R v O'Connor
[2005] VSC 330
•12 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1402 of 2005
| THE QUEEN | Plaintiff |
| v | |
| TASMAN O'CONNOR | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 August 2006 | |
DATE OF RULING: | 12 August 2005 | |
CASE MAY BE CITED AS: | R v O'Connor (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 330 | |
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CRIMINAL LAW – Evidence – Assault on deceased day before death as evidence of animosity towards deceased – Relationship evidence – Prejudice to accused able to be offset by judicial direction – Statement by deceased – Hearsay - State of mind of deceased.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Office of Public Prosecutions |
| For the Accused | Mr M. O’Connell | Slades & Parsons |
HIS HONOUR:
The accused man, Tasman O’Connor, has been charged with the murder of Graham Leonard Band at Footscray on 1 February 2004. The Crown alleges that the accused man committed the murder in the company of one Darren Blackburn. Blackburn has been charged with the murder and has pleaded guilty. The accused was known to the deceased, having met him during the previous year. The accused referred to the deceased as his uncle and intermittently stayed at his flat at Unit 6, 127 Gordon Street, Footscray.
On 31 January 2004, that is, the day before his death, the deceased was attacked and severely beaten outside his unit, which was located on the first floor of a block of Housing Commission flats. He was conveyed to the Western General Hospital. The Crown alleges that it was the accused man and Blackburn who assaulted the deceased.
The Crown intends to call evidence as to that assault in order to prove that the accused man bore animosity to the deceased.
Initially, Mr O’Connell, who appears on behalf of the accused, did not oppose the admissibility of the evidence of the assault of 31 January but sought a ruling from me as to the admissibility of what the deceased had said to the police officers, Rooney and Gardiner, who interviewed the deceased at the Western General Hospital. Mr O’Connell submitted that I should admit the evidence as to that conversation because it is relevant to the relationship between the deceased man and the accused man. However, in the course of developing those arguments to me, Mr O’Connell then submitted that I should rule that all evidence concerning the 31st January assault should be excluded. Mr O’Connell made that argument on the basis that the probative value of the evidence was outweighed by its prejudicial potential and therefore the evidence should not be admitted in the exercise of my discretion.
It is therefore necessary for me first to deal with that submission, that is, the submission that the evidence concerning the assault of 31 January 2004 should be excluded. Mr O’Connell did not contend that the evidence concerning the assault is not relevant or is excluded by any other rule of evidence. Plainly, the evidence is relevant to the issues in the trial. If the jury were satisfied that it was the accused man who attacked and severely beat the deceased on 31 January, then that evidence would be relevant to establish that the accused man bore significant antipathy towards the deceased. Indeed, Mr O’Connell correctly accepted that such evidence would have been quite substantial probative value. The proof of animosity borne by the accused man to the deceased and to such a significant degree less than 24 hours before his violent death would clearly be of probative value to the Crown case and relevant to the issues in the forthcoming trial.
Mr O’Connell’s principal submission was that the evidence would, however, be highly prejudicial to his client and that such prejudice could not be adequately allayed by an appropriate direction by me to the jury. In particular, he submitted that there is a real risk that the jury might misuse the evidence by reasoning from the evidence that the accused man is a violent person who had a disposition to assault the deceased.
I do accept that if the jury is not suitably directed, then there is a risk that it may misuse the evidence in the manner referred to by Mr O’Connell. However, if I were to admit the evidence, I would direct the jury at an appropriate stage in the trial, and in my charge, that the evidence, if accepted by the jury, might only be used to prove that the accused man bore animosity to the deceased the day before his death. The jury would be specifically directed that it could not use the evidence for any other purpose. In particular, the jury would be instructed not to use it in order to reason that the accused man was given to assaulting the deceased man, nor would the jury be permitted to use the evidence to reason that the accused man was generally a violent person with a propensity to committing wanton assaults on other persons.
Relationship evidence is regularly given in courts in a wide variety of situations. Often it is necessary to accompany that evidence with directions as to its use and with warnings as to its misuse by the jury. This is because such evidence can otherwise adversely reflect upon the character and disposition of the accused man. The experience of trial judges is that juries are conscientious in observing those directions and that verdicts by juries and questions by them do reflect that they understand, adhere to and apply those directions and warnings.
The evidence is, as I have stated, probative to a significant degree. I accept that there is some risk of additional prejudice to the accused man; however, as I have stated, I do consider that that prejudice can be appropriately offset by directions given by me to the jury.
In this context I note that the evidence which is to be given in relation to the assault of 31 January is not, in quantitative terms, large. It will involve a relatively small number of witnesses. There were no eyewitnesses to the assault; therefore, there will be no contentious identification evidence. It appears that the only contentious evidence in all probability will be the evidence of one Armstrong, who states that on 31 January the accused man and Blackburn admitted to him that they had assaulted the deceased that day. The evidence of Armstrong in that respect is in short compass. Generally, the evidence concerning the events of 31 January can be called chronologically so that the jury will not be distracted by it. I do not consider that there is a risk that the events of 31 January will overwhelm the trial or will unduly distract the jury from the issue in the case, namely whether it was the accused man who, in company with Blackburn, attacked and murdered the deceased on 1 February.
For those reasons I consider that the evidence of assault of 31 January is admissible. I see no reason to exercise my discretion to exclude.
I return to the submission made by Mr O’Connell that I should rule that the evidence of Constables Rooney and Gardiner as to what the deceased man said to them at the Western General Hospital on 31 January 2004 is admissible in evidence.
The interview by those police officers with the deceased is set out at pp.331 to 334 of the depositions. During that interview the deceased man told the police that he did not see anyone before he was struck from behind. He was asked if he saw anything at all about his attackers, such as their hair colouring or clothing, to which he responded “No, nothing.” The police officers then asked him some questions about the identity of the accused and as to his relationship with the accused. There then ensued the following passage in the interview with the deceased man which I shall set out in quotes.
“I [Rooney] said: ‘Are you telling us everything Graham, something seems to be missing?’
He said: ‘I’m telling you all I know.’
Gardiner said: ‘Graham, I think you might know who assaulted you, is that the case?’
He said: ‘No.’
Gardiner said: ‘Was Troy involved in any way?’
He said: ‘No.’
I said: ‘Did anyone else come out of the flats when it happened?’
He said: ‘No, I don’t squeal, I’ve been hit heaps.’
I said: ‘Did you call our or yell when you got hit?’
He said: ‘No.’
I said: ‘Graham, if you’re worried or someone is intimidating you, you can tell us, we can help you.’
He said: ‘I don’t know, I told you.’
I said: ‘I think your nephew did this to you, is that the case?’
He said: ‘You’re wrong, mate’.”
Mr O’Connell submitted that I should admit in evidence the passage from that extract of the interview in which the deceased said that the accused man was not involved in the assault of him. Mr O’Connell submitted that that evidence is not hearsay; rather, the evidence discloses the attitude of the deceased to the accused man, namely that the deceased was well disposed to, and protective of, the accused man. He submitted that proof of that state of mind of the deceased is not hearsay and is relevant to the issue whether the relationship of the accused and the deceased was one in which the accused bore the deceased animosity.
Mr O’Connell referred to the principles stated by the High Court in R v Walton[1] and as applied by the Court of Appeal in R v Macrae.[2]
[1](1988) 166 CLR 283.
[2](1995) 80 A Crim R 380 at 387.
Mr Kayser, who appears for the Crown, submitted that the evidence sought to be adduced at the behest of Mr O’Connell is hearsay. He submitted that it does not disclose anything about the state of mind of the deceased. Further, he submitted that if the evidence does disclose anything as to the state of mind of the deceased, the evidence is not relevant to the issues in the trial. Mr Kayser submitted that it is not relevant what the deceased felt about or towards the accused; rather, what is relevant is what the accused felt about or towards the deceased.
I accept the submission of Mr Kayser that the bare statement by the deceased (p.333 of the depositions) that the accused was not involved in the assault in any way, does not disclose anything about the state of mind of the deceased. That bare statement, standing alone, reveals nothing about how the deceased felt concerning the accused man. If it were admitted standing alone, it would be but mere hearsay and inadmissible as such.
However, at the committal proceedings Mr Rooney was cross-examined by counsel who appeared on behalf of Mr O’Connor. Mr Rooney was asked about his observations as to the attitude of the deceased when the deceased was asked the questions which are set out at p.334 of the depositions and, in particular, when Mr Rooney suggested to the deceased that Mr Rooney thought that it was the deceased’s nephew, the accused, who had assaulted him. In response to that cross‑examination, Mr Rooney stated that when he made that suggestion as to his own belief to the deceased, the deceased man reacted angrily and was plainly upset.
In my view, the combination of what the deceased man said and how he said it does disclose something concerning the state of mind of the deceased. That evidence disclosed that the deceased was upset by a suggestion that it was the accused man who was involved in the assault on him. In that way and to that extent only, if the evidence were admitted in this case it would not be hearsay.
The next question is whether the state of mind of the deceased man concerning the accused is evidenced by that angry response by the deceased would be relevant to any fact in issue in the trial. For the purposes of this ruling I accept that a jury might conceivably accept that the deceased’s response indicated that the deceased was well disposed to the accused man; in other words, he was so incensed by a suggestion that the accused man attacked him as to become angered by it. the question is whether such a reaction by the deceased man is at all relevant to the issues in this case.
I do consider there is substantial force in Mr Kayser’s submission that the issue as to how the deceased man felt about or towards the deceased is not relevant. The issue in the trial will be how the accused felt towards the deceased. However, on the other hand, it might be said that there are always two parties to any relationship. The attitude of one party to another may at least in part affect or be reflective of the attitude of the later to the former. Whether that is so is a matter for a jury. Often the exact opposite is the case. Nonetheless, and bearing it that in mind, I do not consider it can be said that the proof of the attitude of the deceased to the accused on 31 January is irrelevant, particularly in light of the intention of the Crown to call evidence as to the animosity borne by the accused to the deceased on that day.
I therefore rule that the evidence of the interview between Mr Rooney, Mr Gardiner and the deceased on 31 January is admissible for the purpose to which I have just adverted.
Mr O’Connel submitted that it is only necessary in order to establish the matter to which he has referred to call some parts of the interview to prove the state of mind of the deceased. In particular, he submitted to me that it would be sufficient to prove the parts of the interview in which the deceased stated that he did not see who hit him and in which the deceased at p.333 stated that the accused was not involved in the assault in any way.
I agree that some parts of the interview may be able to be appropriately excised if the interview goes before the jury. For example, it would be appropriate to excise the question: “Did anyone else come out of the flats when it happened?” and the answer: “No, I don’t squeal, I’ve been hit heaps”. Equally, it might be possible to exclude the next question and answer, namely: “I said: ‘Did you call out or yell when you got hit?’ Answer: ‘No’.” However, Mr O’Connell submitted that I should exclude all of the questions and answers on p.334 and in particular the questions and answers in which it was the police who suggested to the deceased that it was his nephew who had hit him. However, the difficulty with that proposition of course is that if the evidence of that interchange is excluded or excised, then the whole basis for the admissibility of the evidence will disappear. As I have already stated, the evidence as to the interview between the police officers and the deceased is admissible, but only because of the response of, and angry reaction by, the deceased man to the suggestion (p.334) that it was the accused who had attacked him.
In conclusion, I rule that the interview between the police officers and the deceased is relevant and admissible. I would, if the evidence were to be called, permit there to be excised the parts at the foot of p.333 and the very top of p.334 to which I have referred.
However, for the reasons I have already indicated, if the evidence were to be admitted, it would be necessary to call the balance of p.334 and, in particular, the allegations by the police to the deceased that it was the accused who hit him. For (at the risk of repetition), as I stated, it is that passage which renders the evidence admissible. In argument, Mr O’Connell did inform me that if that were the case he would not seek to have the interview adduced in evidence. I understand from Mr Kayser that if Mr O’Connell does not press to have the evidence admitted, then the Crown would not call it in evidence
I so rule.
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