R v Memery

[2001] VSC 200

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1467 of 2000

THE QUEEN

v

NORMAN ALEXANDER MEMERY

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JUDGE:	TEAGUE  J
WHERE HELD:	Melbourne
DATE OF HEARING:	24-31 May, 1-13 June 2001
DATE OF RULING:	5 June 2001
CASE MAY BE CITED AS:	R v Norman Alexander Memery
MEDIUM NEUTRAL CITATION:	[2001] VSC 200

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Criminal Law – Ruling – Application claiming no case to answer.

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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:

1. The accused has been charged with the murder of Trevor Tamme on 13 May 2000. At the conclusion of the prosecution case. Mr Toohey, who appeared for the accused,  applied to me to rule that there was no case to answer.  I declined to accede to that application.  I said that I would provide my reasons later.  These are the reasons.

1. I have applied what I understand to be the relevant principles as derived from A-G’s Reference (No 1 of 1983) [1983] 2 VR 410, Doney (1990) 171 CLR 207 and Case stated by DPP (No 2 of 1993) (1993)70 A Crim R 325. If the evidence is capable of supporting a verdict of guilty, the matter must be left to the jury. In assessing the evidence, I am bound to assume that the jury would draw inferences as to intermediate facts most favourable to the prosecution.

1. The accused was interviewed by the police on 13 May 2000.  He gave an account to the police in which he said that he had been in a scuffle with the deceased near the home of his former girlfriend Ruth Hartney in Healesville. He said that the deceased had taken him by the throat, and held him from behind. Twice the two men had gone to the ground and had got up and walked on.  He said that, on a third occasion, he had been forced to his knees.  He said that then, because he could not breath, and that he feared for his life, he had taken a knife from his pocket and had swung the knife behind him.  The evidence was that the deceased had died shortly after that from a stab wound to the chest that had penetrated the heart. The accused told the police that he had not wanted to kill the deceased, but had acted in self-defence.

1. The accused was examined by a doctor on 13 May 2000.  The doctor noted signs of one or more of redness, tenderness or swelling on the front and both sides of the neck, and subjunctival haemorrhages consistent with the accused having been held in a potentially lethal headlock. The deceased was found to have died from one only clean stab wound to the chest.  There were signs of both men having been involved in a scuffle on a bitumen surface.  The medical evidence gave prima facie strong support to a claim of self defence.

1. The prosecution case was that self-defence was negatived, and murderous intent was established, because certain aspects of the account of the accused were not credible.  The prosecution case was that support given by the medical evidence to the account of the accused was limited in its scope. It was only as to that part of the account of the accused where he said he had been held by the throat, that is in a headlock.  The prosecution case accepted that there had indeed been a period when the accused was held by the deceased in a headlock.  But that was not the time when the knife was used.  Accordingly, the prosecution case depended upon certain inferences being drawn, including that the accused was not to be believed as to having drawn and used his knife at a time when he was in a potentially lethal headlock, and as to his not having wanted to kill the deceased.

1. In support of having those inferences drawn, the prosecution relied upon a number of aspects of the evidence.  They included: alleged lies told by the accused in the record of interview; aspects of what the accused said to the police as to the deceased having called for the police; the failure of the accused to speak of having been in a headlock to two independent witnesses; evidence of a strong antipathy having been shown by the accused towards the deceased; and evidence of two male voices audible on a recording made near the scene.

1. Mr Toohey put to me that the jury would be speculating, rather than drawing legitimate inferences, as to all of those matters. As to some matters taken individually, like the voices, I accept what he put to me.  As to the cumulative effect, I am unable to accept what was put.  In several significant respects, the jury could readily infer that the accused had said things to the police that were not credible. That included his saying to the effect: that he knew nothing about damage to the deceased’s vehicle; that he had not been to Ruth Hartney’s home after she got a restraining order; that he had not made any phone calls to the home that night; that he did not recall going to her home that night; that he did not recall pulling out roses or damaging a car that night; and that he had no idea it was the deceased chasing him from the home.  In the light of those matters, the jury could more readily reject the account of the accused as to the timing of the use of the knife.  I am also satisfied that the jury could draw inferences adverse to the accused first as to the accused being antipathetic towards the deceased, and also from the accused not having mentioned to the witnesses Knight and Lew that he had been held by the throat, or in a headlock, or otherwise so as to believe he was being throttled.

1. Applying the relevant legal principles in the light of my assessment of the evidence, I was satisfied that there was a case to answer.

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