R v Smart (Ruling no 2)
[2008] VSC 65
•13 March 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1533 of 2007
| THE QUEEN |
| v |
| KEITH HERBERT SMART |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2008 | |
DATE OF RULING: | 13 March 2008 | |
CASE MAY BE CITED AS: | R v Smart (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 65 | |
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CRIMINAL LAW – Admissibility of evidence – Relevance.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Office of Public Prosecutions |
| For the Defendant | Mr W. Toohey | Galbally & O’Bryan |
HIS HONOUR:
Keith Herbert Smart is charged with the murder of Katie Lee Tanner at North Cranbourne on 14 October 2006.
The case against the accused is circumstantial, indeed to the point that the body of Ms Tanner has never been located.
Based on the evidence which the Crown says underpins the circumstantial case, the Crown has opened to the jury on the basis that on the night of Saturday, 14 October 2006, after visiting Frankston with Ms Tanner and returning to the home of the accused where Ms Tanner was also staying, the accused and Ms Tanner became involved in a confrontation. During that confrontation the accused is alleged to have caused her death, probably with a rubber mallet which was later located by police bearing Ms Tanner’s blood and the DNA profile attributable to the accused. There is other evidence which I do not need to refer to for the purpose of this ruling.
An issue has arisen over a portion of the evidence sought to be led by the Crown, the starting point for which is the witness Eireen Allen.
Ms Allen’s Evidence
Ms Allen resides at a house in the immediate vicinity of the house of the accused in Courtenay Avenue, Cranbourne North. Indeed, her house is, as she puts it, “pretty much opposite” the house of the accused.
Ms Allen says that on 21 or 22 September 2006, at about 8.30 pm, she heard a loud argument coming from across the road which involved three men and seemed to be about a girl who was inside the house. One person was said to be standing near the driveway of the house and two other men may have been standing on the porch.
Somebody in the driveway was saying things like, “you’ve ruined my life, I want her out of here now, go and get her”. He was also referring to one of the men as “fat Keith”. The tone of the voice was very angry. The witness said she could also tell that one of the parties to the conversation was the accused. She went on to say in her statement that the young angry man was saying things like, “I’ll kill you” and “I’m gonna go home and get my gun and I’ll come back and shoot you”. She thought these words were directed at the accused. He was responding by saying, “come here and show me then” and things like that.
Some three weeks later, on 14 October 2006, Ms Allen had been at the Crown Casino attending a concert and arrived home at about 11.45 pm. A couple of minutes after going to bed she heard some raised voices which she described as “mutterley”. She said in her statement:
The tone of the voices was like stressed, I mean it sounded like a guy and a girl trying to keep an argument down. I couldn’t tell what they were arguing about, but it was coming from the Smart’s place. The female voice sounded agitated and although I’m sure there was another male voice involved, there possibly could have been two.
The male and female voices sounded like they were aged in their 20’s. The argument went on for about 5 or ten minutes.
Importantly, Ms Cannon submits that Ms Allen has identified the voice she heard in the September argument as being the same voice she heard on 14 October 2006. The witness’s statement actually says: “I think the same young male was involved in both arguments” (emphasis added).
Mr Bellette’s Evidence
The witness Thomas Bellette is a friend of the accused. He describes being at the accused’s house one evening which he says was in early October 2006, about two weeks before Ms Tanner went missing.
When he got to the house the accused was already drinking with a man named Wayne O’Donnell. Mr O’Donnell was complaining to the accused about his furniture having gone missing and was blaming Mr Bellette for it. Some time later, when Mr Bellette was planning to leave the accused’s premises and while Mr O’Donnell was affected by liquor, Mr O’Donnell started “carrying on” and abusing Mr Bellette about the furniture. Subsequent to the argument starting Mr Bellette says that Mr O’Donnell physically attacked him. He described falling onto the driveway with Mr Bellette on top of him “going off his head and throwing punches”. According to this witness’s account, the accused grabbed Mr O’Donnell and tried to pull him away from Mr Bellette.
All this evidence points to:
· a severe confrontation at about 8:30 pm on 21 or 22 September 2006, which was overheard by Ms Allen;
· a physical fight over furniture at about 7:00 pm in early October 2006 between Mr Bellette, Mr O’Donnell and the accused; and
· a muffled confrontation between one or possibly two unidentified young men and a woman shortly after 11:45 pm on 14 October 2006, which was also overheard by Ms Allen.
Defence Objection
Mr Toohey, who appears on behalf of the accused, objects to the evidence of Mr Bellette on the basis that his evidence is not relevant or probative of anything in this case.
Ms Cannon, who appears on behalf of the Crown, submits that the September argument overheard by Ms Allen, and the early October argument described by Mr Bellette, were in fact one and the same argument. On that basis, Ms Cannon submits that Mr Bellette’s statement provides evidence as to the participants in the September argument overheard by Ms Allen, and thus provides a basis for an inference to be drawn by the jury as to the participants in the argument on 14 October 2006.
Mr Toohey, in response, submits that there is no basis to conclude that the fight described by Mr Bellette in early October was the same incident as the argument Ms Allen describes as having occurred in September. He submits that it is apparent from Mr Bellette’s statement that the fight he was involved in with Mr O’Donnell was not a fight about any girl who might be inside the house, and that it was a physical confrontation.
Ms Cannon relies on the portions of Mr Bellette’s statement where he describes Mr O’Donnell has having said (during the argument) that “his missus was causing him grief” and that Mr Bellette had “fucked his life”, and submits that they resemble the portions of Ms Allen’s statement where she describes the things that were yelled during the September argument. Ms Cannon therefore submits that the similarities between the two witnesses’ accounts would make any observer think Mr Bellette and Ms Allen were actually describing the same argument. With respect, I do not agree. But in any event, the question is whether the jury could come to such a conclusion by a permissible course of reasoning. As the evidence stands, I do not see how they could. Ms Cannon submits that the defence will be putting its case to the jury as follows:
· The argument that Ms Allen overheard in September was an argument about Ms Tanner, which arose between the accused, and possibly David Smart and/or Damien Scott – both of whom arguably had some motive to do harm to Ms Tanner.
· The argument overheard by Ms Allen on 14 October 2006 also involved either David Smart or Damien Scott, arguing with Ms Tanner.
· The argument between Ms Tanner and either David Smart or Damien Scott culminated in Ms Tanner’s death.
Ms Cannon submits that the Crown is entitled to rebut the defence case by putting their case as follows:
· The argument that Ms Allen overheard in September was in fact the same argument described by Mr Bellette, as occurring between him, Mr O’Donnell, and the accused.
· Neither Mr Bellette nor Mr O’Donnell were participants in the argument on 14 October 2006, so Ms Allen must have been mistaken when she stated that she thought the same young male was involved in both arguments.
· Rather, the other individual Ms Allen overheard arguing with Ms Tanner on 14 October 2006 was the accused. In other words, Ms Allen was right about the voice in the two separate arguments being the same, but is wrong about its identity.
I am unable to see how, on the material as it stands, this conclusion would be open to the jury. It needs to be borne in mind that Ms Allen identifies the voice of the accused as taking part in the September argument – she described his voice as “much older”. She has never identified the voice of the accused as taking part in the 14 October 2006 argument. In fact, Ms Allen was asked directly during the committal whether she could identify the voice of the accused as being the voice she overheard on 14 October 2006, and she said she could not.
Conclusion
In my view, if I accept the method of reasoning on which the Crown relies in order to establish the relevance of Mr Bellette’s evidence, I would be permitting the Crown to lead evidence for the purpose of impugning the reliability of another Crown witness, Ms Allen, in order to support the Crown case. I do not consider such an approach to be permissible. In my opinion, and on the material as it presently stands, the occurrence of an argument as described by Mr Bellette is irrelevant and I will not admit it into evidence.
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