R v Wardlaw (Ruling No 1)
[2019] VSC 408
•4 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
S CR 2018 0333
| THE QUEEN |
| v |
| BEN RICHARD WARDLAW |
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JUDGE: | CHAMPION J |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 3 June 2019 |
DATE OF RULING: | 4 June 2019 |
CASE MAY BE CITED AS: | R v Wardlaw (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 408 |
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CRIMINAL LAW – Ruling – Trial – Murder – Admissibility of alleged continuing conduct evidence – Central issue in trial will be intent – Insufficient connection to charged act – Evidence ruled inadmissible – Higgins v The Queen [2016] VSCA 47 – Parachoniak v The Queen [2017] VSCA 347 – R v Karabegovic (Ruling No 3) [2015] VSC 642 – O’Leary v The King (1946) 73 CLR 566.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Piekusis QC Mr T. Bourbon | Office of Public Prosecutions |
| For the Accused | Mr M. Thomas Ms C. Lynch | Melinda Walker |
HIS HONOUR:
Introduction
The accused man, Ben Wardlaw, is charged with the murder of Karen Ashcroft on 14 May 2018 at Unit 6/8 Alma Street, Maryborough, in Victoria. This ruling concerns evidence sought to be adduced by the prosecution, regarding events the accused is alleged to have been involved in, a number of hours before Ms Ashcroft was fatally stabbed.
Initially, the prosecution submitted the evidence was admissible as context evidence. In the course of argument, however, it became clear that the prosecution argued for admissibility on the basis of continuing conduct.
The accused objects to this evidence and seeks for it to be excluded.
Summary of the prosecution case
The prosecution allege that between 3:00-4:00am on 14 May 2018, the accused fatally stabbed Ms Ashcroft once to the chest. For approximately ten days before this, the accused was living with four others in the unit where the alleged events took place. The accused had been on a methadone program in the period leading up to the events, and was experiencing emotional difficulties. Various individuals described him as acting strangely, being irritable, and that he was ‘not with it’ during this period. He also kept a large orange hunting knife with him for a couple of days before the alleged offending.
The medical history of the accused shows he was previously diagnosed with anxiety and on a number of prescription medicines. The accused also allegedly used methamphetamine in the period up to the relevant events, including the evening of 13 May 2018. The Crown case is that the accused had a long history of drug abuse and self-medication.
On 13 May 2018, the accused was present at the Alma Street unit, along with other residents and acquaintances. It is alleged that various drugs and alcohol were consumed by a number of people present at the unit throughout the night.
At approximately 6.00pm, the accused was allegedly involved in an incident with another individual, Kylie Thomas. I shall return to discuss this shortly.
Between 10.00pm and 11.00pm that night, Ms Ashcroft arrived at the unit with her partner. One witness, Kerrin McCallum, saw the accused staring at Ms Ashcroft, and reported that he appeared fixated on her the whole time she was present, with angry and scowling looks. At one point, Ms Ashcroft made her way to leave and the accused allegedly blocked her and then pushed away Ms McCallum when she tried to intervene. There seems to be no evident reason as to why the accused was fixated on Ms Ashcroft. I further note that the defence do not appear to challenge the evidence of the demeanor of the accused towards Ms Ashcroft.
At approximately 3.00am to 4.00am on 14 May 2018, Ms Ashcroft and her partner attempted to leave the unit again. The prosecution allege the accused had a knife concealed in the area of his left armpit and was seen to be holding it in his right hand. It is alleged the accused said something to Ms Ashcroft as she was leaving and then swung the knife towards her, striking her once in the chest. Ms Ashcroft fell to the floor as a result. Several witnesses allegedly saw at least parts of these events.
The central issue in the trial
In his response to the prosecution case, the accused concedes he stabbed Ms Ashcroft, thus resulting in fatal injury. The central issue in the trial is the accused man’s intention when he stabbed Ms Ashcroft. The accused denies that at the time of stabbing Ms Ashcroft, he had an intention to kill or cause her really serious injury.
The disputed evidence sought to be led
As above, at approximately 6.00pm on 13 May 2018, an argument allegedly erupted between Kylie Thomas and the accused. The prosecution allege words were exchanged between Ms Thomas and the accused, and the argument became physical when the accused ‘shaped up’ to Ms Thomas and said ‘I’ll wreck you’. Ms Thomas allegedly then attacked the accused and held him down. Others then intervened and separated the pair, taking the accused to another room until he calmed down.
The essential evidence to be led from the following witnesses can be summarised as follows:
(a) Kylie Thomas – who states there was an exchange of words with the accused, he said ‘I’m going to wreck you’, and she then grabbed him by the throat and held him to the ground.[1] At committal, Ms Thomas, along with two other witnesses, positively confirmed no knife was produced and no threat issued by the accused.[2]
(b) Craig Dodemaide – who states he heard Ms Thomas tell the accused that she would punch him in the head, or similar, and that the events did not take a long time.[3]
(c) Kerrin McCallum – who states both Ms Thomas and the accused were grabbing at each other’s necks during an argument. Ms McCallum stood next to the accused after the pair were separated, and reports the accused then pulled out a knife and held it up to his chest and said, ‘I’ll kill you bitch’. Ms McCallum reports the accused then he sat back down after others told him to.[4]
[1]Depositions 66.
[2]Ibid 531.
[3]Ibid 71.
[4]Ibid 63.
It is these events concerning the alleged threat to Ms Thomas that are in dispute between the parties and the subject of this ruling. More general evidence regarding the accused’s demeanor, his irritability and being out of sorts, is not presently at issue.
The defence submissions
Defence counsel submit the impugned evidence should not be led. It is submitted that it does not satisfy the aspects of contemporaneity or interconnectedness with the commission of the actus reus, so as to inform the question of intent. Counsel submit there is an interval of at least nine hours between the events of around 6.00pm, and Ms Ashcroft’s death around 3.00am to 4.00am the following day. Further, the alleged threat against Ms Thomas occurred some three or four hours before Ms Ashcroft had even arrived at the Alma Street unit.
Counsel for the accused seek to distinguish the case of O’Leary v The King (‘O’Leary’) on the basis that in that matter, the issue was one of identity and the evidence led was circumstantial which in combination with other evidence, enabled the conclusion that the accused committed the crime.[5] It was argued the present matter is different in that the identity of the person who killed Ms Ashcroft is not in dispute, rather it is the intention of the accused that is in issue.
[5](1946) 73 CLR 566.
Counsel for the accused also seek to distinguish the case of R v Karabegovic (Ruling No 3), which involved the continuing state of mind of a person said to hold political beliefs.[6] Is it submitted the present case involves a very specific alleged intent, namely a murderous intent held at the time of the attack, which can be distinguished from a longstanding political belief.
[6][2015] VSC 641.
Counsel also refer to the case of Parachoniak v The Queen (‘Parachoniak’), a matter concerning the driving of a motor vehicle before a serious accident.[7] The Court of Appeal observed that in drawing an inference of continuance, everything depended on the facts and the particular state of mind or state of affairs, in respect of which the inference of continuance is sought to be drawn. It is submitted that the incident with Ms Thomas does not have ‘sufficient features’ to reach the threshold that the accused formed an intent to kill or inflict serious injury upon Ms Thomas, and that at its height, the evidence may demonstrate he formed an intent to threaten to do so.
[7][2017] VSCA 347.
It is submitted the Crown are seeking to ask the jury to draw an inference that the accused had formed an intent to kill at the earlier time when he is said to have threatened Ms Thomas. As above, it is argued that the lapse of time and change of circumstances means it is not open to the Crown to draw such an inference. It is submitted it is insufficient for the Crown to prove the accused had an intent to be aggressive to someone other than the deceased at an earlier stage, or that he had an intent to threaten to kill someone unidentified at an earlier stage.
The prosecution submissions
As above, the prosecution have specifically retreated from the original basis put for the admission of this evidence, namely that it is context evidence. Instead, it is now argued the evidence goes to the accused’s continuing state of mind. The prosecution submit the purpose of the body of evidence, in which the evidence of the threat and display of the knife is contained, is about the conduct and observations of the accused on this night. It is submitted the impugned evidence is part of a continuing state of mind throughout the evening in question.
Counsel submit the absence of the relevant evidence would place the homicide in an unreal or unintelligible context, and would result in the fatal events looking like a random act, rather than a build-up of behavior that occurred over a period of time.
The prosecution rely on the principle of continuance. That is, that the evidence of the accused’s statements, actions and behavior, comprise evidence of a continuing state of mind by which the jury can infer, along with other evidence, that his intent when striking Ms Ashcroft was a murderous intent supporting a conclusion of murder, as distinct from the possibility of manslaughter.
The prosecution further argue that it does not matter to whom the state of mind is directed towards in order to be admissible. In this regard, counsel refer to O’Leary,[8] where the accused had inflicted violence on a number of people prior to the deceased being found, and that evidence was deemed to be relevant.
[8](1946) 73 CLR 566.
Further, the prosecution refer to Higgins v The Queen, which concerned the state of mind of intending to possess a thing, being a published magazine, in connection with assistance in a terrorist act.[9] Although the interlocutory application concerned argument about whether the evidence might amount to tendency, the Court of Appeal concluded that ‘proof of a connected series of events, not necessarily closely contemporaneous in a temporal sense to the act charged, but which evince a particular continuing state of mind may be admissible for purposes other than for tendency reasoning’.[10] The Crown submit the disputed evidence forms an integral part of ‘a transaction’,[11] such that it enables the proper understanding of the charged conduct.
[9][2016] VSCA 47.
[10]Ibid [19].
[11]Ibid [15].
Analysis
Significantly, it appears uncontested that the accused had been in possession of a knife over a number of days leading up to the events of 13 and 14 May 2018. There is also evidence from one witness, Ms McCallum, that at approximately 6.00pm on 13 May 2019, the accused pulled out a knife and issued a threat.
It is to be noted that the evidence of the accused’s possession of the knife and his threat to use it, does not extend to the actual use of the knife to strike another person. It is a threat that was allegedly issued and heard by one person. It is also particularly notable that the alleged threat was not made to the eventual victim, Ms Ashcroft, who was not even present in the unit at the time.
Such evidence of the type proposed to be led can provide essential background information that allows a jury to assess and evaluate other evidence. That is, such evidence can help the jury assess and evaluate the whole of the evidence in a complete and realistic context. It is clear that evidence of previous misconduct of an accused can be led as context, if relevant to the issue in the trial.
However, context is not the focus of the prosecution argument that the evidence is admissible in this case. Instead, the prosecution argue the basis of admissibility as being a continuous state of mind.
When assessing admissibility of a piece of evidence it is important to be clear about the issue toward which the evidence goes. Witnesses observed the events involving the fatal knife blow. That is not a matter in issue. That it was a deliberate blow that occurred is also not in issue. The issue in the trial is the state of mind of the accused – namely, did he carry out the fatal attack with the intention to kill or cause really serious injury?
Therefore, I must consider whether the evidence sought to be led would add to or inform the jury’s evaluation or assessment of the intent of the accused man at the time of the fatal attack. Does the evidence make it more likely that he intended to kill the deceased woman or cause her really serious injury?
As above, in Parachoniak, Maxwell P observed that the question of whether it is reasonably open to draw the inference of continuance ‘depends on the facts of the case, including the particular state of mind (or state of affairs) in respect of which the inference of continuance is sought to be drawn’.[12]
[12][2017] VSCA 347 [9].
Further, His Honour stated:
It was far from clear that, in my view, that the evidence of Tahuriorangi about the appellant’s earlier driving enable any clear inference to be drawn about her state of mind at that time. Inferring a person’s state of mind merely from observation of her conduct is ordinarily a matter of some difficulty. As Priest JA pointed out during argument, the position might have been different had the appellant herself made statements during the earlier driving which revealed her state of mind, especially if she had expressed any intention with respect to driving later in the night. But this was simply evidence of observed conduct.[13]
[13]Ibid [13].
The present case involves a statement allegedly made by the accused and observed conduct. He is said to have not only issued a threat to Ms Thomas, but also to have displayed a knife. The threat, if accepted, appears to have been specifically towards Ms Thomas, a person with whom the accused had had an altercation immediately prior, and who had used physical force against him. By comparison, the accused did not have an argument with Ms Ashcroft, albeit I acknowledge evidence suggests he appeared fixated on her.
The evidence in question, must in my opinion, go to the issue in the trial – namely whether the accused can be proven to have had murderous intent at the relevant time, towards the victim. Paraphrasing Kyrou JA in Parachoniak, in my opinion the particular evidence in issue is insufficient to enable the jury to draw an inference that, at the time of the fatal strike against the deceased, the accused possessed the murderous state of mind relevant to the particular charge he faces, namely murder.[14]
[14]Ibid [77].
The prosecution will be able to put a significant body of evidence before the jury as to the behavior and characteristics of the accused during this night and the period leading up to it, all of which is not sought to be excluded. The jury will have evidence that he was irritable, angry, and unduly watching and fixated on Ms Ashcroft. There will also be evidence led that accused attempted to prevent Ms Ashcroft from leaving the unit a short time before his alleged attack on her.
In my opinion, the disputed evidence does not bear sufficient connection to the alleged offence, such as to represent a continuing state of mind that relevantly informs whether the accused actually possessed murderous intent in respect of Ms Ashcroft.
In these circumstances I will exclude the disputed evidence from being led before the jury.
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