R v Wilio (Ruling No 2)
[2021] VSC 606
•22 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0212
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NORDEN WILIO |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 23, 24, 25 & 30 August 2021 |
DATE OF RULING | 22 September 2021 |
CASE MAY BE CITED AS: | R v Wilio (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 606 |
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CRIMINAL LAW – Murder – Shootings of two men in the course of a planned armed robbery – One of the murders charged in the alternative on the basis of s 3A of the Crimes Act 1958 – Charge of attempted armed robbery included on indictment – Whether should be severed – Evidence of attempted armed robbery would be led in any event - No prejudice to fair trial of accused by inclusion of the charge – Not appropriate to sever – Tendency evidence – Whether evidence concerning previous connection of one of deceased with firearms admissible as tendency evidence going to the issue of whether he, rather than the accused, fired the fatal shots – Not admissible as tendency evidence – Evidence Act 2008 ss 55, 97, 159, 193.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson QC with Mr G Hayward | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr P Chadwick QC | Portfolio Law |
HIS HONOUR:
Introduction
The accused is to stand trial on an indictment containing a charge of attempted armed robbery and three charges of murder. Rulings are required in respect of two remaining pre-trial issues.
It is alleged that the accused and his associate Ali Ali (‘Ali’) planned an armed robbery of Deniz Hasan (‘Hasan’) with the use of a shotgun. During the course of the planned armed robbery (charge 1), the accused is alleged to have intentionally shot and killed Hasan (charge 4), and to have accidentally shot and killed Ali (charges 2 and 3) while trying to shoot Hasan. In relation to the death of Ali, the applicant is charged with common law murder relying on the doctrine of transferred malice (charge 2) and, in the alternative, statutory murder (charge 3) occurring in the course or furtherance of the attempted armed robbery of Hasan.
The first matter in respect of which a ruling is required concerns the presence on the indictment of the charge of attempted armed robbery. Mr Chadwick QC, for the accused, acknowledges that the inclusion of the charge is in accordance with the legal requirements of the Criminal Procedure Act 2009 (‘CPA’), but submits that the indictment should be severed pursuant to s 193(3)(a) of the Act.
The second matter for ruling concerns the question of the admissibility and use as tendency evidence of evidence about Ali from his brother Sef Ali (‘Sef’).
Facts
It is alleged that on the afternoon of 4 March 2019, Ali and an associate, Ibrhim El Ali (‘Ibrhim’) made a decision to purchase some cannabis and engaged Ibrhim’s brother, Ali El Ali (‘AEA’), to liaise with Hasan, who was a cannabis dealer. AEA arranged to meet Hasan in Huntley Court, Meadow Heights.
Hasan drove to a pre-arranged location with his associate, Josip Civcija (‘Civcija’). Ali and Ibrhim were driven to Ellam Court, Meadow Heights, close to Huntly Court, by a friend named Stan Bakopoulos (‘Bakopoulos’). They walked through a paddock before Ibrhim met Hasan in Huntly Court as Ali hid nearby. Hasan provided Ibrhim with a small sample of cannabis. Ibrhim noticed a significant amount of cannabis in the boot of Hasan’s vehicle.
Ibrhim provided the sample to Ali, informing him of what he had seen in the boot of the vehicle. The two men returned to Bakopoulos’ vehicle. Ali requested that he drive them to the accused’s premises in Broadmeadows. Ali attended inside before returning with the accused, who allegedly had a shotgun secreted in his jacket.[1] Bakopoulos drove all three men back to Ellam Court. At the same time, Hasan arrived in the area to the south of Ellam Court.
[1]It is not alleged on the prosecution case that Bakopoulos and Ibrhim were aware of the weapon at that time.
The accused and Ali approached Hasan. An argument occurred between Ali and Hasan, during which the accused produced the shotgun. After being shown by Ali that the shotgun was loaded, Hasan fled the scene towards Huntly Court. He was pursued by the accused and Ali, who, it is alleged, intended to rob him of his cannabis.
On his arrival back at Huntly Court, Hasan tried to get into his vehicle, in which Civcija was seated in the front passenger seat. Hasan tried to get into the driver’s seat but was dragged from the car by Ali and hit across the head with the shotgun by the accused.
While Hasan struggled with Ali, the accused discharged the firearm towards them, intending to shoot Hasan, but striking Ali to the torso instead. He then discharged the firearm a second time, striking Hasan to the head. Ibrhim witnessed these events from close by, as did Civcija who watched from the passenger seat. Residents in the area heard two shots in quick succession. Ibrhim ran away after the second shot.
Civcija went to the aid of Hasan, who had fallen to the ground. The accused helped Ali into a nearby shopping trolley and pushed the trolley to a point in Morris Court, Meadow Heights, where the trolley tipped over and Ali fell to the footpath, screaming in pain. At some point whilst in Morris Court, it is alleged that the accused disposed of two shotgun cartridges and a pair of Ansell gloves in a drain outside residence number 6, where they were later recovered by police. The accused shortly thereafter departed the scene with the assistance of some associates who came to the scene at his request.
Law
Section 55(1) of the Evidence Act 2008 provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 159(3)(c) of the CPA dictates that an indictment must comply with Schedule 1 of the Act. Clause 5(3) of Schedule 1 provides that an indictment may contain charges for related offences, whether against the same or different accused. Section 3 of the CPA defines ‘Related offences’ as follows:
related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.
Section 193 of the CPA relevantly provides:
193 Order for separate trial
(1)If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.
…
(3)The court may make an order under subsection (1) …if the court considers that—
(a)the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment;
…
Joinder issue
Submissions for the accused
Whilst contending that the charge of attempted armed robbery would not meet the description of forming or being part of a series of offences of the same or a similar character, Mr Chadwick conceded that the charges currently on the indictment are related offences by virtue of being ‘founded on the same facts’. He submitted, however, that the indictment should be severed pursuant to s 193(3)(a) because the fair trial of the accused would be prejudiced by the inclusion of charge 1 on the indictment.
Whilst acknowledging that the prosecution would be entitled to lead all of the evidence in support of the armed robbery charge in the prosecution of the accused for the murders, Mr Chadwick submitted that in light of the complexity already unavoidable with the other charges on the indictment and the difficult concepts with which the jury would be required to grapple, the inclusion of the armed robbery charge would introduce a further complication and ‘muddy the waters’ to such an extent that the charge should be severed.
Mr Chadwick outlined some considerations from the decision of the Court of Appeal in Fleming v The Queen[2], and then, more particularly, relied upon the reasoning of Whelan J in The Queen v AB & Baker[3] in support of the contention that the ‘more traditional approach’ of only having the murder charges included on the indictment should be taken here.
[2][2021] VSCA 206 (‘Fleming’).
[3][2008] VSC 106 (‘AB’).
Submissions for the prosecution
Mr Gibson QC and Mr Hayward appeared for the prosecution, and Mr Hayward advanced the submissions on behalf of the Crown in respect of both matters in contention.
On the joinder issue, Mr Hayward submitted that the charges on the indictment pass the legal test for joinder as they are founded on the same facts. He did not seek to argue that the other aspect of the definition of related offences would also apply. He submitted that whilst there may be a customary practice not to include other charges on an indictment for murder, here, there are cogent reasons why the armed robbery charge should remain on the indictment. One way in which murder will be put against the accused is on the basis of s 3A of the Crimes Act 1958. Therefore, not only will the evidence in proof of the attempted armed robbery need to be led before the jury, but they will need to consider whether an attempted armed robbery is made out for the purpose of deciding whether a s 3A murder is proven. The inclusion of the charge for the foundational crime on the indictment, far from muddying the waters and adding to the complexity of the trial, would ensure that the jury will understand that they need to be satisfied beyond reasonable doubt on the charge of attempted armed robbery before they could return a verdict of guilty on charge 3.
Another cogent reason for joinder pointed to by Mr Hayward is the fact that the attempted armed robbery is closely bound up with the murders. The evidence in respect of all of the offences is such that it would be inefficient to hold a separate trial for the attempted armed robbery, which is itself a serious crime. Mr Hayward referred to the consideration by the Court in Fleming of the case of R v Reid[4] in which the policy underpinning the immediate forebear of cl 5(1) of Schedule 1 of the CPA was discussed. The Court in Reid stated:
Before analysing the two requirements, it is desirable to mention that it has long been accepted that the Rule should receive a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be “properly and conveniently” dealt with together. This involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and expeditious and final litigation as well as with the convenience of witnesses.[5]
[4][1999] 2 VR 605 (‘Reid’).
[5]Ibid [163] (citations omitted).
Mr Hayward submitted that there would be no undue prejudice or embarrassment to the accused caused by joinder in this case, and that there are cogent reasons for the charge of attempted armed robbery to remain on the indictment and be heard at the same time as the murders.
Analysis and conclusion – Joinder issue
In this case, it is not in dispute that the inclusion of the charge of attempted armed robbery on the indictment was in accordance with the requirements for joinder under the CPA. In this respect, the case differs from Fleming, in which the case turned on the conclusion of the Court of Appeal that charges for the alleged antecedent rapes of the deceased could not be properly joined on an indictment with a charge for her murder.
Having reached that conclusion, the Court, whilst acknowledging that it was strictly unnecessary for them to do so, went on to consider and make some observations about the time-honoured practice of not including other charges on indictments containing a charge of murder. Having considered a number of the authorities, the Court concluded that whilst general adherence to the customary practice ‘has much to recommend it’,[6] there will be cases where it will be appropriate for other charges to be joined with a murder charge. The Court stated:
A degree of circumspection is, however, required before the usual practice is departed from. And although we would not endorse the notion that ‘exceptional circumstances’ are required before an offence for another charge is joined with a charge of murder, departure from the usual practice should only be contemplated when there are cogent reasons for doing so.[7]
[6]Fleming [99].
[7]Ibid [101].
One of the decisions referred to by the Court in Fleming was AB, a case relied on by Mr Chadwick. A consideration of the facts in AB would, to my mind, immediately make it plain that the circumstances confronting Whelan J were very different from those in front of me.
In AB, the Crown had filed a presentment against two accused which contained a count of murder, a count of affray, and 18 counts charging assaults of various types. All of the charges had arisen from events which took place at a party in a converted warehouse. Fights had broken out inside the area of the warehouse where the party was taking place. Some time later, a fight occurred in the stairwell just outside that area. One of the persons involved in that fight went through a window and fell to his death.
In the end, the main contention of the Crown was that the charges of affray and murder should be heard together. On behalf of the accused, it was not contended that those counts had been improperly joined. It was submitted, however, that an order for a separate trial of the murder count should be made. Whelan J stated:
I accept that the strict traditional approach to the separate trial of murder counts is no longer warranted. There will be circumstances where there will be no prejudice or embarrassment to the defence in another count or counts being tried with a murder count and where such a trial will be appropriate. In my view, however, this is a case where the traditional approach should be followed.
In substance, I accept the submissions of counsel for the defence that the affray count will impose undesirable complication in what will be a difficult task for the jury in any event. On the murder count the jury will have to consider a number of difficult issues, including issues of accessorial liability and causation. If the affray is heard as well, the jury will have additional difficult issues to address such as determining beyond reasonable doubt the actions perpetrated by each of the alleged parties to the affray and what was the effect of those actions separately and together on reasonable bystanders. These are issues which will not necessarily need to be determined or considered in the same way by the jury when addressing the murder count.[8]
[8]Ibid [10]-[11].
In the case before me, a distinguishing feature from any of the other cases to which I was specifically referred is the fact that the charge of attempted armed robbery which the defence urge me to sever from the indictment is the foundational crime for the charge of s 3A murder which is included on the indictment. Whether or not the attempted armed robbery charge remains on the indictment, the jury will hear all of the evidence relating to that alleged crime, and will need to grapple with the law relating to that offence in order to determine, if they come to consider it, charge 3 on the indictment. It is true, as submitted by Mr Chadwick, that the jury may only come to consider charge 3 if they reach a verdict of not guilty on charge 2. However, that would not absolve me, as the trial judge, of the obligation to instruct the jury fully on the law relating to all of the charges on the indictment.
I fully acknowledge that this will be a trial of some legal complexity. Not only is there a murder charge where the concept of transferred malice will be in play, but there is a charge of s 3A murder laid in the alternative in respect of the murder of Ali, as well as a charge of common law murder where Hasan is concerned. That is without even considering the question, not yet the subject of any discussion before me, of whether manslaughter should be left as an alternative to either or both of the murders.
I also accept that the introduction of directions on the crime of attempted armed robbery will further complicate things for the jury. In the circumstances, however, I consider that the additional complexity introduced by the presence of that charge on the indictment is not such as would prejudice the fair trial of the accused, and that the inclusion of that charge on the indictment is supported by cogent reasons as submitted by Mr Hayward.
In my view, it would be inappropriate to order under s 193(1) that charge 1 be tried separately from the other charges on the indictment, and I decline to do so.
Tendency evidence issue
Background
By way of background to a consideration of the relevant tendency notice, a notice of additional evidence in respect of the witness Sef was served on the defence in April 2021. As indicated earlier, Sef is the brother of Ali. He had previously made a statement. In the new statement dated 16 April 2021, Sef gave an account of military service in which he and his brother engaged in Syria for six years from 2009. They did basic military training together for six months, during which time they both became well trained in handling all types of firearms including AK-47s and pump-action shotguns. Ali became very confident and capable with firearms and was trained in their safe operation. In the statement, Sef indicated that when the Syrian uprising began and the country fell into war, he and Ali were caught up in the process, being deployed to the front line to fight against Islamic State of Iraq and Syria (‘ISIS’) and other non-government groups. At times, they were also used as bodyguards for a prominent Damascus radiologist who was the son of a Syrian General. People such as doctors were regular targets of ISIS and Sef and his brother were required to travel with the family and provide 24 hour security for them. They were always armed and ready for an attack upon the family. Attached to the statement of Sef were a number of photographs and a video showing Ali in possession of firearms, sometimes seemingly aiming them at the camera or himself.
Mr Chadwick applied for and was granted leave to cross-examine Sef under s 198B of the CPA. In his evidence before the Court, Sef expanded on the military training received by himself and his brother, the proficiency Ali gained in the use of firearms, his experience in particular with the use of shotguns, and what their duties both in the army and in their positions as bodyguards entailed. Sef was asked about the circumstances of the taking of the photographs and video. He said that Ali had no experience with firearms before his trip to Syria and that he did not see him with firearms after their eventual return in 2015. In terms of their training, Sef indicated that Ali had been trained about the proper use of firearms. He became very capable and was smart.
The prosecution indicated that it would seek to lead the evidence of Sef as to his brother’s military training and proficiency and experience with the use of weapons as part of its case in rebutting the defence that Ali shot himself.
The tendency notice dated 5 May 2021 read in part, as amended during oral submissions before me, as follows:
1.Pursuant to s. 97(1) of the Evidence Act 2008 (‘the Act’) the Defence gives notice that it intends to adduce tendency evidence – being evidence of the character, reputation or conduct of a person; or tendency that a person has or had, a tendency (whether because of the person’s character or otherwise) to act in a particular way or to have a particular state of mind.
2.Who – The defence seeks to adduce tendency evidence concerning the deceased Ali ALI (‘ALI’).
3.Issue – The Tendency evidence relates to the following facts in issue in relation to both charges on the Indictment (murder and attempted armed robbery), including that ALI on the charged night –
a. possessed, carried and used/discharged the firearm;
b. used the firearm in attempting to commit an armed robbery;
c. shot and killed the deceased Deniz HASAN;
d. accidentally shot himself.
4.Use of tendency evidence – The tendency evidence is sought to prove that ALI was a man who –
a. would act in a particular way, namely –
i. possess, carry and use firearms; and
…
b.had a particular state of mind to achieve a particular outcome, namely –
i. to use firearms at will; and
ii. to discharge firearms at will; and
…
5.Particulars – The particulars of the conduct of which tendency evidence will be adduced, and particulars of the date, time, place and the circumstances in which that conduct occurred, and the name of each person who saw, heard or otherwise perceived that conduct, are –
Conduct 1
a.In 2010 after travelling to Syria, ALI subsequently joined the Syrian Army together with his younger brother, SEF Ali.
b.In the army they trained to use and handle weapons including all types of firearms. For 6 years they were deployed in frontline combat roles, fighting against ISIS and anti-government groups.
c.They also worked as bodyguards armed with handguns and AK-47 before returning to Australia.
d.Facebook photos revealed that ALI would knowingly take, or have pictures of himself taken by SEF Ali holding firearms as shown on his Facebook page whilst in Syria.
The defence will adduce this evidence from prosecution witness SEF Ali. In this regard see: Notice of Additional Evidence. Statement of SEF Ali dated 16 April 2021, and the photographs contained therein.)
Submissions for the accused
Mr Chadwick submitted that the real issue in the trial is whether or not it was the accused who fired the two shots with the shotgun. The position of the accused at trial would be that at all times, it was Ali who was in possession of the firearm. He submitted that the defence position is that the training and experience of Ali with firearms make it more probable that he would possess and use a firearm on that night. He was in the habit of using and firing firearms at will, including at people. The photographs of him would contradict the proposition that he would always adopt safe practices with firearms. It was further submitted that the experience of Ali in the possession and use of firearms would make it more probable that he would be comfortable with the possession of a firearm and more prone to handling it carelessly, increasing the prospect that he may have shot himself accidentally.
In support of his submissions, Mr Chadwick took the Court at length to the ruling of Kaye JA in Director of Public Prosecutions v Dixon and Others,[9] a case in which counsel for the respective accused sought to adduce evidence to establish a tendency in the victim of the alleged attempted murder to resort to aggression and violence when angered, and to use firearms to settle personal grievances.
[9][2020] VSC 743 (‘Dixon’).
By reference to the three questions addressed by Kaye JA in connection with that case, set out at [100], Mr Chadwick submitted that a consideration of the same questions as adapted to the present case would indicate that the evidence in questions should be admissible as tendency evidence.
Mr Chadwick noted what had been said in Hughes v The Queen[10] to the effect that in order to be admissible as tendency evidence, it is not necessary that the evidence must reveal or contain similar features as the evidence in issue in the particular case.
[10](2017) 263 CLR 338 (‘Hughes’).
He submitted that unlike the position in respect of some of the evidence in Dixon, the evidence in this case would be ‘a matter of relatively simple proof’.[11] Mr Chadwick submitted that in this case, the evidence in question would have significant probative value as tendency evidence, in the way in which that term was considered by Hunt J in R v Lockyer,[12] that is, as meaning something more than mere relevance but less than a substantial degree of relevance.
[11]Transcript 62.
[12](1996) 89 A Crim R 457 .
Bearing in mind that it is the accused who seeks to rely on the evidence as tendency evidence, Mr Chadwick pointed to paragraph [106] in Dixon in which Kaye JA held:
In the present case, it is the accused who seek to adduce the tendency evidence contained in the notice. The accused do not bear any legal onus of proof in the trial. Accordingly, the question whether the evidence is admissible will depend on whether it has significant probative value in raising an inference, as a reasonable possibility, that is consistent with the innocence of the accused.[13]
[13]Dixon [106].
Mr Chadwick submitted that in this case, the evidence in question would have significant probative value in raising an inference as a reasonable possibility that it was Ali who fired the shots and not the accused, which possibility would be consistent with the accused’s innocence.
Submissions for the prosecution
Mr Hayward relied on the written outline filed on behalf of the Crown, and his oral submissions before me, in opposing the use of the evidence in question as tendency evidence. He submitted, relying on what was said by Kaye JA in Dixon at [106], that the question of admissibility or use as tendency evidence involves an assessment as to:
(a) whether the evidence supports a conclusion that Ali had the specific tendencies identified; and
(b) whether the evidence has significant probative value in respect of those issues.
It was submitted that the evidence reveals a tendency on Ali’s behalf to possess, carry and use firearms, and discharge them in a certain context, namely, war and as part of an armed force. It would demonstrate a level of skill and familiarity with firearms. It is not capable, however, of establishing a tendency of Ali to use firearms in an illegal context such as armed robbery or to discharge them in such a context.
The evidence has a degree of generality, it was submitted. There is no evidence before the Court relating to particular occasions or circumstances during which Ali discharged firearms.
Mr Haward submitted that the evidence is not capable of establishing the tendencies relied upon.
Accordingly, it was submitted, the evidence does not have significant probative value that Ali possessed the firearm during the current incident, used it in attempting to commit an armed robbery, shot himself, or shot Hasan.
As to Ali at one time having possession of the shotgun, it is part of the Crown case that he showed it to Hasan prior to the attempted armed robbery, so the tendency evidence would not further assist in this regard as to his possession of it. As to the purported tendency to discharge firearms ‘at will’, based on the evidence of Sef, the tendency evidence failed to reach the high bar of significant probative value.
Mr Hayward submitted that the defence argument amounts to an assertion that if a person has been a soldier and has worked as a bodyguard, the person is more likely to shoot someone in an attempted armed robbery and accidentally shoot himself. He submitted that the flaw in that argument ‘flows from the generality in which the tendency is expressed and the lack of particularity of evidence supporting it’.[14] In fact, it was submitted, a degree of proficiency in the army might in fact tend against the probability that Ali accidentally shot himself.
[14]Outline [19].
In his oral submissions, Mr Hayward submitted that at the heart of the defence argument is the proposition that because Ali often possessed, carried and used firearms in the army, this makes it significantly more probable that he shot Hasan and shot himself. He submitted that this argument ‘does not survive the rigour that is required as tendency evidence. It doesn’t have the logical connection that provides it with significant probative value’.[15]
[15]Transcript 68-9.
Mr Hayward submitted that when the evidence is analysed, it may show a tendency for Ali to possess and use firearms, but in a very particular context, that is, during war, as a conscripted member of the army. There was no evidence showing the use of firearms by Ali either before he went to Syria or after his return. There was no evidence which would establish a tendency to indiscriminately use firearms at will. What was established was a tendency to discharge firearms in the context of orders at law to do so. His use of firearms in the context in which it occurred would not render it significantly more probable that he actually carried and used the firearm to shoot Hasan and himself on this occasion.
Mr Hayward submitted that the true issue is not really whether Ali possessed the firearm on the occasion in question, but rather, whether he discharged the firearm. Properly analysed, Mr Hayward submitted that there are problems with the chain of logic relied upon by the defence in justification for the admission of the evidence as tendency evidence. The fact that Ali was in the habit of possessing and firing weapons in the context of military service would not make it more probable that he possessed and discharged the shotgun on this occasion.
Analysis and conclusion – Tendency evidence issue
In Dixon, Kaye JA said of tendency evidence:
Tendency evidence is a form of circumstantial evidence. In essence, a party, relying on such evidence, seeks to establish that, because a person has or had a tendency to act in a particular way, or to have a particular state of mind, it might be inferred that that person acted in the same way, or had the same state of mind, on the occasion of the offence with which an accused person is charged.[16]
[16]Dixon [98].
In that case, as in this, the Court was considering the admissibility on behalf of the accused of tendency evidence. In that case, the evidence concerned the alleged victim of the attempted murder, one Morgan. In the context of that case, his Honour indicated that in order to determine the admissibility of the tendency evidence, it was necessary to address three questions, namely:
(1)Whether the evidence, that is sought to be adduced, supports a conclusion that Morgan had the particular tendency specified in the notice, namely, a tendency to resort to aggression and violence when angered, and to use firearms to settle personal grievances.
(2)Whether that particular tendency itself would have probative value in the case; that is, whether such a tendency of Morgan, if established, would be capable of rationally affecting the assessment by the jury of the probability that Morgan acted in the manner contended for on behalf of the accused, namely, that he acted in an aggressive and violent manner in which he threatened to use, or was reasonably apprehended to threaten to use, a firearm.
(3)Whether, as such, the tendency evidence would have significant probative value in respect of that fact.
In Hughes, the plurality noted:
Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.[17]
[17]Hughes [16].
In Dixon, Kaye JA was dealing with the position of a number of accused who each sought to adduce tendency evidence. His Honour noted:
The accused do not bear any legal onus of proof in the trial. Accordingly, the question whether the evidence is admissible will depend on whether it has significant probative value in raising an inference, as a reasonable possibility, that is consistent with the innocence of the accused.[18]
[18]Dixon [106].
His Honour went on to refer to his earlier ruling in Director of Public Prosecutions v Campbell (Ruling No 1),[19] in which having reviewed the authorities, he had expressed the relevant test as follows:
The approach to the question of admissibility of tendency evidence, sought to be adduced on behalf of the accused, must, of necessity, be different to the approach taken by the court to tendency evidence which is sought to be adduced on behalf of the prosecution. In a criminal trial, the accused does not bear any legal onus of proof. Rather, on particular issues, the accused may bear an evidentiary onus of adducing evidence, from which an inference arises that a reasonable possibility, consistent with innocence, exists. Thus, in determining whether tendency evidence, sought to be adduced by an accused, is admissible under s 97(1), it must be borne in mind that that evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.[20]
[19][2013] VSC 665.
[20]Ibid [41].
It is contended on behalf of the accused that the evidence set out in the tendency notice is relevant to the question of who discharged the firearm at the time Ali and Hasan were shot. Therefore, in order to be admissible as tendency evidence under s 97(1) of the Evidence Act 2008, the evidence must have significant probative value in raising or supporting an inference, as a reasonable possibility, that Ali, rather than the accused, was the person who fired the fatal shots.
The evidence of Sef set out in his most recent statement and expanded upon in his sworn evidence points to Ali having substantial experience in the possession and use of firearms of varying types, such that it may be capable of proving a tendency to possess, carry and use firearms and to discharge them at will. However, it is immediately apparent that any such tendencies able to be established by the evidence are strictly limited to a certain context, namely, the context of his engagement, and indeed, employment as a conscripted soldier in the course of military conflict or preparations for military conflict, or as a bodyguard in what would seem to be Government-sanctioned actions. In addition, there was evidence, not seemingly relied upon to any great extent by Mr Chadwick, pointing to the regular use of shotguns while in Syria outside the military context, but such use was said to be in a sporting or leisure context involving shooting at objects, and not involving any discharge towards people. There was no evidence to indicate that Ali had any wider connection with the possession or use of firearms than these. The evidence did not indicate that Ali had a connection with firearms before he was conscripted in Syria, or after he returned to Australia six years later. There was no evidence which would establish a tendency to indiscriminately use firearms at will or to use firearms in connection with criminal activity. All that was established at most was, as submitted by the prosecution, a tendency to discharge firearms in the context of wartime orders at law to do so.
In my view, the evidence relied upon falls short of proving that Ali had the tendencies relied upon in the tendency notice to act in a particular way in connection with the possession and use of firearms and to have a particular state of mind, that is, to use firearms at will.
Even if I was wrong in that conclusion, any tendency proved in respect of the accused would have limited if any probative value in connection with the issue in the trial of who discharged the firearm. As indicated in the Dictionary in the Evidence Act 2008, ‘probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. What has been proved in respect of Ali’s training and experience in the use of firearms in the military, lawful context in which it occurred throws no real light on the issue of whom it was, out of Ali and the accused, who, in the course of criminal activity, discharged the shotgun on the occasions in question.
Even if the evidence could be said to possess some marginal relevance on the question of the identity of the shooter, which I doubt, there is no way that it could be said to pass the stringent test for admissibility for use as tendency evidence which would require it to have significant probative value. In my view, the evidence does not have significant probative value, and therefore, cannot be relied upon as tendency evidence.
Conclusion
For the reasons stated above, I consider that the charge of attempted armed robbery is correctly and appropriately included on the indictment, and that it would be inappropriate for the Court to make an order under s 193(1) of the CPA that the charge be tried separately from the other charges.
I further rule that the evidence sought to be relied upon by the defence as tendency evidence cannot be used in that way.
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