R v Memery
[2001] VSC 243
•26 July 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1467 of 2000
| THE QUEEN | Plaintiff |
| v | |
| NORMAN ALEXANDER MEMERY | Defendant |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2001 | |
DATE OF REASONS: | 26 July 2001 | |
DATE OF RULING: | 23 May 2001 | |
CASE MAY BE CITED AS: | R v Norman Alexander Memery | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 243 | |
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Criminal Law – Ruling – Unfairness – Weighing probative value and prejudicial effect – Past acts of vehicle damage – Intervention order – Injuries in two traumatic events.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr. G. Hicks Q.C. Mr. J. Baum | Office of Public Prosecutions |
| For the Accused | Mr. W. Toohey | Mr. C. Pearson |
HIS HONOUR:
The accused Norman Memery is charged with the murder of Trevor Tamme on 13 May 2000 at Healesville. The trial came on for hearing before me on 23 May 2001. Before the jury was empanelled, I was asked to rule as inadmissible some evidence which the prosecution proposed to lead. I ruled that some evidence was inadmissible, but that other evidence sought to be excluded on the application of Mr Toohey for the accused, was admissible. I said that I would provide reasons later. These are the reasons.
Mt Toohey’s application was addressed to five aspects of the evidence. He sought to have excluded evidence as to certain previous vehicle-damaging incidents, as to an intervention order made against the accused, as to the videotaping of certain events shortly prior to the act apparently causing the death of the deceased, as to a car accident involving the accused shortly after the causative act and as to parts of the record of interview of the accused by the police on 13 May 2000. Almost all of the latter were linked to the first four aspects. It is necessary to put these matters in context, and I do so with reference to the material in the statements taken by the police, taken with the transcript of what was said at the committal hearing in November 2000.
The accused was in a relationship with a Ruth Hartney for 5½ years until January 2000. In January 1998, she cooled of the relationship to some extent and moved to live at 4 Westmount Rd Healesville. On 21 January 2000, Ruth Hartney broke off the relationship altogether. She then commenced a relationship with the deceased. On that date, the accused on two occasions, declined to comply with requests made to him by Ruth Hartney to leave, first 4 Westmount Road, and then the home of Trevor Tamme. The police were called to both addresses. The accused left 4 Westmount Rd after he was asked by the police to do so. He left Trevor Tamme’s home before the police arrived.
In early 2000, Ruth Hartney owned a white van, and the deceased owned both a van and a utility. On 26 February 2000, damage was done to the van of the deceased outside 4 Westmount Rd. The police were notified and a policeman inspected the damage. On 1 March 2000, Ruth Hartney went to court and obtained an interim restraining order against the accused. The order directed him not to do several things, including making contact with Ruth Hartney and going within 200 metres of 4 Westmount Road. On 3 March 2000, a copy of the interim intervention order, of a summons returnable on 14 March and allied documents were served on the accused by a policeman. The documents were explained to the accused and he appeared to understand them. On 14 March 2000, an intervention order was made substantially in the terms of the earlier interim order. The accused was then in court, and he was served with a copy of the order at court. On 2 April 2000, damage was done to the van of Ruth Hartney outside 4 Westmount Road. The police were notified and a policeman inspected the damage. On 9 April 2000, damage was done to the van of Ruth Hartney outside 4 Westmount Road. The police were again notified. The policeman who inspected the damage, suggested to Ruth Hartney the use of a security camera. At about this time, Trevor Tamme drove with his son to the home of the accused, said to the accused that he was tired of damage being done to his vehicle, and asked the accused to leave him and Ruth Hartney alone. On 26 April 2000, damage was done to the van of Ruth Hartney outside 4 Westmount Road. The police were again notified. A policeman inspected the damage, and suggested that Ruth Hartney might consider installing a security camera. Shortly after that, a security camera was installed at the front of 4 Westmount Road.
The security camera was in operation in the early morning of 13 May 2000. I have viewed and listened to a playing back of the copy of the taped record made at that time. What is on display in the left foreground is a white van. In the right foreground there is a utility. In the middle foreground is the space between the two vehicles. In the background is part of the drive out to Westmount Road. A light comes on. A man is seen. There is no dispute that that man is the accused. It later becomes apparent that there are two sets of lights that are sensor-operated. They come on and off at times. The lights operate for very short cycles. The set on the west operates for about 10 seconds, and the set on the east for about 5 seconds. The accused is seen to move around for a time. He appears to use a knife to cut into four tyres, two on the offside of the utility, and two on the nearside of the van. The sound of air hissing is clearly heard after each cutting motion. The accused appears to leave. The lights of a car are seen to move west along Westmount Road. For a couple of minutes before and after the car is viewable, the sensor lights do not come on. The accused is again seen moving around. At times he waves an arm as if to keep the lights on. He spends time at the offside of the utility. He appears to bring a hose to the offside of the utility and the nearside of the van. He appears to have something in his hand as he breaks external mirrors on both vehicles. There is then heard a different noise. The accused is seen to leave the property by the drive and run to the east. A second man, inferentially the deceased, apparently without a shirt on, is seen to come from the left foreground and run after the accused. Some noise can be heard in the background over the next few minutes. The deceased is then seen to appear from the right background holding his chest. He moves to the left foreground. Various background noises can then be heard. Then a car can be seen to pull up outside the property. A man enters the property and moves towards the front eastern side of the house.
For the purpose of these reasons, I need spend minimal time dealing with the circumstances of the events immediately surrounding the act of stabbing which led to the death of the deceased. It will suffice to say that there is evidence which serves to support the claim of the accused that, before the act, he and the deceased were engaged in a physical struggle in which both sustained injuries. After they parted, the accused walked to his car and drove out of Healesville, heading for his home in Woori Yallock. After travelling a few kilometres along the road, the car driven by the accused left the road and finished up in a ditch (“ the car accident”). He called his brother-in-law for assistance. His brother-in-law and sister and later a tow truck driver went to the scene of the accident. The accused was taken to his sister’s home. There, he had a shower and slept. He was then driven to hospital. There, he was seen and spoken to by members of the police force, and by a doctor. Later he was formally interviewed by members of the police force. In the few hours after the car accident, the accused spoke to a number of people as to the events at Healesville or the car accident or both. They included his brother-in-law, his sister, the tow truck driver, members of the police force and two doctors. There are discrepancies in what he said at different times that I was not able to reconcile. The exercise at attempting to reconcile differences in matters relating to the car accident was made more difficult after taking into account aspects of “physical findings” based on evidence from the doctors and from the photos, including of the scene of the car accident, of the car and of the accused. For example, the photos of the car suggest that there was not substantial damage to it, although it was quickly agreed that it should be written off. Yet, from the photos of the ditch from which the car was recovered, the ditch is steep. So steep that an objective observer would find it difficult to consider that the occupant of a car finishing up in it would be not injured to some extent.
When the accused was interviewed by the police, he gave a detailed account of events.
What he said included:
•that he had been in a relationship with Ruth Hartney until January 2000,
•that she had later obtained a restraining order against him,
•that he had not been near her home since the order had been obtained,
•that he knew Trevor Tamme, but knew nothing of any damage done after January to any vehicle of Tamme,
•that he could not remember going to Healesville early that morning – or doing any damage there, save that he could recall seeing a mirror break,
•that he could remember running away, then letting Tamme catch up,
•that a struggle ensued in which he sustained injuries at the hands of Tamme,
•that the struggle progressed to the point where he thought he was going to be killed by Tamme,
•that he then pulled out the knife and pushed backwards,
•that in doing so he was acting in self defence,
•that in doing so he intended only to get Tamme in the leg or arm,
•that in driving home, he lost control of his car and crashed it, and
•that all of his injuries were from the struggle, and none were from the car accident.
It should be apparent from that summary, taken with the earlier history provided, that at the trial, there were likely to be issues as to whether the accused had the requisite intention for murder, whether he had acted in self defence, and whether aspects of his account to the police were credible.
As to the evidence of the incidents involving damage to vehicles of the deceased and Ruth, Mr Toohey submitted that, if the evidence had probative value, it was outweighed by a substantial potential for prejudice, that there was no evidence that the accused had been responsible for any damage, and that there was additional unfairness in that the accused had not been asked by the police as to specific incidents of damage (as distinct from damage in a broad sense), and that circumstance might unfairly impact on whether the accused should or should not give evidence. I am satisfied that the evidence as to previous incidents has probative value, going to the state of mind of the accused at the crucial time, to his motive for acting as he did, and to the credibility of his account of events. I do not accept that the material which would come from the evidence of Ruth Hartney taken with the evidence of the various police officers consulted by her would provide no basis for the drawing of reasonable inference, but represent only a springboard for inappropriate speculation. I consider that the evidence as to what happened on those several earlier occasions, when taken with what evidence as to what happened on 13 May, provides a more than adequate basis for drawing as a reasonable inference that it was the accused who damaged the vehicles on the earlier occasions. It goes without saying that whether the jury is prepared to so infer is a matter for the jury. I accept that there is a potential for prejudice. A direction by me to the jury will address the potential for using the evidence inappropriately. In weighing the potential for prejudice I have taken account of, but have not treated as being of the significance claimed by Mr Toohey, that the denial in the record of interview was broad rather than specific.
As to the evidence concerning the intervention order, Mr Toohey argued that it would be conceded that the accused was at 4 Westmount Road, and that he had no right to be there, and that it would add unnecessary prejudice to have evidence led as to the details of the intervention order. I accept that the terms of the actual order are expressed in terms such that there might be a risk of misunderstanding. Accordingly, the hard copy should not go in as an exhibit. But I am satisfied that the probative value of having the applicable exclusions before the jury outweigh any potential for prejudice.
As to the leading of evidence through the playing of the videotape of the actions of the accused in damaging the vehicles outside 4 Westmount Road, Mr Toohey conceded that what could be seen and heard on the playing of the tape had some probative value, but submitted that the prejudicial effect was so great that it should not be played in full. I am satisfied that what can be seen and heard on the playing of the tape had substantial probative value, particularly as to the state of mind of the accused shortly before the events resulting in death. There is a substantial potential for prejudice, but not such as to outweigh the probative value. Again I contemplate that I would warn the jury as to how the evidence can and cannot be used.
As to evidence concerning the car accident, Mr Toohey put to me that to go beyond accepting the accused’s claim to the police in the interview that he suffered no injuries in the car accident would be only speculation. Mr Hicks, prosecuting, argued that there was probative value in the evidence as to the car accident, bearing on the issue of what injuries were suffered on the night by the accused severally in the two traumatic events in which he had been involved, an intermediate issue which bore on the bigger issue of self defence. In the light of my review of all the evidence of what the accused said to various people and the physical evidence, I am unable to accept what was put to me by Mr Toohey. I am satisfied that the state of evidence is such that inferences inconsistent with what the accused has claimed could be drawn.
Accordingly I ruled that, save as to the introduction of the copy of the intervention order, and as to one question and answer in the record of interview, which I addressed orally at the time, the evidence which the prosecution proposed to lead should not be excluded by me in the exercise of any judicial discretion.
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