R v Robinson (Ruling No 1)
[2009] VSC 420
•16 September 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1404 of 2009
| THE QUEEN |
| v |
| LEIGH ROBINSON |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2009 | |
DATE OF RULING: | 16 September 2009 | |
DATE OF REASONS: | 22 September 2009 | |
CASE MAY BE CITED AS: | R v Robinson (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 420 | |
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CRIMINAL LAW – Relationship evidence – admissibility.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC Ms D Piekusis | Solicitor for Public Prosecutions |
| For the Accused | Mr J Desmond | Doogue & O’Brien |
HIS HONOUR:
Prior to empanelment of the jury in this matter I determined a number of contested issues of admissibility. I dealt with two such issues on Wednesday 16 September 2009. In relation to one of them, being the admissibility of evidence concerning an incident which allegedly occurred some two weeks prior to the fatal incident, I indicated that I would publish written reasons subsequently. These are those reasons.
The Crown case
The Crown case is that at approximately 9.00 am on 28 April 2008 the accused, Leigh Robinson, went to the home address of the deceased, Tracey Greenbury. The Crown alleges that after a brief conversation during which the accused remained in his car and the deceased squatted by the passenger side door, Ms Greenbury ran to a neighbour’s house. The Crown alleges that Mr Robinson chased her and fired one shot from a shortened shotgun into the back of her head. She died at the scene.
Mr Robinson and Ms Greenbury had been in a relationship prior to the fatal incident.
The prosecution proposed to lead evidence concerning an incident which allegedly occurred some two weeks prior to the fatal incident in which the accused allegedly frightened or terrorised the deceased and, amongst other things, produced a gun in her presence. The Crown’s evidence in relation to this incident was confined to evidence of things the accused himself allegedly said about it. In particular, the Crown proposed to call evidence from the deceased’s father and from the accused’s cousin, and also to lead evidence from the accused’s record of interview about the prior incident. The Crown did not propose to lead evidence of things that the deceased had told people about the prior incident.
Position of the defence
The position taken by counsel for the defence in the trial is that the Crown would not prove beyond reasonable doubt that the deceased was killed by a deliberate act of the accused, and would not prove beyond reasonable doubt that the accused acted with the intention to kill or cause really serious injury. The defence contend that the Crown would be unable to negate the proposition that the death was caused by the accidental discharge of the shortened shotgun.
Accused’s record of interview
The accused left the scene of the incident after the shooting. He was apprehended on 30 April 2008 and was interviewed by officers of the Homicide Squad. It is important to refer to some aspects of the account which the accused gave.
In response to question 42,[1] the accused gave his first account of the incident. He described ringing the deceased and asking to come around. He described talking to her whilst he remained in his car. He said that she then “lost it” and said a couple of things as a consequence of which she took off and he followed her. In that context the accused said: “It’s only just been in recent days that there was a big hullabaloo about the whole shit fight, you know”. He referred to the fact that what occurred at the car caused him to “lose it again” and he also said “she’s done this twice to me now”. He then went on to refer to the circumstances of the shooting. In my view, when the record of interview is read as a whole, the references which I have quoted in response to question 42 are explicit references by the accused to the earlier incident and demonstrate that in the accused’s mind there is a significant connection between the two incidents.
[1]References to question numbers are to the numbers which appear in the transcript which is part of the depositions.
The next passage to which I wish to refer begins at question 206. The accused is being asked about the content of the discussion at the car and he responds by saying that they were trying to “sort out the difference we had”. When asked about this over the subsequent questions he refers to an incident which had changed the relationship a few weeks before and says that that incident related to a phone call from the deceased’s brother (question 220). It becomes clear that this incident relating to a phone call from the brother had led to a situation where the accused had “frightened the shitter” out of the deceased (question 239), and that this fear was the difference existing between them on the morning of the fatal incident (question 242).
In response to question 267, the accused talks of the relationship between the two of them in terms which do not explicitly refer to the earlier incident, although it seems to me that the last three lines of the accused’s answer may well implicitly refer to it.
Commencing at question 370, the accused is asked specifically by police about the earlier incident. In subsequent questions it is clear that the event police are asking him specifically about is the same event as the one to which the accused had referred earlier when talking of the phone call from the deceased’s brother. In response to the questions following question 370 the accused repeats that she was frightened of him as a result of the earlier incident and refers to the fact that the gun was present in the earlier incident. The accused places the earlier incident as having occurred “not quite two weeks ago” (question 392). The accused agrees that the earlier incident was the turning point in their relationship (questions 412-413).
In response to question 426, the accused gives an account of what he had said to the deceased’s father about the earlier incident. In response to question 436 the accused again speaks of the relationship in general, but, again, it seems to me that implicit reference is made to the earlier incident when the accused attributes to the deceased the words: “We’ve got to get a chance to get over”.
Commencing at question 448, the accused correlates the two incidents by reference to the deceased having “pushed … buttons”, by reference to the accused and the deceased verbally spitting back at each other, and by reference to there having been a build up of things prior to the shooting.
In response to question 496, the accused relates what was said at the car immediately prior to the fatal incident. He attributes to himself the question: “Can I come in for a cuppa” and he says that the deceased responded “I don’t know, I’m not at that position yet. I’m not at that stage yet or situation yet”. It seems to me that this conversation, as related by the accused, can only be understood if one has knowledge of the incident which had occurred earlier.
Commencing at question 590, the accused is asked about the involvement of the gun in the earlier incident and, it seems to me, he accepts the proposition that part of the reason why the deceased was frightened was because of the presence of the gun (see particularly the responses to questions 591-2 and 603-7).
For these purposes the relevant conclusions to be drawn from the account given by the accused in his record of interview are these:
(1)There was a specific incident approximately two weeks prior to the fatal incident.
(2)As a result of that specific incident the deceased was frightened of the accused. In part at least, that fear was related to a gun.
(3)The earlier incident changed the relationship between the accused and the deceased and was the turning point in that relationship.
(4)The earlier incident and the consequent change in the relationship was the source of the difference between the two of them which was being discussed in the car immediately prior to the fatal incident.
I note that, in my view, the accused also relates the two incidents to each other in two intercepted phone calls (Fraser calls 32 and 41) made shortly after the fatal incident.
Submissions of the parties
On behalf of the prosecution, Mr Rose SC submitted that evidence of the prior incident was particularly important in this case where the principal issue was whether the Crown could negate accident. In this respect reliance was placed upon R v Wilson,[2] R v Juliano,[3] R v Anderson[4] and R v Smith.[5]
[2](1970) 123 CLR 334.
[3][1971] VR 412.
[4][2000] VSCA 16.
[5](Unreported, Coldrey J, 29/1/93).
On behalf of the accused, Mr Desmond submitted that evidence of the earlier incident was highly prejudicial. He submitted the evidence disclosed a propensity to violence of the accused and there was a significant risk that a jury might convict not on the basis of what happened on the day but on the basis of what had happened two weeks before. It was submitted that s 398A of the Crimes Act 1958 applied. Reference was made to R v Ellul,[6] R v Spina[7] and R v Sadler.[8] It was submitted on behalf of the accused that there would be other evidence of the volatile relationship between the accused and the deceased and that the highly prejudicial evidence about the earlier incident was insufficiently probative to warrant its admission.
[6][2008] VSCA 106.
[7][2005] VSCA 319.
[8][2008] VSCA 198.
Counsel for the accused analysed in some detail the probative value of the evidence about the earlier incident. It was submitted that the only issue in the case was accident and that what occurred in the earlier incident would not assist the jury at all to decide whether the discharge on the fatal occasion had been proved to be a consequence of a deliberate act of the accused. It was submitted that there was no process of logic whereby one could reason from the fact that the accused terrorised the deceased two weeks before by waving a gun, where there had been no discharge, so as to determine whether the Crown had proved beyond reasonable doubt that the discharge on the fatal occasion was deliberate.
Counsel for the accused emphasised that it was only this aspect of the relationship evidence that was objected to and that other evidence of the nature of the relationship would still be led.
In reply, senior counsel for the prosecution submitted that the narrow focus of counsel for the defence’s analysis of the probative value of the evidence was misconceived and that a full picture of the nature of the relationship between the accused and the deceased was relevant to the issue of accident, as the decision in R v Wilson demonstrates.
Applicable legal principles
Like all other evidence, evidence of the relationship between the accused and the deceased is admissible only if it is relevant. Where it is alleged that one party to a relationship deliberately performed an act which has caused the death of the other, and the alternative hypothesis of accident is raised, evidence of the nature of the relationship between the parties at the relevant time will often be relevant to the issue the jury will need to address. As Barwick CJ held in R v Wilson[9]:
“Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.”
[9](1970) 123 CLR 334, 337.
The issues of admissibility and use of relationship evidence in the context of criminal trials of this kind were reviewed in some detail by the Court of Appeal in R v Gojanovic (No 2)[10]. The principles set out there seem to me to be as follows:
(1)Evidence as to the relationship between the accused and the victim is admissible provided it is relevant to an issue between the Crown and the accused. This normally means that previous conduct of the accused or deceased must be sufficiently proximate in time to the event that is the subject of the charge so as to be logically relevant. The existence of a troubled and fraught relationship, culminating in an act of violence, may be relevant to providing an explanation for the conduct of the accused on the date of the offence.
(2)Where relationship evidence of this kind is admitted, it is important that the jury be warned against improperly reasoning that the accused has a propensity or tendency to violence, is accordingly the sort of person likely to have murdered the deceased, and is therefore more likely to have murdered the deceased.
(3)Thus, it is important that the trial judge give the jury careful directions concerning the use which can be made of the evidence by specifying what the relevant purpose of the evidence is.
[10][2007] VSCA 153.
Since Gojanovic (No 2) the Court of Appeal has dealt with relationship evidence in other contexts, and I refer in particular to R v Ellul[11] and R v Sadler[12].
[11][2008] VSCA 106.
[12][2008] VSCA 198.
In R v Ellul, the Court of Appeal emphasised that relationship evidence may be evidence of uncharged acts and that such evidence is a form of propensity evidence. Uncharged acts in this context means not just conduct which constitutes a criminal offence but other discreditable conduct reflecting bad character. Evidence of uncharged acts is a form of propensity evidence and s 398A of the Crimes Act 1958 accordingly applies. Under s 398A(2) propensity evidence relevant to facts in issue is admissible if the Court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have.
In R v Sadler the Court of Appeal considered the impact of the High Court decision in R v HML[13]. Both R v HML and R v Sadler concerned sex offences. The relevant issue was whether it was necessary that uncharged acts be proved beyond reasonable doubt. For present purposes, it is not necessary to consider the position in relation to uncharged acts of a sexual nature. In relation to uncharged acts of a non-sexual nature the conclusion reached by the Court of Appeal was as follows:
“It follow in our view that, unless and until the High Court says otherwise, in the case of uncharged non-sexual acts a judge is not required to give a separate direction about the standard of proof applicable to that evidence unless the judge perceives that there is a real risk of the jury using that evidence as an important step in their process of reasoning to guilt. In that event, the jury should be directed that they should not rely on the evidence for that purpose unless satisfied of its truth beyond reasonable doubt. Where no such risk is perceived, no such direction about the standard of proof of the uncharged non-sexual acts need be given.”[14]
[13][2008] HCA 16.
[14][2008] VSCA 198, at [67].
Application here
I ruled that the prosecution should be permitted to lead the evidence they proposed to lead in relation to the earlier incident. I gave the substance of my reasons when announcing that ruling. My reasons are as follows.
The issue foreshadowed as a central issue in the case is accident. In other words, the defence contend that the prosecution cannot prove beyond reasonable doubt that the discharge of the firearm was a result of the conscious, voluntary and deliberate act of the accused, and was performed with an intention to kill or cause really serious injury.
Both the prosecution and the defence agree that evidence of the relationship between the accused and the deceased is relevant. Evidence of the relationship is relevant because it is explanatory of the conduct of both the accused and the deceased on the fatal day, when at the car and thereafter. Indeed, the account given by the accused in his record of interview portrays the earlier incident and the events on the fatal day as being closely related.
The evidence proposed to be led, being the accused’s own account of the earlier incident is, in my view relevant to the issue of whether the act was deliberate in exactly the manner explained by Barwick CJ in R v Wilson. I accept the prosecution submission that the analysis of defence counsel is unrealistically narrow. Evidence of the earlier incident is essential to any proper understanding of what occurred on the fatal day.
I accept that the evidence of the earlier incident discloses discreditable conduct and does constitute propensity evidence. In the circumstances here its probative value outweighs the prejudicial effect.
There is no issue between the parties as to the relevance of evidence about the relationship between the accused and the deceased. The evidence of the relationship would be most incomplete and unsatisfactory if reference to the earlier incident were excluded. Indeed, upon my analysis of the record of interview, very little, if any, of what the accused said about his relationship with the deceased could remain if all reference both explicit and implicit to the earlier incident were excised. The conversation at the car immediately prior to the fatal incident as related by the accused cannot be understood without knowledge of the earlier incident.
Directions
As I indicated to the parties when announcing my ruling prior to empanelment, it will be necessary that close attention be given to the directions to the jury on this issue. I will hear the parties on what should be said as to permissible use, impermissible use, and the standard of proof.
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