R v Thompson
[2014] ACTSC 276
•22 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Thompson |
Citation: | [2014] ACTSC 276 |
Hearing Dates: | 19 and 22 September 2014 |
DecisionDate: | 22 September 2014 |
Before: | Murrell CJ |
Decision: | Application to exclude evidence refused. Application to vacate trial date refused. |
Category: | Interlocutory application |
Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to exclude evidence – whether prejudicial effect outweighs probative value CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to vacate trial date – counsel availability |
Legislation Cited: | Crimes Act 1900 (ACT) s 34 Criminal Code 2002 (ACT) s 312 Evidence Act 2011 (ACT) ss 135, 137 |
Cases Cited: | Munro v The Queen [2014] ACTCA 11 R v Blick (2000) 111 A Crim R 326 R v XY (2013) 84 NSWLR 363 |
Parties: | The Queen (Crown) Andrew Francis Thompson (Accused) |
Representation: | Counsel Mr S Gill (Crown) Mr J Pappas (Accused) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Ben Aulich & Associates (Accused) | |
File Number(s): | SCC 50 of 2014 |
MURRELL CJ:
The applications
This is an application to exclude evidence under s 137 of the Evidence Act 2011 (ACT) (Evidence Act) and, alternatively, under s 135 of the Evidence Act. The accused seeks to exclude two notes that were found at his premises during a search on 5 November 2013.
There is also an application to vacate the trial date of 1 December 2013.
The accused has pleaded not guilty to committing two offences on 4 November 2013. The first is an offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). It is alleged that he entered the complainant's premises with intent to commit an offence that involved causing harm or threatening to cause harm. The definition of “harm” in the Dictionary to the Criminal Code includes psychological harm. The aggravating feature is having an offensive weapon. The second is an offence of unlawfully confining the complainant contrary to s 34 of the Crimes Act 1900 (ACT).
At the trial, the accused may admit that he attended the premises but he will deny that he had an offensive weapon, that he intended to harm the complainant and that he unlawfully confined her.
The Crown case
The Crown case is that, in about April 2013, the complainant terminated her relationship with the accused. On 9 October 2013, by arrangement, the complainant and the accused met at the Dickson shops. They argued. The complainant made it clear to the accused that she would not resume the relationship.
The complainant will give evidence that on 4 November 2013 she returned to her apartment to find that the accused was inside. He came towards her and pushed her onto a bed. When she screamed, he put a gloved hand over her mouth and placed pressure on her chest. She looked down and saw that he a gun in his hands. He confined her in the unit for about three hours. At one stage, he told her that the gun was for him, not her.
On 5 November 2013, a search warrant was executed at the home of the accused’s father, where the accused resided. A firearm was found. The two notes that are the subject of this application were located in a wardrobe. One was addressed to the parents of the accused. The second was addressed to a friend of the accused. The most relevant material is in the note to the accused's parents. In part, it states:
If you’ve found this letter, then I must have really fucked up. First, let me say I'm so, so, sorry.
The note goes on to say that the accused is tired of life and very unhappy with how his life has turned out. It then reads:
Why I did this. People will think I'm some sort of psycho path, that it was some sort of lover's revenge. That I just couldn't let go. But that's not the case.
When I saw (the complainant) three weeks ago (it was actually dad's birthday dinner when I went off & I'm disgusted in myself for doing it then) it was clear that there was no chance of their ever being anything between us. I was happy to accept it, even though I'd wanted it so much at some point.
It was the personal attack in public that was humiliating. And I just sat there and took it. I put up with so much of her problems and shit before she went overseas and for her to say the things she did that day destroyed what little happiness I had left in my life.
The note goes on to detail the statements made by the complainant. It then says:
I didn't intend to harm her though, just for her to see how damaging breaking someone's [heart/trust] can be.
I cannot decipher whether the word trust or heart is written, so I have included both alternatives.
Applications under ss 135 and 137 of the Evidence Act
An application is made to exclude the evidence under s 137 and, alternatively, under s 135 of the Evidence Act.
Section 137 provides:
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Section 135 provides:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
In relation to s 137, in his submissions the accused has helpfully set out the relevant law, about which there is no dispute. The Court is required to balance the probative value of the evidence against the danger of unfair prejudice to the accused: Munro v The Queen [2014] ACTCA 11. If the probative value of the evidence is outweighed by the danger of unfair prejudice, then there is no residual discretion, and the evidence must be excluded: R v Blick (2000) 111 A Crim R 326.
Probative value of evidence is defined in the dictionary to the Evidence Act as “the extent to which the evidence could rationally affect the assessment of a probability of the existence of a fact in issue”. In R v XY (2013) 84 NSWLR 363 the New South Wales Court of Criminal Appeal held that, when making a determination about probative value under s 137, a court should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case and should consider whether it provides any inference or direct support for a fact in issue which would be available to a reasonable jury considering the proffered evidence.
In relation to any risk of unfair prejudice, the relevant prejudice is not all prejudice. The more probative evidence, the more prejudicial it is. The relevant prejudice is unfair prejudice, for example, the danger that a jury may use the evidence to make a decision on an irrational basis. The reference in s 137 is to the danger of unfair prejudice. It is danger in the sense of risk of unfair prejudice. It is not necessary to establish actual unfair prejudice. In considering whether any danger associated with admitting the evidence can be reduced or eliminated, a court may have regard to mitigating actions that may be available to the court, including the making of appropriate directions to address the danger of unfair prejudice.
The first inquiry concerns the facts in issue to which the evidence may relate. In this case, an important fact in issue is the intent of the accused when entering the premises on 4 November. This intent goes to the aggravated burglary charge, but the Crown submits the evidence is also relevant to the intent of the accused in relation to the charge of unlawful confinement. The Crown says that the material contained in the note provides both evidence of a general motive of the accused and evidence of a specific motive.
The Crown argues that a jury would be entitled to see the note as an admission that, in the period surrounding the writing of the note (including the time of the alleged aggravated burglary), the accused was motivated to seek retribution or to "teach the complainant a lesson" because of the way in which the accused perceived that the complainant had treated him during their relationship and on or about 9 October 2013 when, as the accused perceived it, the complainant had publicly humiliated him.
In relation to specific motive, the Crown asserts that a jury would be entitled to consider that the note discloses a motive for causing emotional pain or psychological harm to the complainant, particularly insofar as the note states that the accused had intended to show the complainant just how damaging breaking someone's heart/trust could be when he behaved in a "psychopathic way".
In my view, a jury could find the note to be very probative of the state of mind of the accused in the period leading up to 4 and 5 November 2013. The jury could read it as an admission that the accused was motivated to teach the complainant a lesson and was prepared to behave in a "psychopathic way" to achieve "some sort of lover's revenge", and to view that intention as consistent with the complainant’s allegations about his conduct on 4 November 2013.
A related issue concerns the timing of the note. The note itself says that the complainant caused severe humiliation to the accused "three weeks ago" and then refers to "dad's birthday". The Crown will assert that the date in question was 9 October 2013. If three weeks was a correct statement of the lapse of time, then the note must have been written on about 30 October 2013, i.e. approximately five days before the alleged offences.
On the other hand, the accused led evidence through the solicitor to the effect that, at the trial, he will assert that the note was a suicide note that was written on 21 October 2013 and that, almost immediately thereafter, the accused changed his mind about suicide. The date of 21 October 2013 is two weeks prior to the alleged incident on 4 November 2013.
The Crown’s response is that it does not matter whether the note was written on about 30 October 2013 or on 21 October 2013. The Crown will argue that, at the time when the note was written, the accused harboured very strong feelings towards the complainant and desired to teach her a lesson, and that the strength of his feelings was consistent with the alleged conduct on 4 November 2013.
The Crown also argues that the notes, particularly the note addressed to the parents of the accused, is corroborative of the complainant's version of what occurred insofar as, according to the complainant, during the incident the accused said words to the effect, "the gun is not for you, it's for me," and the note says, "I didn't intend to harm her, though, just for her to see how damaging breaking someone's heart/trust can be."
The note has very significant probative value.
It is necessary to consider the danger of unfair prejudice. The accused asserts that, at the trial, he will call evidence that there was a significant time gap between the writing of the note and 4 November 2013 such that the note is capable of saying little about his intent as at 4 November 2013.
Whether the accused elects to call such evidence and whether any such evidence neutralises the impact of the notes will be a matter for the jury. I am inclined to agree with the Crown's submission that a jury may well consider that it does not matter whether there was a lapse of five days or a lapse of two weeks between the writing of the note/s and 4 November 2013. It is available for the jury to find that, when the notes were written, the accused harboured very strong feelings, which had recently been inflamed by an argument at the Dickson shops on 9 October 2013, and that the feelings were such that they were likely to have persisted until 4 November 2013, explaining the conduct of the accused on that day.
The accused also argues that there is a danger that the jury may reason in an irrational way, engaging in false tendency reasoning to the effect that a person who wanted to commit suicide was someone of bad or dubious character and that, if a person is capable of contemplating suicide, then they are capable of murdering or contemplating the murder of their former partner.
First, I do not accept that the general community regards an inclination to commit suicide as evidence of bad character or regards a person who is prepared to commit suicide as being more likely to physically harm someone else. Second, it is not the Crown case that the notes evidence a desire to physically attack or harm the complainant. The note to the accused’s parents says, "I didn't intend to harm her". On the other hand, the Crown says that the notes provide strong evidence of an intention to cause psychological harm.
In my view, there is very little risk that a jury would reason in the manner suggested by the accused. On the one hand the notes provide very probative evidence in relation to the questions of motive and intention and, on the other hand, there is almost no danger of unfair prejudice to the accused. The application under s 137 is refused.
In relation to s 135, a similar argument is advanced by the accused to the effect that the notes may confuse the jury or be utilised for an improper or unfair purpose, namely to reason that the accused is of bad character because of a tendency to commit suicide, and therefore it was more likely that the accused would cause physical harm to another. For the above reasons, these arguments have no merit. The application under s 135 is refused.
Application to vacate trial date
The accused applies to vacate the trial date and relist the matter next year. The basis of the application is that the counsel currently retained by the accused is unavailable during the week in question and, while other counsel are available, the cost of re-briefing may be in the vicinity of $10,000 to $12,000.
At a callover on 13 August 2013, the matter was listed for trial in the week commencing on 1 December 2013. The trial date is more than two months away. There is no suggestion that the instructing solicitor will change. The instructing solicitor is experienced and will assist incoming counsel to gain a thorough knowledge of the matter, thereby minimising re‑briefing costs.
If the trial date is vacated, there is a very good chance that a judge will be unoccupied for several days during that week, at great public expense. The Crown is ready to proceed, as are the Crown witnesses. I assume that the complainant is anxious to see the matter finalised, and her interests must be taken into account.
The accused can obtain other counsel, albeit at some expense. The interests of the complainant, the prosecuting authorities, the Court and the public must also be considered. The application is refused.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 16 December 2014 |
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