R v Sharif and Ors (Ruling No 1)
[2019] VSC 680
•10 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0033
S ECR 2019 0036
S ECR 2019 0034
S ECR 2019 0035
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| AHMED AWALOW SHARIF ABDIFATAH SHARIF DAWUUD ABDI SALAH ABUKAR | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 October 2019 |
DATE OF RULING: | 10 October 2019 |
CASE MAY BE CITED AS: | R v Sharif & Ors (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 680 |
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CRIMINAL LAW – Murder and connected assault charges - Evidence – Earlier attempted robbery by accused preceding final events – Whether relevant – O’Leary v The King considered - Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008, s 55(1), s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton with Ms D Karamicov | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused Ahmed Sharif | Mr P Doyle | Papa Hughes Lawyers |
| For the Accused Abdifatah Sharif | Mr S Bayles | Stary Norton Halphen |
| For the Accused Abdi | Mr C Pearson | Tony Hannebery Lawyers |
| For the Accused Abukar | Mr S Kenny | Emma Turnbull Lawyers |
HIS HONOUR:
Background
The four accused face charges in relation to events which took place in Castley Crescent, Braybrook, at about 9:30pm on 9 December 2017. A man named Paul Duncanson was struck by a Hyundai motor vehicle driven by the accused Ahmed Sharif. He later died in the Royal Melbourne Hospital. Ahmed Sharif is charged with his murder. Shortly after Paul Duncanson was struck by the car, his brother Sean was allegedly set upon by the other accused. Serious injury was inflicted upon him. Charges 2 to 4 are laid in respect of that attack. There is some evidence that Paul Duncanson may also have been further attacked after having been run over by the vehicle. There are no charges in relation to that.
The events in Castley Crescent were preceded by an earlier incident in the front yard of a property at 237 Ballarat Road, Braybrook. That event was relevantly described by Sally Roach in her second statement, as follows:
I would say about 10 minutes before I detailed the event when I saw Paul outside my front door I had one of the African guys come to my house alone. At the time he knocked on the door. I was home alone inside the house... I opened the door and saw an African male I know as Dawad. He is also known as Deck or Dextor.[1] When Dawad came on Saturday 9 December 2017, he asked me for a cigarette and I told him I did not have any… I ended up shutting the door on him and kept (sic) on banging on it until I opened the front door again. He kept asking me for a cigarette and I kept telling him I didn’t have any…Dawad said, ‘Come on Sally!’. He seemed like he had been drinking or was under the influence of something, he was really persistent whereas in the past he was always quiet and respectful and would call me love. At the end I told him to fuck off and…also told him to come back later. I slammed the door on him. I did not see anybody else with him nor could I hear anybody else with him or around during that visit...
About ten minutes later when I heard banging and the moaning noise I opened the front door. I saw Paul was slumped on a chair closest to the front door of my house. Immediately in front of the front doorway there is a veranda there. We have three of those chairs out the front on the veranda… Paul was slumped back against the back support of the chair with his hands up and his palms facing outwards.
There were four young African males around him and right at him at the time. They were going through and rummaging Paul’s pockets. I think he had a pair of jeans on and a jacket. Dawad who was the first person on top of Paul asked in a loud and aggressive or forceful manner as they were going through his pockets, ‘What have you got?’ Paul answering with, ‘Nothing mate nothing’.
As soon as Paul saw me whilst he was still slumped back on the chair he said directing himself to the African males, ‘What the fuck, I don’t even know you bro’. He then looked at me and said in a pleading fashion, ‘Sally!’ That was said in a manner where he was asking for help. Having heard that from Paul and seeing what was going on I yelled out, ‘Just fuck off’.
I saw Paul had blood on his face and it was coming out of his nose at a fast rate. Paul was holding onto his nose trying to stop the blood from flowing.
The four African males then started backing off from Paul off the veranda and two were getting pulled back by the other two. One of the male (sic) getting pulled back was Dawad.
The other African male who was being dragged back then said to me by yelling in an aggressive manner, ‘If you ever say no to me again, I’ll bash every one of your customers that come here’. He then said, ‘You’re lucky my brother’s holding me back’. (emphasis added)
[1]This is a reference to Dawuud Abdi.
Mr Pearson for the accused Abdi seeks the exclusion of the evidence italicised in the third paragraph set out above. No other accused seeks that the evidence be excluded, or that any of the other evidence set out above be excluded.
Defence submissions
Mr Pearson submitted that the evidence in question amounted to an uncharged act of attempted robbery. Whilst there was relevance, contextually, to the hostility and apparent violence by the men on the veranda towards Paul Duncanson as explaining what happened later in Castley Crescent, the evidence of the attempted robbery would add nothing to the narrative, Mr Pearson submitted. He submitted that the evidence was not relevant.
In the alternative, Mr Pearson submitted that even if the evidence did have some marginal relevance, its probative value would be outweighed by the danger of unfair prejudice to the accused Abdi. The unfair prejudice to which Mr Pearson referred was to be found in the risk that the jury may conclude that the accused is the type of person who would involve himself in an attempted robbery in circumstances where he was intoxicated and disinhibited, and might therefore be more likely to carry out acts of violence in Castley Crescent.
Prosecution submissions
Mr Hutton, for the Crown, submitted that the exclusion of the evidence in question would amount to sanitising the evidence in a way which would deprive the prosecution of the capacity to have the jury appreciate the true nature of the event at 237 Ballarat Road, Braybrook. The fact of the attempted robbery and the aggressive words spoken by the accused Abdi in connection with it would create a realistic impression in the minds of the jury of what actually occurred during that incident. In the absence of that evidence, what would be left would be an inexplicable event for which blame may not necessarily even be laid at the feet of the accused Abdi and his colleagues. The jury might consider it possible that Mr Duncanson had been the aggressor but had ‘lost the battle’.[2]
[2]Transcript 136.
Mr Hutton submitted that by virtue of the fact that the evidence would assist in this process of properly explaining the earlier event, which was itself the genesis of the later incidents in Castley Crescent, it was clearly relevant. Furthermore, it was relevant because it would better explain the conduct of Paul Duncanson in going home and then setting off in apparent pursuit of the men in the Hyundai. In addition, the aggression and violence by Abdi to Paul Duncanson, evidencing as it would his animosity towards him, might go some way to providing a motive for Abdi to later attack the brother of Paul Duncanson who was in his company immediately before the attack in Castley Crescent.
As to the question of unfair prejudice, Mr Hutton submitted that there would be no risk of the jury using the evidence in an illogical or impermissible way. If there was any such risk, it could be mitigated by means of a straightforward direction to the jury. The probative value of the evidence was not outweighed by the danger of unfair prejudice.
Analysis
Section 55(1) of the Evidence Act 2008 (‘the Act’) provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally effect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 137 of the Act provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
The tragic events which unfolded in Castley Crescent at about 9:30pm cannot be properly assessed without an understanding of what transpired only half an hour earlier at 237 Ballarat Road. At that time, there was an aggressive confrontation between Abdi and others on the one hand, and Paul Duncanson on the other. Not everything is known about the confrontation, but the observations of Sally Roach as set out in the impugned portion of her statement are central to any analysis of the event. She witnessed a portion of the event which clearly showed the continuing aggression of Abdi and his colleagues towards Paul Duncanson, and gave some explanation for and context to that aggression. Duncanson, as evidenced by his injured state, had already had some violence inflicted upon him, and was seemingly helpless in the face of the continuing attention of the men, whose apparent purpose was revealed by their actions and the demand of Abdi for property.
A mere half an hour later, Paul Duncanson was struck by a motor vehicle driven by an associate of Abdi, and his brother Sean Duncanson was allegedly set upon by a number of men including Abdi.
In my view, the connection between the event at 237 Ballarat Road and the events in Castley Crescent was so close as to make a proper understanding of the former integral to an assessment of the latter. For that reason, as I see it, there is no doubt that the impugned observations of Sally Roach are relevant in this trial. Those observations explain the earlier event, and give it its essential character.
Mr Pearson argued that the impugned evidence would add nothing to the narrative. I do not agree. It is what explains the narrative, and gives it meaning. It also goes towards explaining the anger of Paul Duncanson, and his subsequent behaviour in going out in search of the group of men who attacked him.
Mr Hutton submitted that another basis of relevance was the fact that the animosity evidenced by the conduct of Abdi in the early event may also provide a motive for him to have later attacked Sean Duncanson, the brother of the previous target of his aggression. That submission was no doubt made in the context of the fact that Abdi denies any involvement in the attack upon Sean Duncanson.
Looking at things from a slightly different perspective than that represented by the last-mentioned submission of Mr Hutton, it does seem to me that the animosity and aggression directed by Abdi towards Paul Duncanson may well be relevant to an assessment by the jury of whether or not he then involved himself in the attack upon Sean Duncanson around the corner only half an hour later. The accused’s overtly angry state may well have subsisted over that short time period, and Sean Duncanson, by virtue of his close proximity to the target of the earlier animosity, may well have become a likely target of the accused’s continuing aggression, making his involvement in the assault more likely.
Another possible basis of relevance would be under the principle enunciated by the High Court in O’Leary v The King[3] relating to events occurring in a connected course of conduct. That decision arose from a murder conviction. The accused and co-workers were at a timber camp. During a session of drinking at the camp the accused had hit others over the head. The victim was found dead of head injuries the next day. Dixon J stated:
The part which the prisoner took in the drunken orgy which, as the facts suggest, culminated in the fatal attack upon the deceased man would appear to me to be relevant to the question whether the prisoner was the assailant and, if so, whether he was at the time capable of forming, and did form, the intention which would make his crime murder.
The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner’s generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide.[4]
[3](1946) 73 CLR 566 (‘O’Leary’).
[4]Ibid 577.
The principle of admissibility considered in O’Leary survived the introduction of the Evidence Act 2008.[5] Furthermore, if the evidence in question is admissible under that principle, or on the basis that it would permit an inference to be drawn that Abdi had the same continuing, angry state of mind at the time of the alleged assault upon Sean Duncanson as he had at the time of the attack upon Paul Duncanson, it would not be tendency evidence within Part 3.6 of the Act.[6]
[5]R v Adam (1999) 106 A Crim R 510, 515.
[6]Ibid.
In summary, I am satisfied that for a number of reasons, the impugned evidence of Sally Roach is relevant.
Having determined that the impugned evidence is relevant, I am required to turn my mind to s 137 of the Act. That provision would require me, as a matter of law, to refuse to admit the evidence if its probative value is outweighed by the danger of unfair prejudice. The onus or burden under the section is on the accused.
As the ALRC explained it prior to this provision coming into effect, ‘prejudice’, as the term had been used in the common law:
does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have. It is proposed to retain this judicial discretion in its conventional form.[7]
[7]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) Vol 1, [957].
I am required to carry out the balancing exercise referred to in the provision. If the probative value of the evidence is outweighed by the danger of unfair prejudice, I am required as a matter of law to exclude the evidence. This is not the exercise of a discretion.
I set out in my summary of his submissions the danger of unfair prejudice relied upon by counsel for the accused.
In this case, it is not submitted on behalf of Abdi, or, for that matter, any of the other accused, that evidence of the violent attack upon Paul Duncanson at the front of 237 Ballarat Road, Braybrook, should be excluded. Even were the impugned evidence to be excluded, the jury will be faced with evidence indicating that Paul Duncanson had been assaulted and injured by a person or persons, and that, shortly after this, he was being set upon by a group of men including Abdi. It will be necessary for directions to be given to the jury to ensure that they do not misuse this evidence.
Were the impugned evidence to be permitted to be led, it would simply add another facet to the directions of law which would otherwise be required. In my view, a direction could readily be fashioned to ensure the jury would not use, in any impermissible way, the evidence showing the involvement by Abdi in an apparent robbery upon Paul Duncanson half an hour before his alleged assault upon Sean Duncanson.
In my view, any danger of unfair prejudice would be readily controlled by such a direction. I therefore am not satisfied that the probative value of the impugned evidence is outweighed by the danger of unfair prejudice.
Conclusion
The impugned evidence is relevant. There is no call for its exclusion under s 137 of the Act. I will therefore permit it to be led.
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