R v Spence (Rulings)

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0023

Between:

THE QUEEN
and
HARVEY SPENCE	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 February to 25 March 2015
DATE OF PUBLICATION OF REASONS:	13 July 2015
CASE MAY BE CITED AS:	R v Spence (Rulings)
MEDIUM NEUTRAL CITATION:	[2015] VSC 322	First revision (15 July 2015): paras [79], [81], [100] & [121]

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CRIMINAL LAW – Jury trial – Accused charged with murder – Rulings:
(1) Admissibility of evidence that, some hours before killing, accused called deceased “a dog” and put him into boot of car for a period before releasing him – Evidence admissible as going to motive and animus – Evidence Act 2008 (Vic), s 137;
(2) Application that WR, a major prosecution witness, give evidence via video-link from a remote facility – Risk that witness may come into contact with accused during prisoner movements – Concerns met by assurances of Corrections Victoria – Application refused – Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42E;
(3) Application that TM, another major prosecution witness, give evidence via video-link from remote facility – Concerns that witness, and those protecting or near him, at risk of harm in moving to and from Court – Application granted;
(4) Application by accused to discharge jury without verdict – Deceased’s mother upset during prosecution opening – Application refused;
(5) Admissibility of evidence of NB that AS and MA told him that WR told them he killed deceased (which AS and MA deny hearing from WR, and WR denies saying) – Exceptions to rule against hearsay – Whether NB’s evidence admissible to prove (a) inadequacy of police investigation and/or (b) prior inconsistent statements by AS and MA – Whether, if admitted, NB’s evidence also can go to prove (c) that WR said he killed deceased and (d) that he killed deceased – Whether NB’s evidence nevertheless should be excluded on the basis that its probative value would be substantially outweighed by the danger that it might be misleading or confusing or result in an undue waste of time – Whether NB’s evidence should be confined in its use to purposes (a), (b) and (c) – Whether NB’s evidence should be subject of an unreliability warning – NB’s evidence admitted for purposes (a), (b) and (c), but not (d), and subject to unreliability warning – Evidence Act 2008 (Vic), ss 55, 59, 60, 135, 136 & 165; R v Singh-Bal (1997) 92 A Crim R 397; Lee v The Queen (1998) 195 CLR 594;
(6) Directions on murder by joint criminal enterprise (at common law) – Whether agreement must include a common intention, between accused and perpetrator of killing, to kill or cause really serious injury or whether it is sufficient (a) that the agreement be to commit the acts which caused death and (b) that the accused have, but that the perpetrator need not have, murderous intent at the relevant time – Proof of common murderous intent not required – Osland v The Queen (1998) 197 CLR 316; Likiardopoulos v The Queen (2012) 247 CLR 265; McEwan & Ors v The Queen [2013] VSCA 329.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Rochford QC with Mr N. Hutton	Office of Public Prosecutions
For Mr Spence	Mr J. Desmond	Turnbull Lawyers

HIS HONOUR:

Introduction

Harvey Spence was charged with the murder of Nhan Ngoc Doan at Johnsonville on 6 January 2013. On 25 March 2015, after a five-week trial including four-and-a-half days of deliberations, a jury of twelve found Mr Spence guilty of murder.

Prior to empanelment of the jury and during the running of the trial, I made several rulings.[1] On each occasion, I gave brief ex tempore reasons. In respect of some of those rulings, I indicated I would publish more detailed written reasons at a later time. These are those written reasons.
[1]Last year, I directed that Mr Spence be tried separately from his co-accused Peter Mitchell, who was jointly charged with murder (see R v Spence & Mitchell (Ruling No 1) [2014] VSC 557). Earlier this year, Mr Mitchell pleaded guilty to and was sentenced on a charge of manslaughter (see R v Mitchell [2015] VSC 24).

Prosecution case

The prosecution allegations, as they were understood prior to empanelment of the jury, may be summarized in this way:

Mr Spence and Mr Doan (who was also known as Kevin) were associates in the world of using and trafficking in illicit drugs. In October 2012, the two men argued over drugs. The argument escalated to the point where Mr Spence hit Mr Doan to the face, knocking him off balance and causing his eyebrow to bleed. Mr Doan did not retaliate. Mr Spence accused Mr Doan of stealing from him, and asserted that he had failed to cook “ice” (i.e. methamphetamines) for him as promised.

On 30 December 2012, Mr Spence was arrested while driving another’s car. Inside the car, police found an “ice pipe” and an amount of powder believed to contain methamphetamines. It appears that Mr Spence then came to believe that Mr Doan or another had informed on him to police about his illicit drug activities.

On 6 January 2013, Mr Spence persuaded Mr Doan, Todi Muja and Peter Mitchell to go for what was said to be a drive in the country (from Melbourne). Mr Spence was driving a Holden Calais which belonged to WR, another associate of his in the drug world. Mr Muja sat in the front passenger seat; and Mr Doan and Mr Mitchell sat in the rear seats. Mr Doan was heavily drug-affected. Mr Spence called Mr Doan “a dog”. To Mr Spence’s great annoyance, Mr Doan was also singing and talking constantly. Eventually, Mr Spence put Mr Doan in the boot of the car. But Mr Doan continued to sing. From the front seat, Mr Muja asked Mr Doan whether he was “OK”, to which he replied, “Yeah.”

At about 9:00 or 10:00 a.m., Mr Spence stopped the car in Pakenham at premises belonging to Boris Miletic. Mr Spence opened the boot of the car and said to Mr Miletic, “What do I do with this?” or “Do you want this?” Mr Miletic noticed that Mr Doan was groaning and that he appeared to be drug-affected. He told Mr Spence that it “is dangerous to have someone in the boot”; and said, “What if someone runs up the back of you?” Mr Spence just shrugged, shut the boot and drove off.

At some stage during the trip, Mr Spence stopped the car at a chicken shop. Mr Doan was released from the boot. After that break, Mr Spence allowed Mr Doan to resume his seat in the rear of the car. At another point, Mr Spence took all three passengers’ mobile telephones and placed them on the floor of the car at Mr Muja’s feet.

Upon arrival at WR’s property in Johnsonville (which is near Bairnsdale), Mr Spence went to the house to get keys to a shed on the same property. When he returned, Mr Spence dragged Mr Doan into the shed. Mr Muja followed. Mr Spence put Mr Doan on the floor and held him down with his elbow on his neck. He demanded to know why Mr Doan’s friends were in gaol but that he was not, and accused him of wrecking another person’s life by getting him started on drugs. Mr Muja questioned what Mr Spence was doing and told him to calm down. Mr Spence said he was suspicious of Mr Doan and another. Mr Muja said, “What if it was the other one, man? You can’t fucking do that to him.”

Mr Mitchell then entered the shed and closed the door. He tied Mr Doan’s hands behind his back with tape. Mr Muja told him to take it easy and to “give him a chance to talk”. Mr Spence said, “No, fuck the dog ... .”

At that point, WR entered the shed. He saw Mr Doan lying on his side with his hands and mouth taped up. His eyes were bloodshot and he looked exhausted. WR became concerned that Mr Doan could not breathe. So, using a pair of scissors, he cut the tape over Mr Doan’s mouth. Mr Spence then “freaked out”. Mr Mitchell took tape from a work bench and held Mr Doan’s head while Mr Spence taped his mouth again. Mr Spence said, “This piece of shit done this.” WR asked whether he was sure about these things. Mr Spence and WR then left the shed.

Shortly thereafter, Mr Spence returned holding a rifle. Mr Muja questioned what Mr Spence was doing and said it was stupid. Mr Spence told Mr Muja, “You’re fucking dead too … I’ll blow you, I‘ll blow you off, I’ll blow you up.” Mr Muja said, “Give him a chance, man. Give him a chance, mate. What if he hasn’t done anything to you?” Mr Spence said, “No, the fucking dog and whoever [is?] for him is going down too.” He then told Mr Muja, “Get that fucking plastic bag and put it on his head.” Mr Muja said he did not want to do that. Mr Spence came close to Mr Muja and said, “You’re fucking dead.” Mr Muja then relented, took the bag and put it on Mr Doan’s head, but left it untied at the neck. Mr Spence then told Mr Muja to tie the bag. Mr Muja refused.

Mr Spence then told Mr Mitchell to tie the bag. Mr Mitchell did as he was told, and used the tape to tie the bag around Mr Doan’s neck. Mr Doan was unable to breathe or even scream. He suffocated to death.

Mr Spence said, “He’s dead. Help him.” He then left the shed and returned a short while later. The three men sat down and had a smoke. Mr Spence said, “What’s the point in hiding? We’re all fucked. You know anyway we’re fucked.” Mr Spence and Mr Mitchell then injected themselves with a drug. Mr Mitchell began shaking. Mr Spence said to Mr Muja that, had he not come on the trip, Mr Doan would not have come either. Mr Muja responded, “So, I was just a guinea pig?” Mr Spence said, “He’s a fucking dog.” He pointed the gun at Mr Muja, who then said, “I’ve got a daughter. I’ve got a family.” Mr Mitchell said, “Listen, no body, no crime,” and added, “I’ve done it quite a few times.” Mr Muja said, “Whatever, man.” Mr Spence started laughing and said, “Listen, man, I got to go, but this got to burn … we got to burn … you help him.” Mr Spence then left the shed.

Mr Mitchell then said to Mr Muja, “We’ve got to burn it.” He got a large cardboard box and, with Mr Muja, placed Mr Doan’s body in it and taped it closed. Mr Mitchell again said to Mr Muja, “We’ve got to burn it.” They found a trailer, moved it into the shed, placed the body on it and then placed wood on top, which Mr Mitchell set alight. The fire produced smoke. Mr Muja said, “You’re gonna have the fire [brigade] and the fucking police and everybody here.” Mr Mitchell put out the fire with water.

After Mr Spence left the shed, he went to the house and asked WR if he could borrow some money to buy some marijuana which he could then sell. WR allowed Mr Spence to take about $30,000 from his safe. Mr Spence then returned to the shed.

Mr Spence gave Mr Muja $1,000 in cash and then left the property in WR’s Holden Calais.

At some point, WR left the house and saw a large bonfire in a pit just outside the shed door. He then went to bed.

The next morning, 7 January 2013, Mr Muja and Mr Mitchell left in WR’s Holden utility. Mr Mitchell drove, as Mr Muja did not have a licence. He dropped Mr Muja at a bus stop in Bairnsdale. Mr Muja gave Mr Mitchell $200 for driving him. Mr Mitchell drove around in the ute and eventually returned to Melbourne by train. Mr Muja went to a local hotel and played poker-machines before catching a train to Melbourne. He stayed one night at the flat he and Mr Doan had shared before leaving to spend a night in a hotel in Geelong and then heading to Adelaide.

After Mr Muja and Mr Mitchell had left, WR noticed the partly burnt body. Also at the premises was AC, a 14-year-old boy who had been driven there previously by WR. WR and AC built a bonfire, placed the box containing the body on the bonfire and burnt both until they were reduced to ashes.

Later still, the ashes were put in buckets and removed from the property by two other men – “AS” and “MA”.

On 8 January 2013, Mr Spence had a conversation with Thomas Nguyen at the latter’s home. Mr Spence said the following: He, Mr Doan, Mr Muja and two other people had been down at WR’s place and that someone was now dead. When they arrived there, they were confronted by WR, who had a shot-gun. They were made to put their mobile phones on a table. There was a body in the shed already. There was an argument and his best friend was now dead. They were forced to turn on each other. Mr Muja had been forced at gunpoint by WR to kill Mr Doan. It happened at WR’s house. Mr Doan and been killed, chopped and burned. WR gave Mr Spence $20,000 to buy “weed” and to return the next day.

On 7 February 2013, Mr Spence went to the home of Nicole McLean. He told her he was worried about a friend who was missing and that he was probably next. He asked Ms McLean if she had smelt a body burning before. He said he did not know whether he should go to the police. He said he had been involved in “something bad” and that “it’s head-fucking me”. He said, “I’m involved in someone’s disappearance … the body was burnt … there’s no smell like it – you can smell pork burning, you can smell chicken burning and animals burning, but it’s a smell you will never get over.” He said, “Did I torture him? Yes, I [or we] did. Did he cop it bad? Yes, he did. Did I really want to do it? No. Did I get off on it? Yes.” Ms McLean told him, “If you’re not involved, go to the police,” to which Mr Spence replied, “But I am and maybe they’re looking for me.”

Dylan McNally overheard a conversation between his mother (Nicole McLean) and Mr Spence during which Mr Spence said he had done something really bad, that he would never forget the smell of burnt bodies, that there were others involved and that he had dismembered the body before he burnt it.

During an investigation into an aggravated burglary by WR at Thomas Nguyen’s home committed on 4 February 2013, police received information that suggested Mr Doan had been killed at the Johnsonville property on or about 6 January 2013. Search warrants were executed at those premises subsequently. Police discovered Mr Doan’s blood on the back of the driver’s headrest in the Holden Calais Mr Spence had driven on the day of the killing. In the house, police found inter alia three rifles, two shot-guns and a DVD of Mr Spence’s police interview stemming from his arrest on 30 December 2012. In the shed, police found used duct tape and a damaged iPhone and cover, the latter of which belonged to Mr Doan and had his DNA on it.

Mr Spence was arrested at his home in Footscray on 21 February 2013 and later charged.

Other background information

I should add the following points by way of background:

First, the evidence ultimately given at trial differed in some respects from the foregoing summary.[2]
[2]See the summary of evidence in the reasons for sentence: R v Spence [2015] VSC 321 at [1]-[38].

Secondly, over the last two years, in separate hearings before me, WR and AC each pleaded guilty to and were sentenced on a charge of assisting an offender (by being an accessory after the fact to murder).[3] Each also gave an undertaking to assist the authorities, although only WR was called by the prosecution as a witness in Mr Spence’s trial.
[3]See R v WR [2013] VSC 603 and R v AC [2015] VSC 323.

Thirdly, earlier this year, in another separate hearing before me, Mr Mitchell pleaded guilty to and was sentenced on a charge of manslaughter.[4] He did not give an undertaking to assist the authorities and was not called as a witness in Mr Spence’s trial.
[4]See R v Mitchell [2015] VSC 24.

Fourthly, Mr Muja was not charged with any offence but was called by the prosecution as a witness in Mr Spence’s trial.

Fifthly, neither AS nor MA was charged with any offence but each man ultimately was called by the prosecution as a witness at trial.

Admissibility of evidence that accused placed deceased in boot of car

Application

Prior to empanelment of the jury, Mr Desmond, who appeared for the accused, objected to the admissibility of the evidence that Mr Spence put Mr Doan in the boot of the car. For reasons that follow, I ruled that the evidence was admissible and was not to be excluded pursuant to s 137 of the Evidence Act 2008 (Vic).

Submissions

In his written submissions, Mr Desmond argued inter alia that the evidence was not relevant to or probative of any of the elements of murder; was no more than evidence of a rank propensity for violence; and did not disclose a sufficient temporal connection between the charged event and the alleged killing. He also submitted that such probative value as the evidence might have had was outweighed by the danger of unfair prejudice to the accused, such that it should be excluded pursuant to s 137. He submitted the probative value was low because Mr Muja also described the deceased as laughing and singing before and while he was in the boot, whereas the danger of unfair prejudice was high because the jury may regard the evidence as simply showing a violent tendency by the accused and/or a callous disregard for his welfare.

In his oral submissions, which included the foregoing, Mr Desmond also indicated that he did not dispute the admissibility of the evidence that, while in the car, the accused called the deceased a “dog”. (Nor, for that matter, did he dispute the admissibility of other evidence that the accused, at other stages, called the deceased a “dog”.)

In their written submissions, Mr Rochford and Mr Hutton argued inter alia that the evidence the accused put the deceased in the boot was relevant because it was capable of establishing motive and animus, which in turn went to proof that the accused killed the deceased and with the requisite intent. The prosecution case on motive was that the accused was angry at the deceased because he believed he informed on him to the police about this illicit drug activities – i.e. that he had been a “dog”. The evidence was expected to be that that accused called the deceased a “dog” before he put him in the boot and when interrogating him in the shed, and that he referred to him in the same way soon after the killing occurred. It was submitted that, insofar as the accused may have been singing or the like when in the boot, that was not to the point. Rather, it was the accused’s attitude to the deceased, not the deceased’s perception of what was occurring, that was relevant. In any event, the argument ran, the evidence would be that the deceased was heavily drug-affected, which may well have impaired his perception of events. It was submitted that, while the time between being put in (and released from) the boot and the killing must have been several hours, that did not deny the evidence its probative value, as these events occurred as part of a long trip to Johnsonville at the conclusion of which the deceased was killed. It was submitted that the probative value of the evidence was high, because to put the deceased in the boot of a car in such circumstances was not usual, and suggested at least a callous disregard for him and perhaps an intention to intimidate and belittle him, which in turn was consistent with, and added to, the other evidence of motive and animus. It was submitted that there was no unfair prejudice to the accused or any rank propensity in the evidence. Rather, the evidence went directly to the accused’s attitude towards the deceased in the hours before, and in the trip that led to, his death.

Mr Rochford’s oral submissions were to a similar effect.

Conclusion

Essentially for the reasons advanced by the prosecution, I concluded that the evidence should be admitted. The evidence was capable of going directly to the accused’s attitude towards the deceased in the hours before, and in the trip that led to, and arguably was designed to lead to, his death, which in turn was capable of assisting in establishing motive and animus, which in turn was capable of going to proof that the accused was a party to killing the deceased and with the requisite intent. The evidence was also capable of meshing with the evidence that, when in the car, the accused had called the deceased a “dog”, to which evidence Mr Desmond took no objection. Whether the evidence of putting the deceased in the boot actually revealed animus and/or supported motive, or instead revealed no more than perhaps silly hijinks, would be a matter for the jury to determine.

In my view, the evidence was relevant to a fact or facts in issue; did not disclose rank propensity for violence but was capable of going to animus and motive; was capable of disclosing a sufficient temporal connection between the event and the alleged killing to render it probative of facts in issue; and its probative value was not outweighed by the danger of unfair prejudice to the accused. Thus my ruling that the evidence was admissible and was not to be excluded pursuant to s 137.

Application that WR give evidence via remote facility

Application

Prior to empanelment of the jury, Mr Rochford made application, pursuant to s 42E(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), for a direction that WR give evidence via an audio visual link from a remote facility, namely the prison at which WR was being held. Mr Desmond opposed the application. For reasons that follow, I refused the application.

The basis for the application was a concern that, since WR was a serving prisoner and the accused was in custody, the expected prisoner movement arrangements were such that WR and the accused might be brought to the Court together on the same prison van and, when here at the Court, would be held in same block of cells, thereby creating a risk that they (and/or WR and other prisoners) might come into contact with each other which, in turn, courted the risk that WR might be intimidated. The context, of course, is that WR was a co-accused who had turned Queen’s evidence and implicated the accused. As Mr Rochford pointed out, experience shows that such witnesses are sometimes the object of ridicule and intimidation, or even worse, from other prisoners. Thus, the submission ran, while the accused and WR were housed at separate prisons, the risk that the accused and/or other prisoners might come into contact with WR when travelling to and from the Court, or in the cells at the Court, would give rise to a risk of intimidation in this case.

The legislation

The relevant legislative provisions are ss 42E and 42G. Section 42E provides as follows:

(1) Subject to section 42F and to any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.
(2) A court must not make a direction under subsection (1) unless it is satisfied that the technical requirements specified in section 42G are met, or can reasonably be met, in the case of the particular link.
(3) The court may, at any time in the course of a proceeding, vary or revoke a direction under subsection (1) either on its own initiative or on the application of a party to the proceeding.
(4) Without limiting subsection (3), circumstances in which a court may vary or revoke a direction under subsection (1) include the failure of the link to which the direction relates.
(5) Each party to a proceeding may address the court in respect of the making, variation or revocation of a direction under subsection (1).

Section 42G provides as follows:

(1) The technical requirements for an audio visual link are as follows:
(a)both the court point and the remote point are equipped with facilities that—
(i)enable all appropriate persons at the court point to see and hear the person appearing before the court or giving the evidence or making the submission; and
(ii)enable all appropriate persons at the remote point to see and hear appropriate persons at the court point; and

(b)any requirements prescribed by rules of court for or with respect to—
(i)the form of audio visual link;
(ii)the equipment, or class of equipment, used to establish the link;
(iii)the layout of cameras;
(iv)the standard, or speed, of transmission;
(v)the quality of communication;
(vi)any other matter relating to the link;

(c) any requirements imposed by the presiding judge or magistrate.

(2) The technical requirements for an audio link are as follows:
(a)both the court point and the remote point are equipped with facilities that—
(i)enable all appropriate persons at the court point to hear the person appearing before the court or giving the evidence or making the submission; and
(ii)enable all appropriate persons at the remote point to hear appropriate persons at the court point; and

(b)any requirements prescribed by rules of court for or with respect to—
(i)the form of audio link;
(ii)the equipment, or class of equipment, used to establish the link;
(iii)the standard, or speed, of transmission;
(iv)the quality of communication;
(v)any other matter relating to the link; and

(c)any requirements imposed by the presiding judge or magistrate.

(3) Requirements imposed by the presiding judge or magistrate under subsection (1)(c) or (2)(c) must not be inconsistent with any provision made by this Part or any rules of court.

Principles

Both parties accepted that the principles concerning applications of this nature were accurately summarized by Kaye J in R v Cox & Ors (Ruling No 6) [2005] VSC 364. Omitting footnotes, his Honour said this:[5]
[5]R v Cox & Ors (Ruling No 6) [2005] VSC 364 at [7].

(1) The question for the court is whether it is in the interests of justice that an order be made under s 42E.
(2) In considering that question, the right of the accused to a fair trial is paramount.
(3) It does not follow that, because the accused may sustain some forensic disadvantage by reason of an order under s 42E, such an order should not be made. As Brooking J observed in a different context in Jarvie v Magistrates’ Court of Victoria,[6] a “ ... fair trial does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused”.
(4) The right of an accused to confront, in person, those who testify against him or her is a fundamental right in our criminal justice system.
(5) However, as Redlich J observed in Goldman,[7] that right, while fundamental, is not an absolute right at common law. Section 42E is a further qualification of that right in appropriate circumstances.
(6) The question whether it is in the interests of justice to make an order under s 42E must be determined by balancing, on the one hand, the interests of the accused, and, on the other hand, the public interest in the ability of witnesses to give evidence in significant criminal trials without thereby occasioning danger to themselves or to other members of the community.
(7) Nonetheless a court should not make an order under s 42E where to do so would unduly prejudice the right of an accused person to a fair trial. For, as I have observed, that right must be paramount.

[6]Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84 at 90.

[7]R v Goldman [2004] VSC 165 at [23]-[25].

Evidence

In order to assist the Court, Ms Coombes appeared on behalf of Corrections Victoria, who are responsible for, inter alia, the movement of prisoners and other persons awaiting trial between the prisons and the courts. She made inquiries with the relevant persons and was able to give the Court information on instructions. Both parties were content for me to act on that information, rather than to have evidence in the more usual way.

Ms Coombes ultimately advised that, when here at the Court, WR would be housed in the Court of Appeal’s cells while Mr Spence would be housed in this Court’s cells. As for transport to and from the Court, she advised that Corrections would give clear instructions to the transport provider that WR must travel separately from the accused and any known associates; that similar arrangements had been effective in other cases in the past; and that it was anticipated that those arrangements would be effective in the present case. She also advised, however, that her instructions were that “no absolute guarantee could be given” because “mistakes occur”, particularly when van numbers are limited. After further instructions were sought, Ms Coombes advised that Corrections, through the Assistant Commissioner for Sentence Management, “guarantee[d] that [WR] and Mr Spence [would not] be put in the same van”.

In light of the assurances by Corrections that WR and Mr Spence would not be put on the same van, and that they would be housed in cells at different locations here at the Court, Mr Rochford conceded that his application was not as strong as he had anticipated it would be. However, he maintained his application based on a concern that there was no guarantee that WR would not end up on a van with other prisoners, possibly including those connected with the accused, with the resultant risk of intimidation. Added to that was the fact, which I accepted, that WR had been assaulted previously when in custody, apparently as a result of his perceived informer status.

Conclusion

Given Corrections’ assurances, I concluded that there was an insufficient basis for a direction that WR give his evidence via a remote facility instead of in the Court in the usual way. I accepted the assurances that WR and the accused would be housed in cells at different locations at the Court and that they would not travel to and from the Court on the same van. While there is always a risk that the best laid plans will go astray, Ms Coombes was told, and I also accepted, that Corrections would give clear instructions to the transport provider that WR must travel separately not only from the accused but also from any known associates. Further, while there was a possibility that WR could end up in a prison van with other prisoners, he would be with other prisoners overnight at the prison in any event. As unfortunate as it is that experience shows there is a risk that other prisoners might seek to intimidate, or even harm, a person in WR’s position, that is one of the harsh realities of being a witness for the prosecution when also in gaol. Such risk as there may have been was not, on the material before me in this case, at a level that would justify the making of an order under s 42E. Put another way, balancing the considerations to which Kaye J referred in R v Cox & Ors (Ruling No 6), I was satisfied that it would not have been in the interests of justice to make such an order in respect of WR.

In those circumstances, it became unnecessary to consider, pursuant to s 42E(2), whether the facilities available for a video-link between the Court and the prison at which WR was housed were adequate.

Application that Mr Muja give evidence via remote facility

Application

Prior to empanelment of the jury, Mr Rochford also applied, pursuant to s 42E(1), for a direction that Mr Muja give evidence via a video-link from a remote facility at an undisclosed location. The application was opposed by Mr Desmond. For reasons that follow, I granted the application.

Evidence

In support of the application, I heard viva voce evidence from Detective Senior Constable Paul Bubb and Mr Muja.

Detective Bubb gave the following evidence: Prior to 2010, Mr Muja was the Sergeant-at-Arms of a South Australian chapter of “The Bandidos”, an outlaw motorcycle gang. The Bandidos’ code of conduct included a prohibition on assisting police in any way. A sergeant-at-arms has the role of enforcer of discipline in such a gang. On 9 January 2015, Mr Muja advised Detective Bubb that he had learned that transcript of his evidence at the committal hearing in this case had been circulating amongst persons associated with The Bandidos in South Australia. Mr Muja advised he believed his life was in real danger. Mr Muja’s solicitor advised Detective Bubb that he did not believe his client’s life was at great risk. Detective Bubb disagreed. He was of the opinion that Mr Muja, as a former officer bearer in such a gang, was at a very serious risk of physical harm resulting from reprisals for breaking the gang’s code of conduct. He was of the view that The Bandidos in Victoria would have access to high calibre automatic weapons given that such weaponry had been found on the gang’s premises in recent years. Further, given the logistics involved in moving Mr Muja to and from the Court, Detective Bubb was of the opinion that the risk of harm extended to those involved in transporting Mr Muja and anyone else nearby, particularly when, as here, the witness was expected to give evidence over some days and his movements in and out of Court could be monitored readily by almost anyone, including ne’er-do-wells. On the other hand, the same risks would not apply were Mr Muja to give evidence via a remote facility from an undisclosed location.

Mr Muja gave the following evidence (via video-link from a remote and undisclosed location): He was advised by his solicitor and his girlfriend that transcript of his evidence was circulating amongst those connected with bikie gangs in South Australia, including his own previous club. He was very concerned about giving evidence in the Court, particularly given the presence of The Bandidos in Victoria, and the risks it presented for his life and the lives of his daughter and his girlfriend, the latter of whom had already received information that their safety was threatened.

In addition to hearing the evidence of Mr Muja via video-link from a remote location, I also had counsel test the facilities in order to determine whether they might meet the technical requirements set out in s 42G.

Submissions

Mr Rochford submitted that, in circumstances where the evidence disclosed such a significant risk of danger to the witness and those who would be near him in moving to and from the Court, and where the testing showed the technical requirements under s 42G were met, the interests of the accused in facing his accuser were outweighed, such that it was in the interests of justice to grant the application.

Mr Desmond submitted that the evidence as to the risk of harm was speculative. He submitted further that there would be difficulty in cross-examining the witness via video-link in this case, given the imperfections in transmission and the difficulty in the witness and the jury simultaneously observing the DVDs he wished to play, while the witness was also capable of being observed by the jury. He submitted that the evidence was not such as to justify a departure from the fundamental right of the accused to confront his accuser in the usual way, particularly when his accuser was a witness as important as Mr Muja.

Conclusion

I accepted the evidence of Detective Bubb and Mr Muja. In particular, I was satisfied that Mr Muja, as the former Sergeant-of-Arms of a chapter of an outlaw motorcycle gang, was at a significant risk of physical harm, or worse, resulting from reprisals for breaking the gang’s code of conduct, and that that risk was rendered all the greater in circumstances where those connected with the gang had copies of the transcript of Mr Muja’s evidence at the committal hearing. I also accepted the evidence that the resulting risk extended to those who would be involved in transporting Mr Muja to and from the Court, and to those nearby.

Finally, I also accepted that, while having a witness on a screen is not a perfect substitute for seeing and hearing a witness present in the flesh, and indeed that the slight lag between the sound and vision being delivered at one end and received at the other sometimes impeded communication to some extent, the facilities overall were adequate in this case. In fact, the facilities were such that the jury could see and hear the witness on one screen while seeing and hearing a DVD counsel wished to play on another screen just beside it, and while the witness was able at his remote location to see and hear the same DVD on one screen and the Court room on another screen just beside it. In some ways, that was a more effective system than would have obtained had the witness been in the Court, because the layout of the Court was such that it would be difficult to observe both the witness and the DVD at the same time and would require the witness to turn with his side to the jury to observe the DVD screen.

In those circumstances, I was satisfied that the making of an order under s 42G(1) in respect of Mr Muja was in the interests of justice, despite the fact that that would involve denying the accused the right to confront, in the usual way, the witness likely to be regarded as the most important witness in the case.

At the time of making this ruling, I also indicated that my order could be revisited at any stage if, for example, the technical equipment failed to perform as expected. As it happened, there were some problems with the quality of the transmission of the video-link during Mr Muja’s evidence, but they were eventually remedied.

Application to discharge jury based on distress of mother of deceased during opening

Application

Following Mr Rochford’s opening address, Mr Desmond made application that the jury be discharged without verdict. The basis for the application was that the deceased’s mother, Ms Ngo, who was sitting opposite the jury in the Court, was said to be visibly upset throughout the prosecutor’s opening address. Mr Rochford opposed the application. For reasons that follow, I refused the application.

Submissions

Mr Desmond could not see Ms Ngo at the relevant time, as he had his back to her, but his instructions were that she had been crying throughout the address. He submitted that there was a high degree of need to discharge the jury because there was an unacceptable risk that one or more of the jury would have noticed Ms Ngo’s distress and that in turn the sympathy they may feel for her would intrude into their consideration of the case.

Mr Rochford opposed the application. While he too was unable to see Ms Ngo, he accepted, on instructions, that there were times during his address when she was visibly upset but disputed that this was apparent throughout the address. Mr Rochford suggested that he could have Ms Ngo told that, if she felt she was going to become emotional again, she might remove herself from the Court. He submitted, however, there was not the high degree of need required to discharge the jury. The jury had been instructed during the preliminary directions that they were to exclude any feelings of sympathy from their consideration of the case, and they should be expected to abide by that direction.

Conclusion

As I indicated to counsel during submissions, I happened to look in Ms Ngo’s direction on occasions during the opening address but did not notice her to be upset. However, given the observations of others, which I accepted, I proceeded on the basis that she was visibly upset during the address and that one or more on the jury might have noticed.

Thus, the question became whether, on the assumption that one or more on the jury noticed that Ms Ngo was visibly upset during the opening address, their consideration of the case might be affected such that there was a high degree of need to discharge the jury.

As Mr Rochford pointed out, during preliminary directions given only the previous day, I had instructed the jury that they must put aside any feelings of sympathy they might have for Mr Doan or his family or friends. I had also instructed them that their task is an intellectual one – a task summed up by the notion that they must use their heads, not their hearts. Juries across the State are given similar instructions every day. Such an instruction would be repeated later during my charge. Further, the jurors in this case, as in every other case tried in this State, each swore or affirmed faithfully and impartially to try the issues between the Crown and the accused in relation to the charge brought against him and to give a true verdict according to the evidence. There is no reason to think there is any risk the jury would ignore my instruction, or the oath or affirmation they took, and instead decide the case, partly or wholly, based on sympathy for Ms Ngo.

In my view, that Ms Ngo might be visibly upset when hearing the detail of the prosecution case outlined was entirely understandable in her particular circumstances. On the prosecution case, her son was murdered in horrible circumstances, his body was burnt to ashes and not even his ashes have been recovered. There was no dispute from the accused that Mr Doan had been murdered. The principal issue to be tried was whether he was complicit in that murder. I formed the view that the jury, as reasonable persons who had heard my directions, would understand Ms Ngo’s distress but put it out of their minds, consistently with the task they swore or affirmed to undertake.

Accordingly, I concluded that there was no high degree of need to discharge the jury.

Admissibility of evidence of Mr Bird

Introduction

Prior to empanelment of the jury and during the course of the trial, questions arose as to the admissibility of the evidence of Nathan Bird. He made a written statement containing accounts of AS and MA to him both of their involvement with WR in dealing with Mr Doan’s body and of things WR told them, including that he killed Mr Doan. The questions raised concerned inter alia the scope of ss 60 and 136 of the Evidence Act to allow hearsay evidence to be admitted and to limit its use.

In order to explain the issues, and their resolution, it will be necessary first to outline some of the things police were told, or not told, by WR, AS, MA and Christopher Hartshorn before receiving a statement from Mr Bird, and then the evidence given by Mr Bird, AS and MA on Basha inquiries.

WR’s statement

On 3 July 2013, WR told police that he and AC burnt Mr Doan’s body to ashes outside his shed in Johnsonville. WR said that, at a later stage, when AS, MA and another were at his place to assist in removing some hydroponic equipment from his shed, he told them what had happened to Mr Doan. They then cleaned up for him by putting the ashes into buckets and hosing out the trailer the body had been in earlier. They told him they would take the ashes down to the river, which he understood to be the Tambo River.

MA’s police interview

Armed with this information, on 10 July 2013, police interviewed MA. When questioned about WR’s allegations, MA exercised his right to silence and made no comment.

AS’s police interview

The next day, on 11 July 2013, police interviewed AS. He admitted knowing WR and going to his property with MA, but either denied or made no comment about the allegation that he was involved in the disposal of ashes at that property. Police seized AS’s car for analysis but found nothing of interest.

Mr Hartshorn’s statement

On 5 August 2013, police received a written statement from Christopher Hartshorn. He said that MA and another person called “Rob” (or “Wok Wok”) separately told him that they and AS went to another’s place to clean up “a mess”. MA said that “all he did was sit in the lounge room and talk to the guy who did it to calm him down”. Rob said he was shown part of a burnt hand in a bucket. After police had interviewed AS and seized his car, AS told Mr Hartshorn that WR, whom he had known as a “big syndicate guy”, had invited him to his property. When there, WR asked him to “clean up a mess”. WR, said AS, was now in gaol doing 20 years for murder. Later, Rob told him that AS was the only one who knew where the body might be. On another occasion, MA, in response to a suggestion that they should go fishing in Johnsonville, said, “No, we will be forgetting about Johnsonville.”

Mr Bird’s statement

Following the committal hearing, on 29 November 2014, Mr Bird came forward to police and made a written statement. Mr Bird said that MA lived in a caravan at the back of his house from about December 2013. During that period, MA’s friend AS would visit. During those visits, MA and AS “bragg[ed] … about how they got rid of a body and assisted a cannabis grower from Johnsonville”. More particularly, Mr Bird said this:

[MA and AS] told me on a number of occasions all about this. Both of them told me how an Asian bloke who they said was a Triad disappeared from Melbourne. They said that the gentleman in Johnsonville and the Triad had had a falling out over a deal and this guy from Johnsonville had knocked this bloke off and cut him up into pieces the size of twenty and fifty cent pieces. [They] said this bloke from Johnsonville had called them down to his property and they picked up the pieces of the Triad bloke, put him into twenty litre buckets and took him somewhere and burnt the pieces on a barbeque. The Triad was killed in Johnsonville but I’m not sure if it was at or away from the bloke’s house. They laughed that the police would not have found any evidence in [AS’s] car as they had put lids on the twenty litre buckets and had put plastic down in the boot of [AS’s] car. I tried to get out of [MA] where they took the remains of the Triad but he kept his mouth shut and never spoke about the location. [AS] never mentioned the location either.

[They] both told me on a number of occasions how they were responsible for the removal and destruction of the body. The idea of cutting up the body into such small pieces was an attempt to get rid of as much proof as possible. The bloke from Johnsonville had helped them pick up the pieces but [they] were responsible for getting rid of it. There was never any mention of him being with them when they burnt the body off.

Basha inquiries

Prior to empanelment of the jury, Mr Desmond indicated that he wished to adduce evidence from Mr Bird to the effect that AS and MA told him that WR had told them that he killed Mr Doan. Mr Rochford advised that he had not intended to call Mr Bird, AS or MA at trial as it appeared they could give no admissible evidence and were unnecessary to the prosecution case against Mr Spence. Mr Desmond made it clear that, in cross-examination, he would be suggesting to WR that he killed Mr Doan and had told AS and MA just that. He foreshadowed that there may be an argument as to the admissibility of Mr Bird’s evidence pursuant to s 60 of the Evidence Act. He submitted that, while AS and MA had not admitted hearing, doing or saying the things Mr Bird relayed in his statement, there should be a Basha inquiry in respect of each of those three witnesses before determining whether any of them could give admissible evidence before a jury. I agreed. Mr Rochford, as a matter of fairness, then called each of those witnesses on a Basha inquiry.

On the Basha inquiry, Mr Bird confirmed the truth of his statement. He said inter alia that, as well as the word “knocked”, sometimes MA and AS used the word “killed”, when speaking of what the man from Johnsonville did to the other man, “the Triad”. Plainly, the man from Johnsonville is WR and “the Triad” was Mr Doan. Thus, in context, it can be taken that the substance of Mr Bird’s evidence was that AS and MA told him that WR told them that he killed Mr Doan.

AS admitted going to WR’s property at Johnsonville and knowing MA, but denied cleaning up or disposing of ashes, hearing WR admit to killing anyone, telling Mr Bird any such thing or even knowing Mr Bird (despite being shown a photograph of him). Initially, he denied knowing Mr Hartshorn but subsequently admitted he was his former girlfriend’s father.

MA admitted going to WR’s property at Johnsonville and knowing AS and Mr Bird, but denied cleaning up or disposing of ashes, hearing WR admit to killing anyone or telling Mr Bird any such thing. He said AS might have said something like that to Mr Bird, but he was not sure. He admitted that he and AS removed some cannabis cultivation equipment from WR’s property. He said AS might have mentioned helping get rid of a body that had been cut up and put into 20-litre buckets, and that the man from Johnsonville had “knocked” a fellow and cut him up into pieces, but he (MA) had nothing to do with it and did not recall WR telling him anything like that.

Submissions

Mr Desmond submitted that Mr Bird’s evidence – to the effect that AS and MA told him that WR told them he killed Mr Doan – was admissible. He submitted that s 60 of the Evidence Act allowed that the evidence, while hearsay on its face, was admissible for two particular non-hearsay purposes; and that, once admitted for a non-hearsay purpose, the evidence was also admissible for hearsay purposes.

The first non-hearsay purpose was to show that the police investigation was skewed or biased. Mr Desmond’s argument was that, despite having information from Mr Bird that WR had admitted killing Mr Doan, the police had failed to investigate any further the possibility that WR, not Mr Spence, was responsible for killing Mr Doan. For example, police had not gone back to WR, AS and MA and confronted them with Mr Bird’s allegations in his statement. This failure, it was said, was capable of showing that the investigation was skewed or biased.

The second non-hearsay purpose, submitted Mr Desmond, was that, if AS and MA denied telling Mr Bird that WR told them he killed Mr Doan, Mr Bird’s evidence could prove prior inconsistent statements against AS and MA – namely, that they had said that to Mr Bird.

In turn, he would seek to rely on ss 60(1) and (2) of the Evidence Act to admit Mr Bird’s evidence as proof that WR did in fact say that he killed Mr Doan, and therefore as a prior inconsistent statement relevant to assessing WR’s credit, but not as proof that he did in fact kill him.

The manner in which all of that was expected to play itself out was as follows: If, as expected, WR denied killing Mr Doan, counsel would suggest he had told MA and/or AS that he had done so.[8] If WR denied that, counsel would seek to prove the contrary by asking MA and/or AS whether WR had told them he killed Mr Doan.[9] If, as expected, they denied hearing WR say any such thing, Mr Desmond would put to each witness Mr Bird’s account as a prior inconsistent statement. If they denied telling Mr Bird what he alleges, counsel would prove the prior inconsistent statements by eliciting evidence from Mr Bird.[10]
[8]Cross-examination as to credibility would be allowed pursuant to s 103 of the Evidence Act 2008 (Vic).
[9]Section 106 of the Evidence Act 2008 (Vic) would allow such an approach in this case.
[10]Again, ss 103 and 106 of the Evidence Act 2008 (Vic) would allow such an approach in this case.

In Mr Desmond’s submission, whether Mr Bird’s evidence was admissible for one non-hearsay purpose (showing the police investigation was skewed) or another (proving a prior inconsistent statement by AS or MA), once admitted, ss 60(1) and (2) would allow the evidence to be used for the hearsay purpose of proving that WR did in fact say that he killed Mr Doan, which in turn could go to his credit in denying saying so, in denying that he was responsible for the killing and to his credit generally. He expressly conceded, however, that, pursuant to s 136, the evidence should be limited in its use in those ways and should not be allowed for another hearsay purpose, namely as proof that WR killed Mr Doan. He also conceded that there may need to be a warning as to the reliability of the evidence, pursuant to s 165. Counsel referred to and relied on R v Singh-Bal (1997) 92 A Crim R 397 and Lee v The Queen (1998) 195 CLR 594.

Mr Rochford accepted that what otherwise would be hearsay evidence capable of showing that an investigation might have been skewed or biased could be admitted for that non-hearsay purpose, but submitted that in this case the evidence was not capable of proving any such thing. He submitted that, despite receiving Mr Bird’s statement, there was nothing more for police to do, as both AS and MA had either denied or not admitted any involvement in the disposal of Mr Doan’s remains. They had now confirmed those denials, and their denial of hearing WR admit to killing Mr Doan, in evidence on the Basha inquiries. Further, in so far as AS and MA were said to have said that the body had been cut into coin-size pieces, this was inconsistent with the evidence police had gathered about the manner in which the deceased had been disposed of.[11]
[11]Later in the trial, the prosecution served on the defence and filed with the Court a written statement by Detective Senior Sergeant Ron Iddles, a policeman of vast experience, about inter alia the unlikelihood of cutting a body into coin-size pieces. Subsequently, D/S/Sgt Iddles gave that and other evidence before the jury.

As to the second non-hearsay basis for admissibility, Mr Rochford submitted that, while Mr Desmond was entitled to suggest to WR that he had told MA and AS he killed Mr Doan, if WR denied it, the accused would be bound by that answer. He submitted that, in those circumstances, proof that AS and/or MA told Mr Bird they heard WR say he killed Mr Doan could go only to AS and/or MA’s credit and not to prove that WR did say that he killed Mr Doan, nor to WR’s credit. He submitted that this whole exercise amounted to an impermissible attempt by the accused to elicit an alleged third party confession on a double-hearsay basis.

In the alternative, and relying on s 135, Mr Rochford submitted that the Court should refuse to admit Mr Bird’s evidence, if relevant, because its probative value was substantially outweighed by the danger that the evidence might be misleading or confusing or result in an undue waste of time. Mr Bird’s proposed evidence was, at best, remotely connected to the criticism of the police investigation and therefore would be of very low probative value. Further, if AS and MA were called and, as expected, gave evidence denying hearing WR say he killed Mr Doan, again, Mr Bird’s evidence would be of low probative value. There would be undue time taken in calling Mr Bird, AS and MA and in establishing the background to the police investigation. Given, inter alia, the double-hearsay assertion that WR said he killed Mr Doan, the Court would be required to give complicated and potentially confusing directions to the jury about how the evidence may, and may not, be used.

In the further alternative, Mr Rochford submitted that, if admitted, the evidence should be confined in its use, pursuant to s 136, and the subject of an unreliability warning, pursuant to s 165. As I understood the submission, it was that the evidence should be confined in its use to the non-hearsay purposes for its admission; but that, if it was to be allowed to go further, it should be confined to the hearsay purpose for which Mr Desmond contended, namely as proof that WR said that he killed Mr Doan, and therefore as a prior inconsistent statement relevant to assessing his credit, but not as proof that he did in fact kill him.

Conclusions

For reasons that follow, I accepted that the evidence of Mr Bird – to the effect that AS and MA told him that WR said he killed Mr Doan – was admissible for the two non-hearsay purposes relied on by Mr Desmond and, further, for the limited hearsay purpose for which he contended, pursuant to ss 60(1) and (2). I also accepted the submissions and concessions that the evidence should be confined in its use, pursuant to s 136, and the subject of an unreliability warning, pursuant to s 165.

Section 60 of the Evidence Act provides as follows:

60 Exception – evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).
Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
Note: The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay – see section 82.

Section 136 of the Evidence Act provides that “[t]he court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might … (a) be unfairly prejudicial to a party or (b) be misleading or confusing”.

As to the first non-hearsay purpose advanced, in my view, it was open to the accused to elicit Mr Bird’s evidence of what he was told by AS and MA, along with evidence of the failure of police to put that information to WR, AS or MA and otherwise subsequently to investigate Mr Bird’s claims, in an attempt to show that the police investigation in this case was skewed or biased.[12] It was not to the point that the prosecution had made AS and MA available on a Basha inquiry. To be sure, that was the fair and proper thing for a prosecutor to do, but it does not deny the evidence that police conducted no further investigation after they received Mr Bird’s statement. Nor does it deny the point to say that police had other information suggesting that the accounts AS and MA had allegedly given to Mr Bird, with respect to the treatment or disposal of Mr Doan’s body, were false or exaggerated. On the contrary, that they allegedly gave a version different in some respects from that which had been given by WR on this particular issue only went to emphasize the point that failing to confront both them and WR with what they were alleged to have said was arguably demonstrative of a closed mind. WR, obviously enough, was to be a very important witness against Mr Spence, and material matters that might contradict him, a juror might think, should have been raised with him by police.
[12]I should add that, while I am not entirely sure that the notion that a police investigation might have been skewed or biased invariably will be a relevant consideration for a jury in a criminal trial, in circumstances where a Senior Crown Prosecutor of Mr Rochford’s experience was prepared to accept that that could be a relevant consideration in a case like the present, and recognizing that frequently in criminal trials in this State evidence is admitted in the name of such a purpose, I considered it appropriate, in the present case, that I should act on the premise that indeed it can be a relevant consideration.

Next, I was satisfied that the evidence of Mr Bird would be admissible to prove a prior inconsistent statement by AS and/or MA should they fail to admit telling Mr Bird that they heard WR say that he killed Mr Doan, and assuming WR had already denied saying just that. In my view, ss 60(1) and (2) allowed Mr Bird’s evidence of AS and/or MA’s representations that WR had told them that he killed Mr Doan to go to proof that WR did in fact say that to AS and/or MA, and therefore to WR’s credit in denying saying so and in denying he was responsible for the killing, and to his credit generally.

The remarks of Hunt CJ at CL in R v Singh-Bal (1997) 92 A Crim R 397 lend some support to that line of reasoning. In that case, the trial judge had admitted evidence from a police officer, Constable Coles, that other police officers had told him of admissions made by the accused. The evidence, which was characterized as a prior consistent statement, was admitted to rebut a suggestion of recent invention by the police who heard the admission. When dealing with a ground of appeal asserting the judge erred in directing on that issue, Hunt CJ at CL said this:[13]
[13]R v Singh-Bal (1997) 92 A Crim R 397 at 404-405 (footnotes omitted) per Hunt CJ at CL. McInerney J (at 407) and Donovan AJ (at 407) agreed in the reasons of Hunt CJ at CL; and Donovan AJ (at 407-408) made further remarks about the effect of ss 60 and 136.

The complaint made in the appellant’s written submissions is that the direction concerned only the relevance of that evidence [i.e. the prior consistent statement] to the issue of recent invention and that the judge did not direct the jury that it was not relevant to the issue as to whether the appellant did or did not make the admission. Counsel appearing for the appellant on the appeal conceded that that submission was wrong.

It is important, however, to point out that such direction would usually be too favourable to an accused. At common law, it was correct. Previous consistent statements admitted to rebut the suggestion of recent invention, like prior inconsistent statements, were no evidence of the truth of what was stated. Section 60 of the Evidence Act, however, now provides that, once evidence is admitted for a purpose other than to establish the truth of what was said, it now becomes evidence of the truth of what was said – subject, of course, to the power of the trial judge to limit its use in that way pursuant to s 136 where there is a danger that such use might be unfairly prejudicial to a party or misleading or confusing.

Where evidence of the prior consistent statement of a witness has been admitted only to rebut a suggestion of fabrication, and not to establish the truth of what had been said, s 60 operates to make the evidence of what the witness said in that prior consistent statement evidence of the truth of what was said. In the present case, if the judge had not limited the use of the evidence in the way that he did in the summing-up (in effect, pursuant to s 136), what the police officers said to Const. Coles would have established the truth of what they said – namely, that the appellant had made an admission to them.

Four things should be noted: First, while his Honour was there dealing with s 60 of the Evidence Act of New South Wales in the form in which it existed prior to its amendment in the Uniform Evidence Acts following the High Court’s decision in Lee v The Queen (1998) 195 CLR 594, this reasoning would seem to me to remain applicable to the amended form of s 60.

Secondly, it is said that the introduction of s 60(2) was designed to overcome the limitations placed on the scope of the provision by the High Court’s decision in Lee; and the introduction of s 60(3) was designed to preserve the outcome in Lee for other cases.[14] The notes following each sub-section support that interpretation.
[14]See, e.g., S. Odgers, Uniform Evidence Law in Victoria, Lawbook Co. (2010), at [1.3.940].

Thirdly, it is said that the effect of s 60(2) is to ensure that, in general, the provision does apply to second-hand or more remote hearsay.[15] The terms of ss 60(1) and (2) do appear to give those provisions very broad scope for the admission of evidence for a hearsay purpose.
[15]See, e.g., S. Odgers, Uniform Evidence Law in Victoria, Lawbook Co. (2010), at [1.3.940].

Fourthly, the last sentence of the passage of the extract of Hunt CJ at CL’s judgment appears to mean that his Honour was of the view that, absent a limitation imposed pursuant to s 136, Constable Coles’ evidence, if accepted, not only would prove that the other police officers told him about the admission by the accused but also would prove that the accused did in fact make the admission, and could be used to prove the accused’s guilt.

Thus, assume A says that B told him that C told him (B) that he (C) killed D. Putting aside s 60(3), which it will be assumed does not apply in this hypothetical case, and subject to ss 135 and 136, ss 60(1) and (2) allow that A’s evidence may prove not only that C told B he killed D, but also that C killed D.

The present case is not materially different. Mr Bird (the equivalent of A) says that AS and/or MA (the equivalents of B) told him that WR (“C”) told them (“B”) that he killed Mr Doan (“D”). Of course, Mr Rochford made the point that AS and/or MA would be denying they either heard the admission by WR or told Mr Bird they heard it. He submitted that that means there is a gap in proof. But, whatever gap there might be at common law, there is no gap under the Evidence Act because ss 60(1) and (2) allow the gap to be filled by Mr Bird’s evidence. Accordingly, ss 60(1) and (2) are broad enough to allow the evidence of Mr Bird to go to prove that WR told AS and MA that he killed Mr Doan and, further, to prove that WR did in fact kill Mr Doan.

That AS and/or MA would deny hearing the admission and would deny telling Mr Bird about it are among the matters that go to the questions to be considered under ss 135 and 136. But, as to Mr Rochford’s reliance on s 135, I did not accept that the probative value of Mr Bird’s evidence would be substantially outweighed by the danger that the evidence might be misleading or confusing or result in an undue waste of time. The evidence that WR said he killed Mr Doan, while weak because of its double-hearsay nature and even weaker if AS and MA denied it was said, nevertheless was potentially very important to the defence case. Further, while some time would be taken in receiving evidence from Mr Bird, AS and MA, and, if thought necessary, in establishing the background to the police investigation, that could not be said to be an undue amount of time. True it is that the directions explaining how the evidence may, and may not, be used might be difficult, but not so difficult as to be unintelligible to an ordinary juror.

As I said, however, pursuant to s 136, I determined to limit the use of Mr Bird’s evidence in the way contended for by Mr Desmond, and to give the jury a warning, pursuant to s 165, for these reasons:

First, the evidence was weakened by its double-hearsay nature and the failure of AS and MA to admit that WR told them he killed Mr Doan. It struck me that there was a high likelihood that AS and MA were involved in the aftermath of Mr Doan’s killing and removal of his ashes but also that there was a real risk that they had distorted the account they received from WR, and their own involvement, when relating those accounts to others, such as Mr Bird and Mr Hartshorn.

Secondly, while it is perhaps a fine distinction to draw, I accepted that to limit the evidence in the way contended for by Mr Desmond, and accepted in the alternative by Mr Rochford, struck a fair balance between the defence and prosecution positions in the case. I considered that to allow Mr Bird’s evidence to go directly to prove that WR killed Mr Doan might be unfairly prejudicial to the prosecution in circumstances where the evidence was potentially so unreliable. At the same time, I should have thought that the verdict of a jury that accepted or believed it reasonably possible that WR did tell AS and/or MA that he killed Mr Doan would not be affected by what might be thought to be the nuanced distinction between such evidence going, on the one hand, to WR’s credit in denying he killed Mr Doan or in denying he told others he killed Mr Doan, or to his credit generally, and, on the other, such evidence going directly to whether WR killed Mr Doan.

Thirdly, the parties were in a curious position in this case. The prosecution accepted WR’s account generally and of the burning and disposal of the body in particular, including the involvement of AS and MA in the removal of the ashes, yet AS and MA denied any such involvement. Thus, they regarded AS and MA as partly truthful on the assumption that they told Mr Bird of their involvement in this matter but as untruthful in denying any such involvement and in denying that they told Mr Bird about it and yet also untruthful or wrong in telling others that WR had said he killed Mr Doan and in talking about a body being chopped into coin-size pieces. The defence position was similarly complex. Either way, fairness dictated that the evidence of what they allegedly told Mr Bird be before the jury but that there be limitations on the use of that evidence and warnings as to its potential unreliability.

Fourthly, I was influenced by Mr Desmond’s concession that the use of the evidence should be limited to impacting on WR’s credit, and should not go directly to prove that WR killed Mr Doan, and that there should be a warning pursuant to s 165.

Finally, I should add that, in limiting the use of Mr Bird’s evidence in that manner, I was mindful that to admit evidence under ss 60(1) and (2) and then limit its use by exercising the power under s 136 courts the risk of undermining the legislative purpose behind the introduction of provisions like s 60, which amount to a quite radical departure from the common law. As Gleeson CJ and Hayne J said in Papakosmas v The Queen (1999) 196 CLR 297 of a submission that a court which receives evidence of complaint in any criminal case should limit its use under s 136 so that it is not used for a hearsay purpose, such a submission “amount[s] to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded”.[16] McHugh J made the same point in different language in his separate judgment, when he said that to use s 136 in a general fashion denying the hearsay use of evidence admitted pursuant to other provisions would be “to subvert the intention of the legislature”.[17] But I do not think it could be said that the legislative purpose behind ss 60(1) and (2) would be subverted by my ruling in the present case. After all, Mr Bird’s evidence was allowed to go to the hearsay purpose of establishing the truth of what MA and AS were alleged to have said – that WR said he killed Mr Doan, but not to the fact that he killed Mr Doan.
[16]Papakosmas v The Queen (1999) 196 CLR 297 at [38]-[39].
[17]Papakosmas v The Queen (1999) 196 CLR 297 at [96]-[97].

Topic expanded

Later in the case, the parties agreed that, consistently with the foregoing ruling, other evidence elicited from Mr Bird – namely, to the effect that AS and MA told him that WR said there was a falling out between him and Mr Doan over drugs – should be treated in the same way.

Further, the parties also agreed that evidence from both Mr Bird and Mr Hartshorn (whose statement and committal evidence was read to the jury by agreement) that AS and MA had told them about being involved in events at WR’s premises could be used as evidence of prior inconsistent statements going to their credit and/or reliability and as evidencing the true state of affairs, which in turn could impact on WR’s credibility.

Directions on joint criminal enterprise

Introduction

While, initially, Mr Rochford was minded to put the prosecution case against Mr Spence differently, ultimately, the prosecution case was put as murder by a joint criminal enterprise with Mr Mitchell.

In particular, the prosecution case, which was reflected in the directions I ultimately gave the jury, was as follows:

1) Mr Spence and Mr Mitchell agreed to pursue a joint criminal enterprise, namely to suffocate Mr Doan (by tying the plastic bag around his neck while his hands and mouth were bound), and that the agreement remained in existence when the offence of murder was committed.

2) In accordance with the agreement, Mr Mitchell killed Mr Doan by a conscious, voluntary and deliberate act (by tying the bag around his neck, when debilitated, and thereby causing him to suffocate to death).

3) At the time of entering the agreement and while Mr Mitchell performed the act that killed Mr Doan, Mr Spence had an intention to kill or cause really serious injury to Mr Doan and had no lawful justification or excuse (such as self-defence) for such an act.

4) Mr Spence participated in the joint criminal enterprise in some way (in this case, by directing that Mr Doan’s hands and mouth be taped up, by helping Mr Mitchell tape his mouth a second time, by directing Mr Muja to put the plastic bag over Mr Doan’s head and by directing that the bag be tied while Mr Doan was in that vulnerable position).

In the course of discussion about precisely what the prosecution needed to prove in the present case, a question arose as to whether the necessary agreement for the purposes of murder by joint criminal enterprise must include a common intention, between the accused (Mr Spence) and the perpetrator of killing (Mr Mitchell), to kill or cause really serious injury or whether it is sufficient that the agreement be to commit the act which caused death and that the accused have, but that the perpetrator need not have, murderous intent at the relevant time.

For reasons that follow, I ruled that the latter formulation is correct – i.e. it is sufficient in the present case that the agreement between Mr Spence and Mr Mitchell be to commit the act which caused death and that Mr Spence have, but that Mr Mitchell need not have, murderous intent at the relevant time – and directed the jury accordingly and in the manner referred to earlier.

Analysis

In my view, the matter is dealt with conclusively in the judgment of McHugh J in Osland v The Queen (1998) 197 CLR 316. After explaining that the terms “acting in concert” and “joint criminal enterprise” are just different ways of describing the same doctrine[18] and after setting out passages from several authorities,[19] his Honour summarized the law in this way:[20]

Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.

[18]Osland v The Queen (1998) 197 CLR 316 at [73]-[74].

[19]Osland v The Queen (1998) 197 CLR 316 at [72]-[92].

[20]Osland v The Queen (1998) 197 CLR 316 at [93]. Kirby J (at [174]) agreed with the analysis of McHugh J concerning the liability of persons for the acts constituting the crime where those persons are acting in concert and present at the scene with the perpetrator.

It follows from those statements of principle that the alleged actual perpetrator of the killing (such as Mr Mitchell) need not have the mens rea for murder in order that an accused who did not commit that act causing death but who is alleged to have agreed that it be done (the “non-perpetrator”, such as Mr Spence) may be found guilty of murder. Rather, provided all the other elements of joint criminal enterprise are made out, it is enough, for a guilty verdict to be returned against the non-perpetrator who has agreed that the acts which caused death be committed, that only he have murderous intent.

Mr Desmond, however, submitted that two more recent cases cast doubt on that conclusion. First, he pointed to a passage in the joint judgment in Likiardopoulos v The Queen (2012) 247 CLR 265. When setting out one of the ways in which the case had been put at trial, Gummow, Hayne, Crennan, Kiefel and Bell JJ said this:[21]

On the principal case, the appellant was liable for the murder of the deceased under the principle of criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant’s participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it.

[21]Likiardopoulos v The Queen (2012) 247 CLR 265 at [19] (footnotes omitted; emphasis added).

Mr Desmond’s submission was that there would be no need to prove that the appellant, said to be a non-perpetrator of the killing, was a party to an understanding or arrangement with the perpetrators of the killing[22] to inflict really serious injury on the deceased unless the law required proof of a common intention among them to inflict really serious injury. Thus, in his submission, their Honours implicitly endorsed the view that there must be a common murderous intention between a non-perpetrator and the perpetrator of the act causing death in order that murder by joint criminal enterprise be established against the non-perpetrator.
[22]In the appellant’s trial, it was said that John Likiardopoulos, Aydin and Singh were among the perpetrators of the acts causing the deceased’s death.

Secondly, Mr Desmond pointed to McEwan & Ors v The Queen [2013] VSCA 329. In that case, the Court of Appeal (Redlich and Coghlan JJA and Dixon AJA) considered the jury directions given in a trial where murder by joint criminal enterprise was alleged. Their Honours observed that “[i]t was accepted by the Crown and the other parties to the appeal that proposition (1) of the trial judge’s written directions given to the jury …, though expressed in conventional terms, were too narrow, in that it required the existence of a common intention by the participants”.[23] In the next sentence, their Honours said, “As will appear from the reasons that follow, this is not the occasion to resolve that question.”[24] Mr Desmond fixed on the latter sentence as indicating that that question remains unresolved.
[23]McEwan & Ors v The Queen [2013] VSCA 329 at [34]; see also [58]. The written directions are set out in the judgment at [57].
[24]McEwan & Ors v The Queen [2013] VSCA 329 at [34].

Yet, as Mr Rochford pointed out, in other parts of the judgment, it appears plain that the Court accepted the correctness of the proposition that a common murderous intent is not required. Thus, for example, their Honours said this:[25]

There is no obstacle to a jury finding that two persons who are party to a joint criminal enterprise are guilty of different offences because one of them has a defence that is not available to the other or has a different mens rea or intent. The other party may be guilty of the principal offence if that person has the relevant mens rea, the actus reus being attributed to him by reason of the agreement. It will not matter that another party cannot be convicted of that crime because he has a defence for some reason special to himself or lacks the necessary intent. It is the acts, not the crime, committed by another who was party to the joint enterprise, or the mens rea of that party, which is attributed to the other persons participating in the joint enterprise. The jury must therefore separately assess the state of mind of each accused who is party to the joint criminal enterprise. The jury may find that parties to the joint enterprise are guilty of different offences because they have a defence special to themselves or have a different intent.

[25]McEwan & Ors v The Queen [2013] VSCA 329 at [38] (footnotes omitted); see also, e.g., [60], [61] & [72].

As I have said, in my view, the matter is dealt with conclusively in the judgment of McHugh J in Osland v The Queen. I suspect that the way in which the necessary proof was described by the plurality in Likiardopoulos v The Queen merely reflects the way in which the case was run at trial by the Crown rather than an attempt by their Honours to lay down any principle requiring proof of common murderous intent as part of the agreement in cases of murder by joint criminal enterprise. Further, while the Court in McEwan & Ors v The Queen does expressly decline to resolve the question at issue, other parts of the judgment, correctly in my respectful opinion, are consistent with the view that a common murderous intent is not required.

It is for those reasons that I considered I was bound to rule, and did rule, that it was sufficient in the present case that the agreement between Mr Spence and Mr Mitchell be to commit the act which caused death and that Mr Spence have, but that Mr Mitchell need not have, murderous intent at the relevant time. For the same reasons, I directed the jury accordingly and in the manner referred to earlier.

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[2015] VSC 322

13 July 2015