sinister.
On that basis, the Crown would have it that the accused was acting in a calculating manner. This discussion, which took place only a little more two weeks prior to the attack upon the deceased, was part of a coldly premeditated plan on the part of the accused to murder her.
On the other hand, Mr Morrissey submitted, if the Crown were relying upon the accused having made these appalling allegations against his former wife in order to show the extraordinary degree of hatred that he bore towards her, that would be difficult to reconcile with its ‘instrumental’ theory of what the accused was up to.
In Mr Morrissey’s submission, the accused was either seeking to ‘lure’ Mr Nesbitt into helping him by telling outrageous lies about his former wife, or he believed the truth of some at least of what he was saying. That level of hatred would provide a powerful motive for her murder. However, the two theses could not stand together.
Mr Morrissey accepted that Mr Nesbitt’s evidence satisfied the threshold test of relevance under the Evidence Act. He could hardly do otherwise. The authorities on this subject are plain, and this evidence was both proximate in time, and cogent as to the malice that the accused bore towards the deceased.[4] Indeed, the Crown case is that on 9-10 June 2011, only a few days before this conversation with Mr Nesbitt, the
accused had performed a ‘dry run’ to Melbourne in order to plan the commission of this offence.
[4]See, eg, the discussion of the authorities in R v Gojanovic (No 2) [2007] VSCA 153, [89]-[91] (Ashley and Kellam JJA, Kaye AJA).
I reject Mr Morrissey’s contention that the Crown must choose between treating the accused’s allegations against his former wife as ‘instrumental’, and treating them as showing hatred towards her. The fact that he made these allegations can support both theses. The statements are not, as Mr Morrissey submitted, ‘weakly probative of animus’.[5] Rather, they show, or are at least capable of showing, that the accused truly detested his former wife. The fact that there is no evidence to support the truth of these allegations, and that no one contends that they had any substance, does not alter that fact.
[5]T190.
Having already indicated that I do not accept Mr Morrissey’s submission that the statements attributed to the accused lack significant probative value, it is nonetheless necessary to consider whether such probative value as they possess is outweighed by the danger of unfair prejudice to the accused.[6]
[6]Evidence Act 2008 s 137.
The difficulty here is that any such prejudice flows from the very malice that they reveal that the accused bore towards his former wife. It is difficult to imagine any more serious allegations being made against the mother of his children than that she was involved in hard drugs, and had condoned the rape of her daughter by her boyfriend, that offence having taken place in her presence.
The fact that the accused said these things to Mr Nesbitt does, in my opinion, shed light upon the precise nature of his relationship with the deceased at that time. The jury will be made well aware of the fact that the Crown does not suggest that what the accused told Mr Nesbitt was true. Indeed, if there were to be any issue about that, the Crown is in a position to demonstrate conclusively that some of his allegations were patently false. For example, there is evidence available to prove that, contrary to what the accused told Mr Nesbitt, he was never investigated in relation to the rape of his daughter. He never, at any stage, had to produce a sample of any kind in order to exculpate himself.
I have no doubt the defence would prefer not to have any of this evidence led. However, that has nothing to do with whether it should be excluded pursuant to s 137 of the Evidence Act. Any prejudice that might flow to the accused from having this material placed before the jury will be significantly reduced by the giving of careful directions as to its legitimate use. The jury will be told in the clearest of terms that they are not to reason that, merely because the accused made these appalling allegations, and thereby behaved despicably, he must therefore, and for that reason alone, be likely to have attacked her some two weeks or so later. The jury will be told how the Nesbitt evidence can be used, and, more importantly, how it must not be used.
I do not accept Mr Morrissey’s submission that Mr Nesbitt’s evidence will open up numerous collateral issues. No one, so far as I can tell, is going to suggest that the accused’s allegations were true. His motive for saying what he did will no doubt be the subject of serious contention. However, that does not mean that the jury will be diverted into irrelevancies.
I accept that the details of the accused’s allegations, as recounted to Mr Nesbitt, may momentarily distract the jury. However, in my view that effect will be limited. They will soon focus upon the real significance of what he was saying, which is central to his state of mind towards his wife at the relevant time. I note also Mr Morrissey’s statement, in oral argument, that, as matters stand, this is ‘not a case where the credibility of Mr Nesbitt would be put in issue’.[7]
[7]T211.
Mr Morrissey’s submission that Mr Nesbitt should be confined to saying nothing more than that the accused made some disparaging remarks about the deceased is, in my opinion, wholly unrealistic. An anodyne presentation of that kind would present an entirely false picture to the jury. Indeed, as Mr Morrissey frankly conceded, if his submission were to be accepted, this would involve ‘an element of artificiality’.[8]
[8]T203.
The accused’s comments about the deceased were not merely disparaging in a general sense. They displayed a venomous degree of hatred towards her. While ‘filleting’ the evidence in the way for which Mr Morrissey contended might marginally reduce some degree of potential prejudice, it would do so at the expense of the very considerable probative value that this evidence might bear.
In short, the Crown’s position regarding this first conversation was as follows. Mr Elston submitted that there were several distinct bases upon which Mr Nesbitt’s evidence should be admitted. The first was that it went to motive. The second was that the accused was attempting to get Mr Nesbitt on side, with a view to procuring his assistance in some way. The third was that the accused had made the remarks in anticipation of possibly being blamed, down the track, for his wife’s murder. In those circumstances, he might have regarded it as useful to have Mr Nesbitt available to say that he had heard of her involvement with serious drugs. That might provide an alternative hypothesis for her murder.[9]
[9]I must say, as I did during the course of argument, that I regard this third basis of admissibility as tenuous at best. In response to my questioning, the Crown ultimately stated that it was not suggesting that the accused was trying to set up Mr Nesbitt as a possible defence witness.
Mr Elston readily conceded that Mr Nesbitt’s internal thought processes, during the course of this conversation, were inadmissible, and would not be led in-chief. All that he would seek to lead in that regard was Mr Nesbitt’s observation that, save for the comment about the .22 rifle and the baseball bat, the accused did not appear to be speaking in a light-hearted manner.[10]
[10]T213.
The ‘brain dump’ and the request for its deletion
Mr Nesbitt, in his statement, recounted that he had sent an email to the accused, after the 14 June 2011 conversation, which he described as a ‘brain dump’. It suggested all sorts of legitimate actions that the accused could take regarding his former wife’s proposed departure from Australia with the children. It contained a warning against taking any illegal step.
It is not disputed that the accused received this ‘brain dump’. Mr Morrissey did not object to the admissibility of this email, though he flagged the possibility that there might be some ‘small editing’ done to it depending upon the terms of my ruling in relation to the 14 June 2011 conversation.
The email itself refers to drug dealers and to ‘zero tolerance for any signs of abuse’[11] in relation to the accused’s children. These are plainly references to what had been said during the earlier conversation. Presumably, Mr Morrissey had in mind a ‘cut and paste’ in relation to this material as well.
[11]At page 1616 of the depositions.
The ‘brain dump’ is said by the Crown to be particularly significant because, at a later stage, but probably on or about 30 June 2011 (or perhaps 1 or 2 July 2011), the accused telephoned Mr Nesbitt and left a voicemail message. In that phone call, he asked Mr Nesbitt to delete the ‘brain dump’ email. Mr Nesbitt did so. It appears that he only came to appreciate its potential significance, and that of the accused’s request to delete it, after the deceased had been attacked.
Mr Morrissey could not object to the admissibility of the evidence concerning the accused’s request to delete the email. Clearly, the Crown is entitled to rely upon this as indicating some form of consciousness of guilt, even if, on one hypothesis, the request may have been made a day or so before the deceased was attacked.
Other conversations
Mr Nesbitt’s statement also recounts a number of other conversations, at various times, in which the accused told him of having been involved in physical fights, and having protected a bus driver from being assaulted by a couple of ‘Ethiopians’. The accused also told Mr Nesbitt that he once took on the top boxer in a particular boxing troupe, and that he had, on one occasion, been in a fight while working in Russia. It is unnecessary to say anything further about these matters because Mr Elston made it clear, in oral argument, that he would not seek to lead evidence relating to them.
Mr Nesbitt also recounted ‘general office banter’ with the accused, during which the accused told him that he was undergoing a tax audit with respect to his business affairs, and that as a result he had had to travel to Victoria on several occasions. Mr Morrissey did not seek to have that part of Mr Nesbitt’s evidence excluded.[12]
[12]T208.
Conclusion
Having considered this matter, I am firmly of the view that Mr Nesbitt’s evidence should not be pruned in the manner for which Mr Morrissey contends. Mr Elston has, very properly, agreed to excise from Mr Nesbitt’s statement a number of paragraphs that are objectionable. He has made it clear that he will not seek to lead evidence of Mr Nesbitt’s thought processes, or his musings about the significance of what the accused said to him. Mr Nesbitt will be carefully warned of the need to confine himself to what he saw and heard.
In my opinion, the probative value of what remains of Mr Nesbitt’s evidence considerably outweighs any prejudicial effect that might flow from its admission.
For these reasons, as well as for the reasons articulated during extensive discussion with counsel,[13] I reject the application to exclude those parts of Mr Nesbitt’s evidence to which objection has been taken.
[13]T184-224.
---
0