Rictor v The State of Western Australia [No 3]
[2022] WASC 223
•5 JULY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RICTOR -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2022] WASC 223
CORAM: FIANNACA J
HEARD: 1 & 2 FEBRUARY 2022
DELIVERED : 5 JULY 2022
FILE NO/S: INS 83 of 2020
BETWEEN: DAMIAN RICTOR
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Evidence - Post-offence conduct - Whether evidence relevant and admissible - Whether evidence of consciousness of guilt - Whether erratic behaviour capable of being evidence of consciousness of guilt - Whether alleged post-offence conduct 'intractably neutral' - Need to consider evidence of alleged post-offence conduct in the context of other evidence - Whether evidence should be excluded in the exercise of discretion due to impermissible prejudice outweighing probative value
Legislation:
Criminal Code (WA) (Code)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Result:
Evidence of post-offence conduct held to be admissible
Application to exclude evidence in exercise of discretion refused, except in part
Category: B
Representation:
Counsel:
| Applicant | : | Ms J Condon QC & Ms K M Thompson |
| Respondent | : | Mr J G Nicholls |
Solicitors:
| Applicant | : | Aboriginal Legal Service of Western Australia |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Allami v The State of Western Australia [2013] WASCA 230
Dair v The State of Western Australia [2008] WASCA 72
Dodd v The State of Western Australia [2014] WASCA 13
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Hawke v The State of Western Australia [2017] WASCA 40
Helton v Allen (1940) 63 CLR 691
Newhill v The State of Western Australia [No 2] [2015] WASCA 121
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Chin [1985] HCA 35; (1985) 157 CLR 671
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
Rajakovic v The State of Western Australia [2020] WASCA 98
Shaw v The Queen (1952) 85 CLR 365
The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299
The State of Western Australia v Rictor [2021] WASC 197
The State of Western Australia v Rictor [No 2] [2021] WASC 437
Whitehorn v R (1983) 152 CLR 657
FIANNACA J:
Introduction
The accused is charged on an indictment dated 1 December 2020 that, on 10 November 2019 near Boulder, he murdered Marie Shelley Watson (the deceased), contrary to s 279 of the Criminal Code (WA) (Code). The accused has pleaded not guilty to the charge and the matter will proceed to a trial before a judge and jury in Kalgoorlie on 21 November 2022.
The State's case against the accused relies on circumstantial evidence and alleged admissions by the accused, the details of which are set out below in the outline of alleged facts. In essence, the accused is alleged to have killed the deceased, with whom he was in a domestic relationship, when they visited a camp near Boulder, having travelled there from the remote Aboriginal community where they lived. It is alleged that the accused was the last person seen with the deceased before she died, and it was he who alerted a relative to her death and where she was located. It is alleged the accused caused the deceased's death by inflicting numerous blunt force injuries to her head and other parts of her body.
On 1 and 2 February 2022, I conducted a pre-trial hearing under s 98(2)(a) of the Criminal Procedure Act 2004 (WA) to determine issues of law concerning the admissibility of various items of evidence on which the State intends to rely at trial in its case against the accused. Those issues were raised by an application by the accused, dated 28 January 2022, to exclude from the trial:
(a)the evidence of certain 'community witnesses' as outlined in Defence submissions filed on 30 November 2021, headed 'Defence Outline No 4' ('the first category of evidence'); and
(b)translations of prison calls said to contain admissions against interest, as outlined in Defence submissions filed on 28 January 2022, headed 'Defence Outline No 5' ('the prison calls').
The 'Defence submissions' referred to in the application are written outlines of submissions filed on the dates mentioned, which set out the specific items of evidence to which the accused objects. Although some of the evidence of 'community witnesses' relates to background matters and events prior to the alleged offence, the most significant aspects of the evidence relate to the accused's conduct after the offence was allegedly committed ('post-offence conduct') and evidence of cultural practice that is said to explain some of that conduct ('cultural practice evidence'). The prison calls referred to in the application are calls made by the accused to various people while he has been in custody on remand for the murder charge. During those calls, he spoke in an Aboriginal language (which has been identified as Pitjantjatjara, and perhaps Ngaanyatjarra). Translations of the calls into English were prepared as transcripts.
The issues raised by the accused were extracted and particularised by the State in a 'List of Issues/Objections to be Determined at [the pre-trial hearing]', which was filed on 25 January 2022. That document, which also identified the State's position in respect of the objections, including concessions made by the State (thereby narrowing the issues to be argued), was of significant assistance at the hearing. Senior counsel for the accused agreed that the particulars identified the aspects of the evidence upon which I am required to make rulings. However, during the hearing, it was agreed that rulings were no longer required in respect of two of the matters in the list, which I will identify below. It was also agreed that a further matter should be left for the trial judge to deal with, having regard to the conduct of the trial in due course.
On 1 February 2022, I heard submissions in relation to the first category of evidence. The admissibility of the various items of evidence in that category that remain in issue is to be determined on the papers. At the conclusion of those submissions, I reserved my decision in respect of the items in issue.
On 2 February 2022, a voir dire commenced in relation to the prison calls. There are two aspects to the objection to that evidence. The first is a challenge to the accuracy and reliability of the translations. The second is a challenge to whether any of the things said by the accused constitute admissions against interest. The resolution of the latter aspect may depend on the outcome of the first challenge. The first challenge required the State to call the interpreters who prepared the translations to give oral evidence, to satisfy the court of their expertise and that the translations are accurate and reliable. The first interpreter gave evidence on 2 February 2022. At the conclusion of her evidence, the voir dire was adjourned part heard.
I indicated at that stage that I would give my decision in respect of each of the items in the first category of evidence as soon as was practicable, rather than await the conclusion of the voir dire in relation to the prison calls. That was in the context that the trial was listed to commence in Kalgoorlie on 4 April 2022.[1] The trial dates have since been vacated, as it was agreed by the parties that there were outstanding issues in relation to the prison calls that could not be dealt with in the time available before the trial was due to commence. As I noted above, the trial is now listed to commence on 21 November 2022.
[1] The trial was previously listed to commence on 26 July 2021, but those trial dates were vacated because of the need to deal with pre-trial evidentiary issues, which I discuss below.
Notwithstanding those developments, it is desirable that I give my decisions in respect of the items of evidence in issue in the first category of evidence now. Accordingly, my decisions and reasons in respect of those matters are as follows.
Background
The admissibility of the evidence in issue must be considered in the context of the State's case against the accused and rulings that have already been made in pre-trial hearings conducted by McGrath J on 20 April 2021,[2] and Derrick J on 2 and 3 November 2021.[3]
The State's case
[2] The State of Western Australia v Rictor [2021] WASC 197 (Rictor).
[3] The State of Western Australia v Rictor [No 2] [2021] WASC 437 (Rictor [No 2]).
The alleged facts of the State's case are outlined in the Amended Statement of Material Facts filed by the State, and were set out in both Rictor[4] and Rictor [No 2].[5] I reproduce them for ease of reference:[6]
[4] Rictor [5].
[5] Rictor [No 2] [4].
[6] The spelling of Tjuntjuntjara has been changed to the correct spelling, but otherwise the content of what follows is as set out in both of the previous decisions.
1.The deceased in this matter is Ms Marie Shelley Watson, born 6 July 1984.
2.The deceased and the accused had been in a domestic relationship and married according to Aboriginal lore since approximately 2002, and they lived together for much of that time.
3.As at November 2019, the deceased was 35 years of age and the accused was 37 years of age. The pair lived together at the Tjuntjuntjara Aboriginal Community located approximately 700 kilometres east-north-east of Kalgoorlie.
4.The Tjuntjuntjara Aboriginal Community is a 'dry' community and, according to local by-laws, alcohol cannot be brought into the community or consumed on community land without permission.
5.On Saturday, 9 November 2019 the deceased and the accused travelled together from Tjuntjuntjara to a place known as Boulder Camp, on the outskirts of Kalgoorlie.
6.Their means of transport was the accused's white Mitsubishi utility, registration number KBC399L, which the accused drove, with the deceased in the front passenger seat.
7.The pair arrived at Boulder Camp late on the Saturday afternoon. They were greeted by relatives and friends. They began drinking alcohol with these persons, consuming considerable quantities, and the accused also smoked some cannabis.
8.One of the persons whom the accused and the deceased socialised with that night was a male relative of the accused named William Rictor. William and his wife, Ms Katie Brown, had been staying at Boulder Camp for some time, and were looking to go back to Tjuntjuntjara.
9.Over the course of the Saturday evening periodic arguments developed between the accused and the deceased. These were mostly verbal arguments, although there may have been some physical component.
10.Later in the night, the various persons present became more intoxicated and gradually went off to sleep, either staying under the shelters at Boulder Camp or camping out in the open. William Rictor camped that night together with his wife, Katie Brown.
11.The accused and the deceased drove away from Boulder Camp, in the accused's Mitsubishi ute, with him driving and the deceased in the front passenger seat, so that they could camp in another location, albeit one nearby and reasonably proximate to Boulder Camp.
12.Precisely where the pair went, or what happened after that, is unknown.
13.Early the next morning, at some time after sunrise, the accused returned to Boulder Camp, having driven there in his Mitsubishi ute. The accused was alone; the deceased was not with him.
14.The accused spoke … discreetly with his relative, William Rictor, and told him that he had killed his wife. The accused asked William Rictor to come with him for a drive so that he could show him the body.
15.The pair then drove to a remote bush location, known as Lakewood, approximately 7.5 kilometres from Boulder Camp. The accused pointed, from a distance, to a bush area to indicate the area where he had left the deceased. The pair did not drive up close to the body, or get out of the ute, and William Rictor did not directly see or handle the body.
16.The accused then drove William Rictor back to Boulder Camp. He dropped William off some distance away and instructed him to tell others about the passing of the deceased.
17.William Rictor notified others at Boulder Camp of the passing of the deceased. Soon after that, police were called and attended at Boulder Camp. William Rictor then travelled with police to the bush location at Lakewood, pointing out to them where the accused said that he had left the deceased.
18.Police then found the deceased lying on her back and wrapped in bedding material under a small shrub.
19.Ambulance paramedics attended the scene and certified that life was extinct.
20.Meanwhile, the accused had driven off towards Tjuntjuntjara. Along the way, he drove through the abandoned Coonana (Aboriginal) Community. At that location, he set alight an old vehicle belonging to an Aunty of the deceased.
21.After reaching Tjuntjuntjara, the accused lived in the bush near to the community for approximately 7 days. He actively evaded police over that time, until such time as he was apprehended and arrested. During this period of time, the accused also incinerated his Mitsubishi ute. The interior of the vehicle, the tray of the ute and the majority of the tyres were badly damaged in the fire, meaning forensic evidence could not be recovered.
22.On 17 November 2019, the accused was arrested at Tjuntjuntjara and conveyed to Perth. Homicide Squad Detectives interviewed the accused, but he exercised his right to silence and declined to answer police questions. He was subsequently charged with murder.
23.Other than a small empty juice carton (see photograph at BP13), which was later forensically analysed and found to contain DNA matching the reference DNA profiles of the accused, the deceased and William Rictor, there were no weapons or other items of interest found at this bush location. Nor were there any signs of a struggle at this location. There were vehicle tyre marks leading to and from the deceased's body, however, for various reasons, and in large part due to the incineration of the accused's Mitsubishi utility vehicle, police tyre experts were unable to conduct any useful comparison between the tyres on the Mitsubishi and those observed at the location where the deceased was found.
24.A post-mortem examination was later performed. This revealed that the deceased had multiple blunt force injuries to the head, trunk and limbs, including scalp lacerations, a skull fracture, left forearm fracture and multiple rib fractures. There were also significant injuries to her genitals, including a vaginal perforation, which was likely inflicted after her death. There was no evidence found of significant underlying natural disease in the deceased, who at the time of her death was 35 years of age. Following the final microscopic report from a neuropathologist on the brain tissue of the deceased, the forensic pathologist concluded that the cause of death was 'bronchopneumonia complicating multiple injuries in a woman with acute alcohol effect'.
25.Subsequent DNA examination of the internal and external samples taken from the deceased's body, along with her clothing and bedding, did not reveal DNA profiles matching anyone other than her own reference profile and that of the accused. No spermatozoa were observed under the microscope in any of the intimate samples. Fingernail scrapings and swabs were taken from the hands and palms of William Rictor soon after the police became involved in an effort to establish whether he had had any contact with the deceased; these were later submitted for DNA analysis, and the deceased's DNA profile was not recovered (see BP384-396).
As Derrick J noted in Rictor [No 2], given the nature and extent of the deceased's injuries, it is the State's case that the deceased was subjected to a sustained assault by a person who used a weapon.[7]
Issues at trial
[7] Rictor [No 2] [5].
As Derrick J also noted in Rictor [No 2], the accused does not dispute that someone unlawfully assaulted the deceased with a weapon. The main issue at trial will be whether he was the person who inflicted the unlawful assault, although it appears that causation (that is, whether the assault substantially contributed to the deceased's death) is also likely to be in issue.[8]
Rulings in Rictor
[8] Rictor [No 2] [6].
In Rictor, McGrath J ruled that the State may adduce at trial, as relationship evidence under s 31A(1) of the Evidence Act 1906 (WA), evidence of the accused's prior convictions, and the facts pertaining to those convictions, in respect of violent offences committed by the accused against the deceased on four occasions from 2008 to 2014. His Honour found that the evidence had significant probative value in the context of the State's case that the relationship between the accused and the deceased was marked by alcohol abuse and the escalation of disputes into violence, and that the accused was prepared to inflict violence on the deceased causing bodily injury, including through the use of weapons.[9] There were some issues in respect of the facts that the State could put before the jury as agreed facts in relation to the prior offences. Those issues were largely resolved by the time of the applications before Derrick J in November 2021 by the production of a 'prior convictions document'. Subject to objections to portions of the document, which Derrick J dealt with in Rictor [No 2], the accused did not object to the document being read into evidence at his trial in order to prove the fact of his convictions for, and the facts of, the prior offences.[10]
Rulings in Rictor [No 2]
[9] Rictor [50].
[10] Rictor [No 2] [59].
In Rictor [No 2], Derrick J made the following rulings, relevant for present purposes:
(1)Both statements made to the police by a deceased witness, Jeremy Currie, are to be admitted into evidence at the accused's trial, with edits.[11] There had been no objection by the accused to the first statement being admitted, but the accused had objected to the second statement being admitted. The first statement concerns observations made by Mr Currie of the accused and the deceased, and other persons who were with them, on 9 November 2019, and the way in which he and others at the Boulder Camp learned of the deceased's death the following day.[12] The second statement concerns Mr Currie seeing the accused picking up William Rictor[13] and leaving Boulder Camp in a vehicle on the morning of 10 November 2019, and returning later that morning.[14] It also refers to a statement made by the accused to Mr Currie that the deceased was in town, when asked where she was.[15]
(2)Evidence to be given by the witness Annette Paul (Ms Paul) about three separate occasions after June 2011, and over a period of about two and a half years, on which she saw the accused be violent towards the deceased, by striking her, while they were in a relationship, may be adduced by the State at the accused's trial as relationship evidence under s 31A of the Evidence Act.[16] The evidence was considered to have significant probative value when considered in conjunction with the evidence of the prior offences on which McGrath J had ruled.
(3)Provided that a further statement was obtained from Ms Paul to establish that she was qualified to give evidence about the relevant cultural practice, the State would be permitted to adduce evidence from Ms Paul that the accused's burning of a blue Commodore sedan, which belonged to the deceased's aunty, on 10 November 2019 at the Coonana Community,[17] was consistent with the cultural practice in the Pitjantjatjara community of burning a vehicle in which a deceased person had been.[18] Subject to Ms Paul being 'qualified' as stated, His Honour dismissed the accused's application to exclude the evidence.[19]
(4)The State is permitted to rely on evidence of the accused returning to Tjuntjuntjara on 10 November 2019 as alleged post-offence conduct, that is, evidence of the accused's guilt of the charged offence, in that it would be reasonably open to a jury to find that the accused's alleged conduct revealed a consciousness of guilt.[20] His Honour dismissed the accused's application to exclude the evidence.[21]
(5)The State is permitted to adduce evidence of the alleged post-offence conduct of the accused in setting fire to the Mitsubishi vehicle[22] as evidence capable of revealing a consciousness of guilt of the charged offence, subject to the State adducing evidence capable of proving that the Mitsubishi was the vehicle that the accused drove from Tjuntjuntjara to Boulder, and from Boulder to Tjuntjuntjara.[23] His Honour dismissed the accused's application to exclude the evidence that he incinerated the Mitsubishi vehicle.
[11] Rictor [No 2] [22] - [33], [260.1].
[12] Prosecution Brief (PB) 36 - 40.
[13] Referred to by Mr Currie as 'Noely' in his first statement (PB 38), and 'Noelly' in his second statement (PB 462). See also statement of Katie Wanpiti Brown dated 12 August 2020, in which she says she calls William Rictor 'Noely' or 'Willy': PB 16.
[14] PB 462 - 464.
[15] PB 463 [10].
[16] Rictor [No 2] [76] ‑ [88], [260.3]. The evidence was admitted subject to two qualifications, which are not relevant for present purposes.
[17] See [11.20] above.
[18] Rictor [No 2] [171] ‑ [174].
[19] Rictor [No 2] [260.8].
[20] Rictor [No 2] [190] ‑ [191].
[21] Rictor [No 2] [260.9].
[22] See [11.21] above.
[23] Rictor [No 2] [199] ‑ [201].
In the present proceedings, senior counsel for the accused indicated that the issue in item (3) above concerning the 'cultural practice' evidence to be given by Ms Paul had 'dissolved', having regard to the contents of a supplementary statement signed by Ms Paul on 24 January 2022, which dealt with the issue.[24] The accused now accepts that, by the supplementary statement, 'Ms Paul has verified the cultural practices in question that she asserts', so that matter is no longer in issue.[25]
[24] ts 306.
[25] ts 306.
Notwithstanding the resolution of that issue, it is instructive to have regard to the basis on which Derrick J ruled that the evidence that the accused incinerated the blue Commodore vehicle is admissible. The purpose for which the State is permitted to adduce the evidence, as identified by his Honour, is broadly related to the purpose for which the State proposes to adduce the various items of evidence in the first category of evidence in issue in this hearing. His Honour identified the purpose for which the State intends to rely on the evidence as follows:[26]
[T]he State intends to adduce the above referred to evidence of Ms Paul relating to the burning of the blue car on the basis that it is evidence of the accused's guilt for the unlawful killing of the deceased because it goes to prove that at the time that the accused arrived at Coonana early in the morning on 10 November 2019 he knew that the deceased was dead. That is, the State's contention is that the fact that Pitjantjatjara people have a cultural practice of burning items of property, including cars, associated with deceased people when considered together with the fact that the accused, very shortly after the deceased's death, burnt a vehicle which the deceased had been in many times, provides a basis for inferring that the accused knew, at the time of burning the vehicle, that the deceased was dead. The State submits that if the jury finds that the accused knew that the deceased was dead at the time that he arrived at Coonana this is a finding that will support the drawing of the inference that it was the accused who killed the deceased.
[26] Rictor [No 2] [167].
In relation to the evidence the subject of item (5) above, the purpose for which the State intends to adduce the evidence is different, but it is part of the evidentiary matrix against which the issues in the present hearing need to be determined. Derrick J concluded as follows, subject to the State adducing evidence in admissible form at trial capable of proving that the vehicle that the accused used to drive from Tjuntjuntjara to Boulder, and from Boulder to Tjuntjuntjara, was the Mitsubishi:[27]
In my opinion, if the jury finds that the vehicle that the accused used to drive from Tjuntjuntjara to Boulder and from Boulder to Tjuntjuntjara was the Mitsubishi, it will be reasonably open for them to also find that the accused incinerated the Mitsubishi to prevent the recovery from the vehicle of any forensic evidence which might establish that the vehicle had been used to move the deceased's body after her death, and also to prevent any forensic evidence recovered from where the deceased was found being used to link the vehicle to the movement of her body. If the jury makes these findings it will also be open to them to make the following findings:
1.The accused's conduct in incinerating the Mitsubishi related to a material issue, specifically the death of the deceased, and revealed knowledge of the deceased's murder or at least of some aspect of the murder; and
2.The accused's motive for incinerating the Mitsubishi was a realisation of guilt for the charged offence.
[27] Rictor [No 2] [200].
The first category of evidence in issue in this hearing
The first category of evidence in issue in this hearing is comprised of the evidence intended to be adduced by the State from three witnesses:
(1)Fiona Skye Pemberton, who lived and worked at the Tjuntjuntjara Community;[28]
(2)James Luke Townley, who was employed at the Tjuntjuntjara Community;[29] and
(3)Moray Warrwick Ralph, who also lived and worked at the Tjuntjuntjara Community.[30]
[28] PB 65 - 72, 498 - 501.
[29] PB 84 - 87.
[30] PB 73 - 83.
The evidence of Ms Pemberton is contained in two statements, dated 12 November 2019 and 12 July 2021 respectively. The evidence of Mr Townley is contained in a statement dated 13 November 2019. The statement of Mr Ralph is contained in two statements, dated 12 November 2019 and 18 June 2021.
Apart from some background information, which I will identify below, the State seeks to adduce each of the items of evidence in issue as evidence of alleged post-offence conduct by the accused, from which, in combination with other evidence, the jury will be invited to infer the accused's guilt of the offence charged.
The accused objects to all of the evidence contained in the statements of Ms Pemberton and Mr Townley, and part of the evidence in Mr Ralph's statements, which I will particularise later. The basis of the objection to the proposed evidence of Ms Pemberton and Mr Townley is that it is irrelevant, in that it is not probative of any fact in issue and, in some respects would give rise to impermissible prejudice.[31] More specifically, the accused objects to specific aspects of the evidence of all three witnesses, which the State relies on as post-offence conduct from which the accused's guilt of the offence could be inferred. The accused objects to that evidence on the basis that it does not meet the conditions of admissibility as post-offence conduct from which guilt could be inferred. In summary, that evidence is:
(a)Evidence expected to be given by Ms Pemberton of an incident on Monday, 11 November 2019, at the Tjuntjuntjara Community, during which the accused pulled up a vehicle he was driving behind Ms Pemberton's vehicle at her place of work and tried to push her vehicle forward with his vehicle;
(b)Evidence expected to be given by Mr Townley that he saw the accused driving erratically through the Tjuntjuntjara Community in his white ute on 11 November 2019;
(c)Evidence expected to be given by Mr Townley that the accused attended at his place around 7 pm the same day demanding tobacco; and
(d)Evidence expected to be given by Mr Ralph of an incident late in the afternoon of 11 November 2019 (the day before his statement), at the Tjuntjuntjara Community, during which he saw the accused's vehicle pushing Ms Pemberton's car out the front of their office, although he did not see who the driver was.[32]
[31] See Defence Outline No 4 [11] - [13].
[32] See Defence Outline No 4 [14] - [16].
In the document produced by the State at the hearing, listing the issues and objections, it conceded that several paragraphs in Ms Pemberton's first statement are not admissible and agreed not to adduce the evidence in a number of other paragraphs in the statements of the three witnesses, to which the accused had objected. As I noted earlier, this narrowed the issues at the hearing on 1 February 2022.
Other issues resolved at the pre-trial hearing
Prior to that hearing, the accused had also objected to part of the evidence of the witness Kym Coleman, who describes himself as the accused's cousin, and states that the deceased was his niece.[33] It is expected that he would give evidence in accordance with his statement to the police, dated 17 June 2021, that the accused made statements and engaged in conduct that are said to constitute both express and implied admissions. The express admissions are said to be constituted by the accused answering, while crying, that he did not mean to do it, when Mr Coleman asked him what had happened to the deceased and how she had been killed.[34] Later, Mr Coleman saw the accused hugging his brother, Ian Rictor, while crying, when Ian Rictor told the accused that he (the accused) would have to receive tribal punishment, and that Ian Rictor would receive the punishment as well to help the accused. The accused's conduct is alleged to constitute an implied admission. The objection was to the discussion concerning tribal punishment, and the accused's conduct during that discussion. That objection was not pursued at the hearing.[35] Consequently, a ruling is not required in respect of that evidence.
[33] PB 457.
[34] PB 458 ‑ 459 [23] ‑ [24].
[35] ts 375.
The accused had also objected to the evidence of the witness Katie Brown in relation to cultural practice, insofar as it relates to the possibility that William Rictor will be subject to tribal punishment. At the hearing, the State indicated that it did not intend to adduce that evidence, provided the defence did not seek to adduce evidence that William Rictor may be subject to tribal punishment. Consequently, a ruling is not required in respect of Ms Brown's evidence.
Two other matters were raised, but resolved at the hearing without the need for a ruling. The first concerned the reading into evidence at trial of the witness statement of Ms Sylvia Thomas, who is deceased. It is sufficient to note that, while both parties now agree that the statement should be read into evidence, there may be a dispute about the extent of the contents to be read in, but both parties agreed that this issue should be determined by the trial judge, as its resolution may depend on the conduct of the defence case.
The second matter concerned the appropriateness of Ms Yorkshire-Selby acting as an interpreter for some prosecution witnesses at the trial. The State indicated during the hearing, after Ms Yorkshire-Selby gave evidence, that it would no longer seek to use her as an interpreter for prosecution witnesses during the trial.
Legal principles
It is appropriate to identify the relevant legal principles before dealing with the objections.
The principles concerning post-offence conduct were summarised by Derrick J in Rictor [No 2] at [178] to [180], for which I am indebted. For convenience, those principles are set out, as stated by his Honour, in the following three paragraphs.
Evidence of post-offence conduct is circumstantial evidence. Save in a case in which the evidence of post-offence conduct is an indispensable link in the chain of reasoning on which proof of guilt depends, a trier of fact may accept and act upon evidence of an accused's post-offence conduct if the conduct constitutes an implied admission against interest without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied there is no other explanation for the post-offence conduct that is reasonably open on the facts).[36] So, ordinarily an accused's post-offence conduct that constitutes an implied admission against interest may be considered by a trier of fact together with other evidence (direct and circumstantial) without it being necessary for the prosecution to prove beyond reasonable doubt that the post-offence conduct demonstrates a consciousness of guilt, unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning which proof of guilt depends.[37] Ordinarily, an accused's post-offence conduct is merely part of the evidence as a whole which the trier of fact must consider in determining if the prosecution has proved its case against an accused beyond reasonable doubt.[38]
[36] Allami v The State of Western Australia [2013] WASCA 230 (Allami) [81]; Dodd v The State of Western Australia [2014] WASCA 13 (Dodd) [103], [143]; Hawke v The State of Western Australia [2017] WASCA 40 (Hawke) [44], [156]; Rajakovic v The State of Western Australia [2020] WASCA 98 (Rajakovic) [103].
[37] Dodd [104], [143]; Hawke [45], [156].
[38] Dodd [104], [143]; Hawke [45], [156].
In all cases it is for the judge to determine if evidence of post-offence conduct, taken in conjunction with any other specified acts, facts and circumstances, is capable of constituting evidence of consciousness of guilt for the purposes of an issue.[39]
[39] Rajakovic [93] - [95].
In Rictor [No 2],[40] Derrick J also noted that, in order for evidence of post-offence conduct, taken in conjunction with any specified acts, facts and circumstances, to be capable of constituting evidence of consciousness of guilt, the evidence must be capable of establishing the following:[41]
(a)The conduct related to a material issue and revealed knowledge of the charged offence or some aspect of it; and
(b)The motive of the accused for engaging in the conduct was a realisation of guilt for the charged offence.
[40] Rictor [No 2] [180].
[41] Newhill v The State of Western Australia [No 2] [2015] WASCA 121 [63] - [71]. I note that his Honour also cited passages from other authorities, but, upon review of those passages, it appears to me that they do not stand for the propositions then stated. Rather, they address other aspects of the law concerning evidence of post-offence conduct, including the fact that post-offence conduct may be admissible for reasons other than to prove consciousness of guilt (that is, as an implied admission): see, for instance, Rajakovic [98] - [99].
I note that the requirements identified in the preceding paragraph have been articulated by courts in the context of dealing with post-offence conduct consisting of lies (referred to as Edwards lies[42]). In that context, it is meaningful to speak of a lie relating to a material issue. That language may seem less apt when dealing with other post-offence conduct, such as flight or evasion of the police. The issue to which such conduct relates is intrinsically linked to the matter sought to be proved, namely a realisation of guilt for the charged offence. It might be said that the material issue is the identity of the offender, although, again, that tends to conflate the material issue with the other criteria. This difficulty does not detract from the fact that various types of post-offence conduct that are not analogous to lies have been found to be capable of establishing consciousness of guilt.
[42] See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
The accused's submissions in this case tended to confine the categories of admissible post-offence conduct to those in which the conduct has involved a degree of deliberation connected with the realisation of guilt, such as conduct designed to conceal the accused's involvement in an offence (for instance, concealing or disposing of evidence) or to evade apprehension. Although the phrase 'consciousness of guilt' tends to imply a degree of self-reflection, the word 'consciousness' is defined to include 'inward sensibility of something' and the 'thoughts and feelings, collectively, of an individual'.[43] Therefore, while some post-offence conduct, other than lies, may involve a deliberative process, as submitted by the accused, there may be cases in which post-offence conduct is capable of establishing a consciousness of guilt without the accused having deliberated about his or her conduct.
[43] Macquarie Dictionary, 6th Ed.
In Cross on Evidence,[44] the author refers to numerous forms of conduct that have been held to be capable of showing a consciousness of guilt, in criminal and civil proceedings, many of which would involve deliberation, but some of which would not. An example of the latter is a case, Helton v Allen,[45] in which the person's conduct included 'noisy displays of emotion and grief caused by great stress and a condition of nervous and emotional instability', which could have been accounted for by fear, remorse and excitement relevant to the matter in issue.[46] That case concerned civil proceedings (before a judge and jury) by the mother of a deceased woman, who had died of poisoning, against the executor and beneficiary of the deceased's will, Mr Helton, for a declaration that Mr Helton was not entitled to hold the office of executor or take any benefit under the will, on the ground that he had unlawfully killed the deceased. In earlier criminal proceedings, Mr Helton had been acquitted of the murder of the deceased. The civil suit succeeded, and Mr Helton's appeal to the Full Court of the Supreme Court of Queensland failed. His appeal to the High Court succeeded on the basis of error in the trial judge's directions to the jury, even though the court considered that the circumstantial evidence was sufficient to support the jury's finding. In their joint judgment, Dixon, Evatt and McTiernan JJ referred to the evidence relied on by the plaintiff at trial, including the conduct described above, which was relied on as evidence of Mr Helton's consciousness of guilt in respect of the unlawful killing of the deceased. Their Honours considered that Mr Helton's 'condition of nervous and emotional instability … might be accounted for no less plausibly by fear, remorse and excitement, than by natural grief'.[47] It is implicit in the judgment that it was open to the jury to rely on the evidence as indicating a guilty mind (giving rise to fear, remorse and excitement) in respect of the killing of the deceased, and that such evidence was properly part of the circumstantial case against Mr Helton.
[44] Heydon JD, Cross on Evidence (13th Australian Edition, 2021) (Cross on Evidence), 1300 - 1302 [33435].
[45] Helton v Allen (1940) 63 CLR 691 (Helton v Allen).
[46] Cross on Evidence, 1300 [33435], referring to Helton v Allen, 708.
[47] Helton v Allen, 708. It is tolerably clear that 'fear' in this context was a reference to fear of being discovered. It should also be noted that Mr Helton's alleged conduct included statements such as, 'Oh. This is terrible. Don't think I did this' and 'I don't want you people to think I am implicated. It looks bad for me as I am sole executor.' It was also alleged that, when it was announced there would be a post-mortem, he 'sprung up and said that he would not stand for it, he had her will in his pocket and he had full claim to her body'.
In such a case, it may be difficult to identify the material issue to which the conduct relates, but the conduct may nonetheless be capable of revealing a consciousness of guilt in respect of the offence charged. Further, in my opinion, where the post-offence conduct is of a kind that reflects nervousness or emotional instability, the requirement concerning motive for the conduct directs attention to the reason or explanation for the conduct, rather than any deliberative process.
The critical question is whether the conduct is capable of revealing an awareness of guilt of the alleged crime. The possibility of other explanations for the conduct is a matter for the jury to consider, having regard to all the evidence, and applying the directions given by the trial judge as to the use that can be made of the evidence of post-offence conduct.
In the present case, senior counsel for the accused placed emphasis on the principles discussed in R vCiantar[48] (Ciantar) concerning post-offence conduct going to consciousness of guilt. The relevant passages in Ciantar were considered by Buss JA (Newnes JA agreeing) in Dodd.[49] His Honour summarised the issue in Ciantar as follows:[50]
In Ciantar, a motor vehicle driven by the offender was involved in a collision. He fled from the accident scene. The offender was charged with and convicted, after a trial, of culpable driving causing death. The Court of Appeal of Victoria considered whether the offender's flight could be used as evidence of consciousness of guilt of culpable driving causing death or whether the evidence in question was neutral in that it was equally consistent with the hypothesis that the offender was conscious of having committed some lesser offence, for example, failing to render assistance.
[48] R vCiantar [2006] VSCA 263; (2006) 16 VR 26 [81] - [85] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA).
[49] Dodd [109] - [113]. They were also considered by Buss JA (Hall J agreeing) in similar terms in Allami, at [94] - [97].
[50] Dodd [109].
His Honour set out the relevant passage from the joint judgment in Ciantar as follows, adding the emphasis on the last two sentences:[51]
We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases (cf Woon v R (1964) 109 CLR 529 at 541-2).
[51] Ciantar [40]; Dodd [110].
As Buss JA pointed out in Dodd, the court in Ciantar subsequently developed the reasoning in the latter passage by reference to murder cases where other evidence (apart from post-offence conduct) implicating the accused in the primary count laid by the prosecution is of greater or lesser strength, as follows:[52]
Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple count presentment, or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.
But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.
Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused's words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent (see, for example, R v Burrows [(2003) 140 A Crim R 533] at 539, [27] per Charles JA). And comparable reasoning is equally applicable in trials for other offences.
[52] Ciantar [65] - [67]; Dodd [111].
Finally, Buss JA noted in Dodd that the court had concluded in Ciantar that 'where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence'.[53]
[53] Ciantar [72]; Dodd [112].
The foregoing analysis of Ciantar is apt in this case.
Further, having regard to the accused's general objection to the evidence in issue on the basis that it is not relevant, it is apt to consider Gleeson CJ's elucidation of the principles concerning relevance in HML v The Queen,[54] where, having noted that evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings,[55] his Honour said:[56]
Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.
[54] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [5] - [6].
[55] See also Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50].
[56] HML v The Queen [6].
His Honour then referred to an example concerning the evidence of a female complainant in a child sex abuse case, in which a history of prior sexual activity was necessary to provide context for the complainant's reaction to the alleged sexual abuse on the specific occasion, the subject of the charge, and to avoid what might otherwise have been a misleading and unfair impression. His Honour then continued:[57]
Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In R v Boardman ([1975] AC 421 at 456) in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method.
[57] HML v The Queen [6].
R v Boardman was also a case involving sexual offending, but, in my opinion, the common sense considerations to which Gleeson CJ was referring in HML v The Queen apply in any case where context may be necessary to understand competing versions of events or a person's conduct.
Finally, it is apt to note that, in Festa v The Queen,[58] Gleeson CJ emphasised the distinction between admissibility of evidence that has some probative value and the capacity of that evidence to establish guilt:[59]
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is 'weak', and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility.
[58] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 (Festa).
[59] Festa [14], referred to by Miller JA in Dair v The State of Western Australia [2008] WASCA 72 [149].
General matters concerning the evidence in issue
It is convenient to identify the evidence that the State intends to adduce by reference to the contents of the witness's statement in each case, as that was the way the matter was argued. It is assumed the witness will give evidence in accordance with the contents of her or his statement, subject to changes reflecting the passage of time (for instance, in relation to the witness's age, or a change in employment or personal circumstances, or to put in the past tense certain matters expressed in the present tense).
It is not necessary to identify the evidence that the State does not intend to adduce from the witness in each case. It is sufficient to note that, in general terms, it is background evidence that is irrelevant or otherwise inadmissible, and evidence consisting of hearsay or inadmissible opinion. The evidence that will not be adduced is contained in the paragraphs that have been omitted from the witnesses' statements reproduced below.
Part of the accused's argument in respect of some of the evidence in issue is that the evidence is not necessary, because the facts sought to be proved by the State will be established by other evidence. On one view, the accused's argument seems to suggest that evidence is no longer relevant if the fact of which it is probative has been proved by other evidence. That argument is not tenable. Evidence does not cease to have the capacity to rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue because there is other evidence that also has that capacity. If the applicant's argument is directed at discretionary exclusion of otherwise relevant and admissible evidence, then, in my opinion, the fact that a fact may be proved by other evidence is not a proper basis for excluding the evidence in issue, unless the repetition of evidence in relation to a particular fact becomes unreasonable. The general rule is that the prosecution should call '[a]ll available witnesses … whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based'.[60]
[60] Whitehorn v R (1983) 152 CLR 657, 674 (Dawson J).
If the proof of a fact is relevant to the process of reasoning upon which the State relies to prove its case, the State is entitled to adduce evidence about that fact from more than one witness. While the evidence of a witness may not be necessary to unfold the narrative, if that narrative merges from the evidence of other witnesses, it may be necessary to give a complete account of the events. There may be differences in details or nuances between the witnesses. Even if that is not the case, the evidence may be necessary to provide context for other evidence to be given by one or more of the witnesses. The weight to be given to such matters, in considering a submission that the repetition of evidence is unreasonable, is best judged in the context of a trial as it unfolds.
In my opinion, if the evidence the State intends to adduce is relevant, and the discretion to exclude is not engaged on the basis that the evidence gives rise to impermissible prejudice that outweighs its probative value, then the evidence should be admitted.
Admissibility of Fiona Pemberton's evidence
Evidence
At the start of the pre-trial hearing, the State indicated that it intended to adduce the following evidence from Ms Pemberton, as set out in her first statement, dated 12 November 2019:[61]
[61] Paragraph numbering is as in the statement.
1.I am 50 years of age and I live in Adelaide.
2.Due to my work commitments, I also reside at the Tjuntjuntjara Community, Plumridge Lakes.
3.I come out to the community once every three months. I am here for about a month at a time.
4.My role in the community is Acting Manager for the Community Services.
5.I have been in the community on and off since 1997.
6.I know a person called Damian RICTOR. He is part of the community. I have known him since 1997 when he was a teenager.
7.He is in a relationship with a woman called Sally Marie WATSON. I knew her as also as Shelley and Marie. Sally would go by all those names. In fact of recent times we have been calling her Marie.
8.Sally and Damian have been together for many years. I would say over ten years.
9.Damian regularly does work around the community and is paid for those services.
10.He is one of the staff.
…
15.Sally and Damian lived together at Lot 1.
16.Damian was working on Wednesday 6 November 2019. He was working on the excavator and assisting Telstra.
17.On Thursday 7 November 2019, Damian went to Ilkurlka to deliver a front-end loader for some miners working there.
18.He returned on 8 November 2019 after lunch.
19.On Saturday 9 November 2019, Damian came to me around 10 am. He was looking for a loan.
20.He said, "I need to get to town to pick up Noeli RICTOR and Katie BROWN. They are stuck there."
21.I said, "Sorry I can't help you. I can't do book up."
22.By book up means, giving them a loan/advances on their pays owed to them.
23.I said, "I don't have the authority. Go see Moray if you are desperate."
24.Damian walked off.
25.I saw Meredith GREEN later in the day.
…
28.I did not see Damian and Marie leaving town.
…
51.I did not see Damian on Sunday night.
52.On Sunday night, I had Keegan and Marlene turn up.
…
58.I could hear a vehicle driving crazy in the distance. It sounded like it was near the airport. I do not go out there as it is the "Men's area."
…
63.It was not until late on Monday afternoon at around 4.30 pm when I saw Damian for the first time.
64.I saw his vehicle driving slowly from the airport direction. He then pulled up behind my vehicle and tried to push my vehicle. However, because my car was in gear and hand brake on, the vehicle only moved about 1.5 metres forward before the vehicle started to lift off the ground. His vehicle was also lifting.
65.It was at the point Damian stopped doing this and reversed his vehicle back.
66.He drove off in a northerly direction and out of the community.
…
74.I have not seen Damian since.
During the hearing, the State conceded that paragraph 58 carried no probative value, as Mr Pemberton did not see the vehicle or who was driving.[62] Therefore, that evidence will not be adduced. The State intends to adduce the balance of the evidence set out above.
[62] ts 317.
At the start of the pre-trial hearing, the State indicated that it intended to adduce the following evidence from Ms Pemberton, set out in her second statement, dated 12 July 2021:[63]
[63] Paragraph numbering is as in the statement.
3.When Damian referred to "town", he meant Kalgoorlie.
4.It takes about 8 to 9 hours to go from Tjunjuntjara (sic) community to Kalgoorlie.
5.Before lunch on 10 November 2019, I had been informed that Sally has died.
6.The women that I was with were crying and mourning on the morning of 10 November 2019 after our phone call to find out about what was the status of Sally.
7.The whole community pretty much knew by the end of 10 November 2019 that Sally had died.
8.All I heard on the evening of 10 November 2019 after dinner, so after 5.45 pm, is a car revving in the distance.
9.I did not see who was doing this.
…
11.After my direct dealings with Damian on 11 November 2019 due to him trying to push my car up, I did not see him at all until 14 November 2019.
…
14.On the morning of 14 November 2019, at about 6.30 am, I saw Damian.
15.I was driving a few women to town from the community, and we were only 5 kms outside of town when I saw Damian driving in his ute and he cut across us on one of the bush tracks. I did not say anything to him, and he did not say anything to me.
During the hearing, the State conceded that the contents of paragraphs 6 to 9 are irrelevant, except to the extent that it was known within the community by the end of 10 November 2019 that the deceased had died. The incident concerning the vehicle revving in the distance cannot be linked to the accused and, therefore, is irrelevant. The State intends to adduce evidence as set out in the balance of Ms Pemberton's second statement.
At the pre-trial hearing, senior counsel for the accused said the accused does not object to the contents of paragraphs 14 and 15 of Ms Pemberton's second statement being adduced. The objection is to the reference in paragraph 11 concerning the accused pushing Ms Pemberton's vehicle with his vehicle. The admissibility of that evidence will be governed by my ruling in respect of the admissibility of the evidence set out in paragraphs 63 to 66 of Ms Pemberton's first statement, which deal with the same incident. Accordingly, the submissions to which I will refer in dealing with the first statement apply in relation to paragraph 11 of the second statement and need not be repeated in the latter context.
The State's submissions - Ms Pemberton's first statement
The State submits that the evidence in Ms Pemberton's statements, as set out above, is relevant and admissible for the following reasons:
(1)The background evidence up to paragraph 15 is relevant to establishing the nature of the accused's relationship with the deceased, in particular that they lived together within the community and were in a de facto relationship.[64]
(2)While the State's case could be presented without the evidence in paragraphs 16 to 25 and 28, the circumstances in which the accused left Tjuntjuntjara to travel to Kalgoorlie on or around 9 November 2019, and his state of mind and behaviour during that period, are relevant to assessing the accused's behaviour before the alleged offence, which may be compared with his subsequent behaviour.[65] The contrast is relevant to assessing the significance of the alleged post-offence conduct.
(3)The evidence in paragraph 20, which relates to the accused intending to pick up William Rictor and his partner, Ms Brown, because they were stuck in town, is relevant because it tends to establish that William Rictor did not have access to a vehicle while he was at Boulder Camp, which can rationally affect the jury's assessment, directly or indirectly, of the probability that it was the accused, and not William Rictor, who drove the deceased seven and a half kilometres away from Boulder Camp and was responsible for her death.[66] That assessment will be necessary in circumstances in which the defence case includes the hypothesis that William Rictor may have been responsible for the deceased's death.
(4)The evidence in paragraphs 51 to 52 is relevant as part of the context in which the jury will be required to assess the State's allegation that the accused engaged in post-offence conduct consistent with his guilt of the offence charged. In this instance, the evidence is said to go to the issue of whether the accused went into hiding, and did so, knowing that he had murdered the deceased.
(5)The evidence in paragraphs 63 to 66 is relevant as post-offence conduct evincing a consciousness of guilt.
(6)The evidence in paragraph 74 is circumstantial evidence which is relevant to proving, indirectly, one aspect of the accused's post-offence conduct, namely that he went into hiding, although it does not prove that conduct directly.
[64] ts 312.
[65] ts 316.
[66] ts 312 - 313.
The State submits that there are three aspects to the accused's post-offence conduct that, in combination, evince a consciousness of guilt:
(i)his initial flight from Boulder Camp after revealing the deceased was dead;
(ii)his hiding outside of the Tjuntjuntjara community for a period of six to seven days, knowing that his wife was dead and that the police would be looking for him; and
(iii)his erratic behaviour, which may be regarded as evidence of a disturbed mind.
Ms Pemberton's evidence in paragraphs 63 to 66 of her first statement is said to be probative of the second and third aspects of the accused's post-offence conduct when considered with other evidence. The State submits that, to the extent that the accused entered the Tjuntjuntjara community during the period he is alleged to have been in hiding, the evidence shows that he acted erratically and left again, so that his presence in the community is not inconsistent with the allegation that he was in hiding. Further, it would be open to the jury to find that the accused's erratic behaviour was caused by his knowledge, at least, that his wife was dead. The State submits that, if the jury were to be satisfied that the accused was hiding with that knowledge, it would be open to the jury to find that his conduct demonstrated a consciousness of guilt in respect of the murder of the deceased.
Counsel for the State noted that, 'if there were no issue [with the allegation] that the accused was hiding or evading capture in the days following his [return] to Tjuntjuntjara', or with the allegation that 'he knew the deceased was dead and that he was somehow involved in it', the evidence sought to be adduced in respect of the accused's erratic behaviour would not be necessary.[67] However, there are no admissions to that effect, and it appears to be part of the defence case that William Rictor may have been responsible for the deceased's death, rather than the accused. Therefore, the State seeks to adduce the evidence.
The defence submissions - first witness statement
[67] ts 356.
As I noted earlier, the accused objects to the whole of Ms Pemberton's evidence on the basis that it is not probative of, or material to, any fact in issue. The accused also submits that Ms Pemberton's evidence is not necessary to establish background facts, as the jury will hear evidence about such facts from other witnesses. For reasons I have set out at [49] to [51] above, I do not accept that to be a proper basis for objection.
In relation to the evidence in paragraphs 15 to 24 of Ms Pemberton's first statement, the accused submits that the fact he intended to travel to Kalgoorlie, and did so, will not be in issue in the trial.[68] I note, however, that the purpose of the evidence identified by the State, as outlined in subparagraphs (2) and (3) of [57] above, concerns more than establishing the accused's intention to travel to Kalgoorlie and the fact he did so.
[68] ts 323.
In response to the State's argument outlined at [57(3)] above, the accused submits that there is no such thing as a 'defence case', and that the court ought to rule on the admissibility of evidence in accordance with the State's case,[69] that is, by reference to the facts alleged by the State, rather than by reference to what case the defence might put. No authority was cited for that proposition, which, in my view, is contrary to the general rule that the prosecution must present its case completely before the accused is called upon for his defence.[70] That general rule of practice and procedure, that the prosecution must not split its case, would generally prohibit the prosecution from adducing evidence after the accused is called upon for his defence 'if the occasion for calling the further evidence ought reasonably to have been foreseen'.[71] An obvious example where it is appropriate to speak of a 'defence case' that the prosecution is entitled to anticipate is where an accused person has given an account of relevant events in a police interview. That account might contain exculpatory statements as well as admissions. The prosecution would be obliged to adduce any evidence that might contradict the exculpatory statements as part of its case, before the accused is called upon for his defence. The prosecution would also be required to adduce as part of its case any evidence tending to rebut a hypothesis consistent with innocence that might suggest itself in other evidence adduced by the prosecution, as the occasion for calling the further evidence would be reasonably foreseen in such circumstances.
[69] ts 324.
[70] The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299 [28] - [29]; R v Chin [1985] HCA 35; (1985) 157 CLR 671, 676 - 677; Shaw v The Queen (1952) 85 CLR 365, 378 - 380, 383 - 384.
[71] R v Chin, 676.
Further, a 'defence case' might become apparent in other ways. In this case, counsel for the accused has made it clear in the pre-trial proceedings that an aspect of the defence case will be that William Rictor may be the person responsible for the deceased's death. Relevantly, William Rictor was a suspect at one stage, given that he was able to indicate to the police where the deceased was located. In those circumstances, the occasion for calling evidence that could rebut the hypothesis that William Rictor had opportunity to kill the deceased is reasonably foreseeable, and it is appropriate for the State to seek to adduce such evidence, irrespective of whether it is framed in terms of dealing with the defence case or addressing a hypothesis that might otherwise be open to the jury to consider.
The accused submits that paragraph 20 of Ms Pemberton's first statement is so marginal to the issue of whether William Rictor was involved in the death of the deceased, and, therefore, carries so little probative weight in rebutting that inference, that it should be found to be irrelevant.[72] With respect, the submission approaches the evidence in a piecemeal way, failing to have regard to its capacity, in the light of other evidence in the prosecution case, to have relevance in the way discussed in [43], [44] and [46] above. The fact that its probative value might be slight does not render the evidence inadmissible. The weight to be given to the evidence will be for the jury to assess.
[72] ts 325 - 326.
In relation to paragraphs 63 to 66 of Ms Pemberton's first statement, the accused's submission is that the incident in which the accused is alleged to have pushed Ms Pemberton's vehicle with his vehicle could not be regarded by a reasonable jury as being probative of a consciousness of guilt in respect of the offence charged,[73] so it is not admissible as relevant post-offence conduct. In essence, the accused's argument is that erratic behaviour does not equal a consciousness of guilt.[74] The accused submits that the alleged behaviour of ramming Ms Pemberton's vehicle does not bear a rational relationship to the alleged murder, and a jury could not infer reasonably that the accused behaved erratically because of a realisation of guilt of the offence charged.[75]
[73] ts 326.
[74] ts 326.
[75] ts 327 - 328.
Senior counsel for the accused noted that post-offence conduct evincing a consciousness of guilt usually involves conduct by which an accused person seeks to conceal their involvement in an offence.[76] While I did not understand senior counsel to suggest that the categories or types of relevant post-offence conduct are delimited in that way, the example was intended to underscore the accused's submission that the alleged conduct referred to by Ms Pemberton was too remote in character to be admissible as post-offence conduct (in the relevant sense).
[76] ts 329.
Further, adopting the language in Ciantar, senior counsel for the accused submitted that the conduct described by Ms Pemberton is 'intractably neutral' in terms of evincing a consciousness of guilt in respect of the crime of murder.[77]
[77] ts 331.
The accused submits that, if I were to rule that the evidence in paragraphs 63 to 66 of Ms Pemberton's first statement is admissible, then it should be excluded in the exercise of discretion on the ground that it is highly prejudicial, and the impermissible prejudice outweighs its probative value.
I note that the accused does not object to the evidence in paragraph 63 of Ms Pemberton's first statement, that the accused was present in the community at 4.30 pm on Monday, 11 November 2019, as his whereabouts and his movements are relevant more generally.[78]
Ruling
Ms Pemberton's first statement - up to paragraph 15
[78] ts 326.
I am satisfied that the evidence in Ms Pemberton's first statement, up to paragraph 15, is relevant to establishing the nature of the accused's relationship with the deceased. The accused's relationship with the deceased will be a relevant consideration in the jury's determination of whether the accused killed the deceased and, if so, whether he had an intention (at least) to cause the deceased an injury that, objectively, was life-threatening.[79] The fact that there may be other evidence tending to establish the nature of the accused's relationship with the deceased does not preclude this evidence from Ms Pemberton being admissible. Nor is there any basis for excluding it in the exercise of discretion. The evidence may be adduced by the State.
Ms Pemberton's first statement - paragraphs 16 - 25, 28
[79] Criminal Code s 279(1)(b).
The admissibility of the evidence set out in paragraphs 16 to 25 and 28 of Ms Pemberton's first statement, which concerns the accused's behaviour before he left Tjuntjuntjara to travel to Kalgoorlie, is linked to the admissibility of the evidence concerning the accused's behaviour after the deceased died.
I am satisfied that this aspect of Ms Pemberton's proposed evidence is relevant to establish the accused's state of mind and behaviour prior to travelling from Tjuntjuntjara to Kalgoorlie. If the jury is satisfied that, after the deceased's death, the accused was behaving erratically, the contrast between his behaviour (and, by inference, his state of mind) at that stage and his behaviour (and, by inference, his state of mind) in the period immediately before he travelled to Kalgoorlie will be relevant to the jury's assessment of whether the erratic behaviour was part of post-offence conduct evincing a consciousness of guilt in respect of murdering the deceased, as alleged by the State. The intervening event between the two periods of behaviour was the death of the deceased after she had suffered a violent attack.
The evidence of the earlier behaviour provides 'a context helpful, or even necessary, for an understanding of the narrative'.[80] It is capable of rationally affecting indirectly the probability of a fact in issue, namely whether the accused killed the deceased. It has that capacity because it is capable of directly affecting the probability of an intermediate fact in issue, namely whether the accused's subsequent behaviour stemmed from a realisation of guilt for the murder of the deceased. For those reasons, the evidence is admissible and may be adduced by the State, because, as I explain below, I am satisfied that the evidence of alleged post-offence conduct is also admissible.
Ms Pemberton's first statement - paragraph 20
[80] HML v The Queen [6]. See [43] above.
I am satisfied that the evidence in paragraph 20 of Ms Pemberton's first statement, concerning the accused's statement that he intended to pick up William Rictor and Ms Brown because they were stuck in town, is relevant for the reasons submitted by the State. It is evidence from which the jury can infer that William Rictor did not have a vehicle or other independent means of transport. That is a factor which, when considered with other evidence,[81] is capable of rationally affecting the jury's assessment of William Rictor's evidence that the accused returned to Boulder Camp in his vehicle on the morning of 10 November 2019, told William Rictor that he had killed the deceased and then took William Rictor in the accused's vehicle to a place seven and a half kilometres from Boulder Camp where he pointed out the location where the deceased could be found.
[81] For instance, Mr Currie's evidence, referred to at [15(1)] above, that, on the morning of 10 November 2019, he saw the accused pick William Rictor and leave Boulder Camp in a vehicle, and, later that morning, he saw them return to Boulder Camp in the same vehicle. See also the statement of Ursula Jean Bingham dated 11 November 2019: PB 25 - 26 [53] - [61].
William Rictor's evidence is probative of a fact in issue, namely that the accused killed the deceased. Indeed, his evidence is central to the State's case. The jury's assessment of William Rictor's account, and therefore the issue of whether the accused was responsible for the deceased's death, is likely to be affected by consideration of the hypothesis that William Rictor may have been responsible for the deceased's death, a hypothesis which the defence has foreshadowed it will pursue. The probability of that hypothesis being true is affected by whether William Rictor had opportunity to remove the deceased to the location where she was subsequently located. It would be reasonable to consider that such opportunity would be affected by the availability to William Rictor of a vehicle in which to transport the deceased to that location. The evidence to be adduced from Ms Pemberton concerning the accused's stated intentions in travelling to Kalgoorlie, and his understanding that William Rictor and Ms Brown did not have means of transport available to them, has some probative value affecting the issues I have outlined. The evidence is admissible and may be adduced by the State. The weight to be given to the evidence is a matter for the jury to determine, having regard to the other evidence in the case, including William Rictor's evidence.
Ms Pemberton's first statement - paragraphs 51 - 52, 63 - 66, 74
The admissibility of the evidence set out in paragraphs 51 to 52 and 63 to 66 of Ms Pemberton's first statement needs to be considered in the context of the State's case, which, as set out at [58] above, relies on three aspects of alleged conduct by the accused that, in combination, are said to evince a consciousness of guilt of the offence charged. The first two aspects, being the accused's flight from Boulder Camp after revealing the deceased was dead and his subsequent hiding outside of the Tjuntjuntjara community, knowing that police would be looking for him, are related and fall within the category of cases referred to by senior counsel for the accused, which involve concealment of one's responsibility for an offence, or other conduct intended to avoid apprehension for the offence. The third aspect of alleged conduct concerns erratic behaviour alleged to be consistent with a disturbed mind. The State submits that, in the absence of any other reasonable explanation, it would be open to the jury to find that the explanation for the accused having a disturbed mind at that time was that he had killed the deceased.
I am satisfied that the evidence in paragraphs 51 and 52 of Ms Pemberton's first statement, considered with the evidence in paragraphs 63 to 66 and 74, is relevant to establishing that the accused did not return to live in the Tjuntjuntjara Community after he left Boulder Camp, but was staying somewhere nearby, outside the community. The combination of that evidence is relevant to the issue of whether the accused was hiding, or avoiding the police, in the days after the deceased died, from which the jury could infer a consciousness of guilt in respect of the offence charged. The fact that the accused was seen in the community only in circumstances in which he behaved erratically, after which he left again, is capable of rationally affecting the probability of the existence of an intermediate fact in issue, namely whether the accused was hiding. His erratic behaviour is also capable of rationally affecting the probability of the existence of a further fact, namely that he knew his wife was dead. From those facts, the State would invite the jury to infer that, in hiding, the accused was acting from a realisation of guilt. In the context of the State's circumstantial case, that inference is not an indispensable link in the chain of reasoning upon which proof of guilt depends. Rather, it is a strand in the case, to be considered by the jury together with the other strands of the case, which include:
(1)the evidence of the accused's relationship with the deceased, including the propensity evidence of the accused's previous violent offending against the deceased, which has been ruled admissible;
(2)evidence of events leading up to the time of the deceased's death, including evidence that there were periodic arguments between the accused and the deceased during the evening before the deceased's death;
(3)evidence that the accused drove off from Boulder Camp with the deceased;[82]
(4)evidence of admissions made by the accused to William Rictor;
(5)evidence that the accused took William Rictor to the location where the deceased was subsequently found;
(6)evidence that the accused continued to use his Mitsubishi ute after the deceased died;
(7)evidence that the Mitsubishi ute was subsequently incinerated;
(8)evidence of the injuries suffered by the deceased; and
(9)evidence of the cause of death.
[82] Statement of Walter Young, dated 11 November 2019; PB 54 [40] - [41].
It will be apparent from that outline that this case, like most murder cases, is of the kind referred to in Ciantar,[83] in which the evidence of post-offence conduct is not the sole evidence of guilt relied upon by the State, but part of a more extensive body of evidence. In such a case, the evidence of post-offence conduct is to be considered in the context of the whole case in determining whether it is evidence of the accused's guilt of the offence charged, and it is erroneous to regard the evidence as 'intractably neutral' by examining the evidence in isolation. Its capacity to reveal a guilty mind is inexorably linked to a consideration of the effect of the whole of the evidence, which provides context for the inferences that can be drawn about the accused's state of mind and, ultimately, whether he is guilty of the offence charged.
[83] See [40] above.
Further, as was recognised in Ciantar, while the evidence of post-offence conduct may not be enough in itself to sustain an inference that the accused killed the deceased with the relevant intent to constitute murder, as opposed to some lesser state of mind, such evidence when combined with other evidence of the kind I have outlined, including forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with the relevant intent.[84]
[84] Ciantar [67].
In my opinion, the evidence sought to be adduced by the State, set out in the paragraphs of Ms Pemberton's first statement presently under consideration, is relevant and admissible for the reasons given at [78] above, which relate to the accused allegedly going into hiding.
Having reached that view, it is strictly not necessary to determine whether the evidence in paragraphs 63 to 66 of Ms Pemberton's first statement is probative of the third aspect of the accused's post-offence conduct on which the State relies as evidence of the accused's consciousness of guilt of the offence charged. However, I am satisfied that the behaviour described by the State as 'erratic' does have some probative value as evidence of consciousness of guilt. The description of the behaviour as 'erratic' is apt, in that it suggests the behaviour was irrational and unpredictable. In my opinion, it would be open to a jury to find that the behaviour was of that kind and that it manifested a disturbed mind, as alleged by the State. Again, in making such an assessment, the jury would be required to have regard to the evidence in the context of the whole case, not in isolation. That context includes the accused's unremarkable behaviour in Tjuntjuntjara before he travelled to Kalgoorlie, described in paragraphs 16 to 25 of Ms Pemberton's first statement. My earlier analysis of those paragraphs is relevant in this context. As I noted earlier, the contrast between the earlier behaviour and the accused's behaviour in ramming Ms Pemberton's vehicle is a relevant consideration in determining whether the latter manifested a disturbed mind and, if so, the explanation for that disturbance. The fact that the incident involved the use of the accused's vehicle is also relevant, given that the deceased was last seen with the accused leaving Boulder Camp in that vehicle and that the vehicle was subsequently destroyed by fire.
In my opinion, when one has regard to the intervening event of the deceased's death, it would be open to a jury to find that the explanation for the disturbance of the accused's mind, manifested by the ramming of Ms Pemberton's vehicle, was that the accused had killed the deceased. Other explanations may be open, for instance, that the accused's mind was disturbed because he was grieving for the deceased or in shock because of her death, but if the evidence is capable of sustaining an inference of consciousness of guilt, it must be left to the jury to determine whether it in fact demonstrates consciousness of guilt of the offence charged.[85]
[85] See [41] above.
It may be acknowledged that the conduct under consideration here, insofar as it is characterised as erratic behaviour, does not fit the usual mould for evidence of consciousness of guilt, and there is a need to scrutinise whether the evidence meets the requirements discussed at [32] to [37] above. As will be apparent from that discussion, there have been instances where conduct that does not fit the usual mould has been found nevertheless to be capable of establishing a consciousness of guilt. Helton v Allen, albeit a civil case, is an illustration of the way in which conduct stemming from stress or emotional instability may be capable of establishing a consciousness of guilt.
In context, the question is whether it would be open to a jury to conclude that the accused's erratic (or emotionally unstable) post-offence behaviour, taken in conjunction with other specified acts, facts and circumstances, as set out in [78] above, reveals that his mind was disturbed by the fact that he had caused the deceased's death (his realisation of guilt), and that it was for that reason that he was behaving in an erratic (or emotionally unstable) way. As I have said, I am satisfied that it would be open to the jury to draw that conclusion. Whether the jury draws that conclusion, weighing any other explanation that may be available for the accused's behaviour, is another matter. In the context of the State's circumstantial case, the jury would not need to be satisfied of that conclusion beyond reasonable doubt before they could rely on it, as it would not be an indispensable link in the chain of reasoning upon which proof of guilt would depend.
Irrespective of whether it is apt to describe the evidence of erratic behaviour as evidence evincing a consciousness of guilt, it would be admissible as circumstantial evidence tending to establish the accused's guilt of the offence, for the reasons outlined above. That is, evidence capable of establishing that the accused had a disturbed mind, and that the explanation for it was his involvement in the deceased's death, is relevant and admissible evidence, in that it could rationally affect the probability of the existence of a fact in issue, namely that the accused caused the deceased's death.
The characterisation of the evidence (that is, as evidence of consciousness of guilt, or simply as circumstantial evidence from which an inference of guilt may be drawn, in combination with other evidence) will affect the trial judge's directions to the jury. That is a matter that the trial judge may wish to revisit, having regard to the way in which the trial unfolds.
Finally, on the assumption, which I must make, that the jury will follow the judge's directions about the use that can be made of the evidence, I do not consider that the evidence carries a risk of impermissible prejudice, because of the discreditable nature of the accused's conduct, that outweighs its probative value, such as to justify its exclusion in the exercise of discretion. That basis of exclusion requires consideration of whether the jury may make impermissible use of the evidence, for instance by reasoning that because the accused acted in an aggressive and intimidating manner, he is more likely to have committed the offence charged. The jury will be warned against such reasoning, and will be directed as to the use that can be made of the evidence. In any event, I do not consider that the evidence is 'highly prejudicial' (in the impermissible sense), as submitted by the accused. Notably, the conduct described did not involve personal violence. It also occurred within a short timeframe. It also appears that no real damage was done to Ms Pemberton's vehicle.[86] Further, the discreditable nature of the conduct is relatively insignificant in the context that the jury will have evidence of the accused's prior violence towards the deceased, which is directly relevant to the probability that he inflicted the violence that caused or contributed to her death. I am not satisfied that the evidence should be excluded in the exercise of discretion.
[86] PB 81, statement of Moray Warrwick Ralph, dated 12/11/19 [86]; ts 357.
Accordingly, the evidence of Ms Pemberton set out in paragraphs 51 to 52 and 63 to 66 of her first statement is admissible and may be adduced by the State at the accused's trial.
Ms Pemberton's second statement
It follows from my rulings in respect of Ms Pemberton's first statement that her reference in the second statement to the incident in which the accused pushed her car with his vehicle is relevant and admissible and may be adduced by the State at the accused's trial.
Admissibility of James Townley's evidence
Evidence
At the start of the pre-trial hearing, the State indicated that it intended to adduce the following evidence from Mr Townley, as set out in his statement dated 13 November 2019:
1.I am 29 years of age and I live in the suburb of Highgate
2.I am employed Paupiyala Tjarutja Aboriginal Corporation (PTAC) as the Community Development Manager.
3.I work on a more permanent basis here with the community of the Tjuntjuntjara community.
4.I started working here in Tjuntjuntjara community about nine months ago. I have worked in a number of different roles within the community.
5.I first met Damian RICTOR when I started here in Tjuntjuntjara. He is employed by the community as a mechanics assistant to help out.
6.I know he was in a relationship with Sally Marie WATSON. I know her as Marie.
7.They live in Lot 1.
…
9.On Sunday 10 November, I was informed by a lot of people within the community that Marie had passed away[.]
14.I first saw [the accused] driving his white Ute through the community around midday on the Monday 11 November 2019.
15.I let Morey and Fiona know I had seen Damien.
16.I finished work early.
17.Damien was driving around doing doughnuts all day long.
18.However, at around 7pm I was at home watching a movie. My blinds were still open at the front door. I heard a knock on the door.
19.I could see it was Damian at the door. He could see me sitting on the couch. I did not answer the door.
20.Damian was asking for some Tobacco. This was repeated on about five occasions.
21.I kept indicating No. I was not going to open to door.
22.It was not aggressive at this point.
23.Damien then said, "I'm going to break the window."
24.I thought Damian would not hurt me or break any property. I just thought he was just making a point.
25.It was at this stage he threw a rock through the window. The rock did not go through completely as the windows are reinforced.
26.He was yelling in Pitjantjatjara language. I became concerned.
27.I said, "Wait, wait, wait, I will get you some tobacco."
28.I asked him to stand back from the door.
29.Damian stood back.
30.He stood back and I threw some tobacco pouch. I opened the door and threw him the tobacco.
31.Damian then left my place.
32.This event really shook me, I called Fiona and I went and stayed at her place.
The State intends to adduce evidence in accordance with the early parts of Mr Townley's statement as background, to establish Mr Townley's knowledge of the accused, and as additional evidence of the accused's relationship with the deceased. The two significant aspects of Mr Townley's evidence are the observations he made of the accused driving around doing 'doughnuts' on 11 November 2019 and the incident that occurred at Mr Townley's house that evening. 'Doing doughnuts' is the colloquial term for driving a vehicle in a manner that causes it to spin in tight circles, sometimes resulting in circular (doughnut) shaped tyre marks.
The State's submissions
The State submits that taken as a whole, Mr Townley's evidence, in the same way as Ms Pemberton's, tends to establish that the accused was hiding outside the Tjuntjuntjara community after the deceased's death, and when he came into the community, it was to behave erratically (and, one might add, antisocially) before leaving again. He was not behaving in a normal way, as a member of the community. Further, the State submits that the evidence concerning the accused's manner of driving during the day on 11 November 2019, as observed by Mr Townley, is relevant in the same way as Ms Pemberton's evidence of the accused pushing her car with his car, to show that the accused was in a disturbed frame of mind, evincing a consciousness of guilt.
The State submits that the evidence of the accused coming to Mr Townley's home and demanding tobacco also potentially demonstrates a disturbed frame of mind, but the principal reason that the State seeks to adduce that evidence is to support the inference that the accused was in hiding. The State would invite the jury to find that the accused would ordinarily be able to buy tobacco in the community, and the reason he went to Mr Townley's place in the evening, demanding tobacco, was that he was in hiding and had to obtain supplies by means other than the usual means.
When I queried with counsel for the State whether it would present a misleading account if the evidence omitted the fact that the accused threw a rock at the window, he acknowledged it would not be misleading and said the State would have no difficulty if that aspect of the evidence was left out.[87]
[87] ts 355 - 356.
On the other hand, the State adopted a different position in response to the accused's submission that, to establish that the accused was in hiding, it would be sufficient for the State to adduce evidence that the accused was seen driving in the community on the occasions described by Ms Pemberton, Mr Ralph (see below) and Mr Townley, without details of his manner of driving, and that, at other times, he was not in the community. The State submits that such an incomplete account would be misleading. It submits that the suggested approach overlooks the importance of the accused's state of mind while hiding, which is relevant in determining whether the fact he was hiding demonstrates a consciousness of guilt. The State submits that evidence of the accused's erratic behaviour would more readily enable the jury to draw the inference that, by that time, the accused knew that his wife was dead.[88]
The defence submissions
[88] ts 338 - 339.
The accused objects to the whole of Mr Townley's evidence on the basis that it is not probative of any fact in issue. More specifically, the objection to the evidence in respect of the accused doing 'doughnuts' in his vehicle and acting in an aggressive way when he attended Mr Towley's home is in the same terms as the objection to Ms Pemberton's evidence about the accused pushing her car with his car. In essence, the accused submits that the evidence lacks sufficient probative value to establish that the accused was acting from a consciousness of guilt in respect of the offence of murder. He submits that such an inference could not reasonably be drawn from the nature of the conduct alleged.[89] He submits the evidence is intractably neutral. Alternatively, he submits that the relevance of the evidence in that regard is so marginal that it should be excluded in the exercise of discretion on the ground that its prejudicial effect in disclosing criminal conduct by the accused outweighs any probative value the evidence might have.[90]
[89] ts 347.
[90] ts 353.
It was conceded on the accused's behalf that a jury could reasonably infer from the circumstantial evidence that the accused fled and was in hiding, in that there is evidence that, after the death of the deceased, he left Boulder Camp and returned to the vicinity of the Tjuntjuntjara community, but was not seen in the community apart from brief episodes. However, it was submitted that the evidence of discreditable conduct is not necessary in the inferential reasoning from that circumstantial evidence; it does not strengthen the inference. On the other hand, the accused submits, it is highly prejudicial evidence.
Ruling
Notwithstanding the concession in the defence submissions, there are no admissions in respect of any of the facts in issue, as the State noted.[91] Moreover, the inference the State will invite the jury to draw in respect of consciousness of guilt depends on the jury being satisfied not only that the accused was hiding, but that he was doing so with the knowledge that the deceased had been killed. As I have already explained, the evidence of the accused's erratic behaviour is relevant to that issue, when considered in conjunction with the other evidence in the case, as outlined at [78] above.
[91] See [60] above.
For the same reasons I have given at [78] to [85] above in respect of the evidence in paragraphs 63 to 66 of Ms Pemberton's first statement, I am satisfied that the evidence in paragraph 17 of Mr Townley's statement is relevant to the second and third aspects of the State's case in respect of consciousness of guilt,[92] and is admissible on that basis. Further, for the same reasons I have given at [86] to [87] above in respect of the evidence in paragraphs 63 to 66 of Ms Pemberton's first statement, the evidence in paragraph 17 of Mr Townley's statement is admissible as circumstantial evidence tending to establish the accused's guilt of the offence, when considered in conjunction with the other evidence in the State's case.
[92] See [58] above.
As for the evidence set out in paragraphs 18 to 32 of Mr Townley's statement concerning the incident in which the accused attended Mr Townley's house for tobacco, I am satisfied that it is relevant to establishing the second aspect of the State's case in respect of consciousness of guilt, namely that the accused was hiding outside of the Tjuntjuntjara community for a period of six to seven days, knowing that his wife was dead and that the police would be looking for him. However, I am not satisfied that the circumstances of that incident provide a sufficient basis for concluding that the accused's conduct revealed a disturbed mind that could reasonably be attributed to a realisation of guilt of the offence charged, or some aspect of that offending. That is because there is another explanation for the accused's rowdy and aggressive conduct that is readily available from the context, namely his pressing need to obtain tobacco in circumstances where he could not obtain it by usual means within the Tjuntjuntjara community. In that regard, the circumstances can be distinguished from the circumstances of the accused ramming Ms Pemberton's vehicle or doing 'doughnuts' in his vehicle, for which there is no obvious rational explanation. Another distinguishing feature in those other incidents is the accused's use of his vehicle, which, as I explained earlier, had a connection to the deceased and was subsequently destroyed by fire (the inference being open that it was destroyed by the accused).
The fact that the accused's behaviour when he attended Mr Townley's home may be explained by a pressing need for tobacco does not detract from the probative value of the evidence in establishing that the accused was hiding because of a realisation of guilt of the offence charged, but it does detract from the capacity of the evidence to establish that the disturbed behaviour stemmed from such a realisation of guilt.
I accept the accused's submission that the aggressive, and indeed, violent, nature of his conduct on that occasion, particularly the act of throwing a rock at the window, does carry the potential for impermissible prejudice, in that it could result in a process of reasoning that would relate the aggressive and violent behaviour to what had occurred between the accused and the deceased. Although I consider that a direction from the trial judge cautioning against impermissible reasoning could ameliorate that prejudice, I would be inclined to exclude those aspects of the evidence in the exercise of discretion on the ground that the risk of impermissible prejudice outweighs its probative value. I consider that it is proper for the State to adduce the evidence of the accused's visit to Mr Townley's home in a way that does not include descriptions of the threat or violent behaviour, as counsel for the State indicated.
The fact that the accused was in an agitated state does have some probative value in establishing the second aspect of the State's case in respect of consciousness of guilt (that is, that he was hiding because of a realisation of guilt), but that is sufficiently apparent from the evidence that the accused asked for the tobacco repeatedly and was yelling.
Accordingly, the evidence of Mr Townley set out above may be adduced by the State at the accused's trial, except for the references to the accused threatening to throw a rock through the window and throwing a rock at the window.
Admissibility of Moray Ralph's evidence
Evidence
The State intends to adduce the following evidence from Mr Ralph, as set out in his first statement, dated 12 November 2019:
1.I am 64 years of age and I live at the Tjuntjuntjara Community, Plumridge Lakes.
2.I am the Chief Executive Officer of Paupiyala Corporation Tjarutja Aboriginal.
3.I have been working and living in the Tjuntjuntjara Community for about 2 years.
4.My actual home is based in Tasmania.
…
6.I spend a considerable time living an working in the community.
…
8.There is about one hundred and eighty people that live in the community.
9.Kalgoorlie is the closest town of any size and that is about six hundred and fifty kilometres away from Tjuntjuntjara.
10.I know a person called Damian RICTOR (Damian).
11.Damian has been living in the Tjuntjuntjara Community since I first arrived.
12.Damian had been living in the community for most of his life.
13.Damian has been working for the community since I arrived in Tjuntjuntjara.
14.He works for the community on a part-time casual basis.
15.He works in the community mechanics workshop.
16.He works on all sorts of vehicles including heavy vehicles.
17.I would describe Damian as a very skilled bush mechanic.
18.I would also describe Damian as a very skilled bushman.
19.Damian could survive living off the land with ease.
20.The rest of the community also acknowledge Damian's skills.
21.Damian was in a de-facto relationship with a woman called Marie WATSON (Marie).
22.I have checked Marie's file and her recorded name on the community file is Sally Marie THOMAS with a date of birth being 6th July 1984.
23.As far as I am aware the other community members also called her Marie.
24.Damian and Marie were together when I first started working in the community.
25.They lived together in a house numbered 1.
26.There are several other people who lived in the house with Damian and Marie.
27.The other persons living with them in house numbered 1 were Byron BROOKS, Lorene DAVIES, Ned GRANT and Damian's mother Angelina WOODS (Angelina).
28.Angelina only passed away in late September or early October.
29.Since Angelina died all the occupants of the house moved out for cultural reasons.
30.It can be up to six months before they can move back into the house culturally.
…
45.At about 9.00 am Saturday 9 November 2019, Damian came to my front door and he asked for fuel.
46.I knew it was about 9.00 am as I saw my clock which hangs on my wall.
47.I live in house or lot number 66 in the community.
48.Damian said he wanted to drive to Kalgoorlie.
49.Damian said something about having to go into Kalgoorlie because his brother's car had been stolen.
50.He said Noely had given someone some money to someone to buy a car, but the car had been stolen.
…
53.Damian said that Noely was in Kalgoorlie drinking.
54.I don't know what Noely's real name is but Noely also lives at the Tjuntjuntjara Community.
55.Noely lives in house/lot 20 with his wife in the community.
56.Noely and his wife often prefer to sleep outside their house.
57.I am not sure when Noely and his wife left the community and I can't remember the last time I saw them at the community.
58.It would have been several days before this when I last saw Noely at the community.
59.I told Damian that I couldn't help him with the fuel.
60.It's not something that we normally do. We just don't give out fuel.
61.After I told Damian that I couldn't give him any fuel he just seemed to accept it and left.
62.I am not sure if Marie was with him or not.
63.I didn't really look out I was just dealing with Damian at the door.
64.I didn't see if Damian was in his vehicle or not. I wasn't paying any attention to how he got to my place.
…
69.That was the last time I physically saw either (sic) Damian.
70.The last time I had seen Marie was in the community late last week in front of the store.
71.Between 4.00 pm and 5.00 pm yesterday afternoon I saw Damian's car pushing against Fiona's car out the front of our office at the Tjuntjuntjara Community.
72.Damian's Mitsubishi's wheels were spinning whilst the car was trying to push Fiona's parked car forward. Fiona's car was being pushed from behind.
73.Damian's car is a white Mitsubishi single cab tray-back utility.
74.I think the Mitsubishi is a later model vehicle.
75.I recognised the Mitsubishi to be the vehicle that Damian has been driving around in for the last few months.
76.I think the Mitsubishi had belonged to his mother.
77.Fiona has a white Toyota Landcruiser Work Mate station wagon. The car is owned by Paupiyala Tjarutja Aboriginal Corporation.
78.When Damian's car was pushing Fiona's car the staff were looking out the window watching.
79.I was concerned that the car could come through the building, so I was focussed on trying to keep the staff away and get them out of that room.
80.I didn't see Damian driving the Mitsubishi because I was focused on the staff's safety.
81.No one was in Fiona's car at the time.
82.Fiona was in the office looking at what was going on through the window.
83.After a couple of minutes, the Mitsubishi tooted its horn and drove off.
84.After the Mitsubishi drove off, I went outside to see if there was any damage to Fiona's car.
85.Damian's Mitsubishi has a rap around front bulbar, and it was pushing Fiona's car rather than ramming it.
86.I couldn't see any real damage.
The State intends to adduce the following evidence from Mr Ralph, as set out in his second statement, dated 13 June 2021:
1.I say this in addition to my statement dated 12 November 2019.
2.Damian was going to Kalgoorlie nearly every week for the last 12 months.
3.I did not see Damian after the incident with Fiona's car on 11 November 2019.
4.I saw a car with smoke at about 7 am on 14 November 2019. I went out there and saw that it was Damian's car.
…
6.I never saw Damian come into the Tjuntjuntjara town site since 11 to 17 November.
The parties' submissions
I have set out all of the evidence the State intends to adduce from Mr Ralph for context. However, the issue in respect of Mr Ralph's evidence is confined to the evidence concerning the incident, described in his first statement, in which the accused is alleged to have pushed Ms Pemberton's vehicle with his vehicle. The accused's objection to that evidence is on the same basis as the objection to Ms Pemberton's evidence about the same incident.[93] A separate objection in respect of Mr Ralph's evidence is that he did not see the driver, so the conduct cannot be attributed to the accused.[94] With respect, this ignores the need to consider the evidence in combination with the other evidence to be adduced by the State, not in isolation.
[93] Defence Outline No. 4 [15(iv)]; ts 360. The accused also objects to paragraph 3 of Mr Ralph's second statement because of its reference to the incident with Ms Pemberton's car, which is said to be irrelevant. The accused does not object to Mr Ralph giving evidence that he did not see the accused again after 9 November 2019: ts 362 - 363.
[94] Defence Outline No. 4 [16].
The fact that Mr Ralph and Ms Pemberton describe the same incident is patent from the details each of them gives of the incident, and the fact that Mr Ralph states that Ms Pemberton was in her office at the time, looking out the window and witnessing what was transpiring. Although Mr Ralph did not see the driver of the vehicle at the time of the incident, the fact that it was the accused driving the vehicle would be established by Ms Pemberton's evidence, if it accords with the contents of her first statement. A significant aspect of Mr Ralph's evidence is that he identifies the vehicle as the accused's Mitsubishi single cab tray-back utility. I will deal below with additional evidence concerning that vehicle which was lodged by the State after the hearing on 1 February 2022.
Ruling
For the same reasons I have given above in respect of the evidence of Ms Pemberton concerning the incident in which the accused is alleged to have pushed her vehicle with his vehicle, I am satisfied that the evidence of Mr Ralph in respect of that incident is admissible and should not be excluded in the exercise of discretion. Accordingly, the evidence may be adduced by the State at the accused's trial.
Additional evidence lodged by the State after 1 February 2022
During the pre-trial hearing on 1 February 2022, I queried with the State what evidence it relied on to establish which vehicle the accused was driving at the relevant time, and that the utility that was subsequently found destroyed by fire was the same vehicle. Counsel for the State undertook to file and serve further evidence after the hearing.
The State subsequently lodged with the Court a statement dated 14 February 2022 from Raymond Leslie Wookey, copies of monochrome photographs of an incinerated vehicle signed by Mr Wookey, copies of colour photographs of the same incinerated vehicle, and a screenshot of computer records in respect of the registration of a vehicle described as a Mitsubishi Triton truck, registration number KBC399L, which appears to correlate with the number plate on the vehicle in the photographs. The chassis/vehicle identification number is also recorded.[95]
[95] The additional materials have been incorporated into the prosecution brief at pages 661 to 678.
Mr Wookey identifies the vehicle in the photographs as a Mitsubishi utility he had seen the accused driving at Tjuntjuntjara both before and after the deceased's death.[96] He says that he had bought the vehicle for Byron Brooks, who he says was 'like [the accused's] stepfather'.[97] The police computer record shows the registered owner as Byron Brooks.[98] Mr Wookey states that, on 14 November 2019, he went out to the location in the bush where the Mitsubishi utility was destroyed by fire, and he identified the vehicle as the one he had bought for Mr Brooks.[99]
[96] PB 663 [27], 664 [31] - [35], 665 - 666 [46] - [47], 666 [54] - [56].
[97] PB 662 - 663 [12] - [20].
[98] PB 678.
[99] PB 665 - 666 [36] - [47].
Although the main purpose of Mr Wookey's statement was to establish the link between the Mitsubishi vehicle found destroyed and the vehicle being driven by the accused before and after the deceased's death, he also describes an incident after the accused had gone to Kalgoorlie and returned without the deceased.[100] It was two or three days prior to Mr Wookey learning that the accused had been arrested at Tjuntjuntjara.[101] He states that he saw the accused 'driving Byron's Mitsubishi utility recklessly and dangerously around the workshop shop area on a few occasions over a couple of days'.[102] He states that it was in the morning and afternoon, and that he clearly saw it was the accused driving.[103] He states that the accused was doing 'burnouts and donuts' (sic) near the workshop.[104]
Admissibility of evidence of Mr Wookey in respect of the accused's driving
[100] PB 664 [31] - [32].
[101] PB 664 [31], [35].
[102] PB 664 [31].
[103] PB 664 [33].
[104] PB 664.
In the event that the State intends to adduce the whole of the evidence set out in Mr Wookey's statement, it may be assumed that the accused would object to the evidence concerning the 'reckless and dangerous driving' on the same basis as the objection to Mr Townley's evidence about the accused 'doing doughnuts' and the evidence of Ms Pemberton and Mr Ralph about the accused pushing Ms Pemberton's vehicle with his vehicle. Apart from the opinion element (that the driving was 'reckless and dangerous'), the evidence that Mr Wookey would give in relation to the accused's manner of driving (that he was doing 'burnouts and donuts' in the vicinity of the workshop) is admissible and should not be excluded in the exercise of discretion, for the same reasons I have given in respect of Mr Townley's evidence about similar behaviour.
It may well be that some of what Mr Wookey describes includes the incident observed by Mr Townley. Whether or not that is so, the incidents described by Mr Wookey occurred within the same timeframe as the incident described by Mr Townley, and they have the same probative value.
Although there are instances where the non-expert opinion of a witness, in the form of an impression, is admissible, they involve situations in which it is difficult or impossible for the witness to convey to the jury an adequate idea of the facts on which the impression or opinion is based, in other words, it is difficult or impossible to separate the opinion from the facts on which it is based.[105] It would appear from Mr Wookey's description of the driving that he is able to give specifics of the manner of the accused's driving that would enable the jury to draw its own conclusion about whether it was reckless or dangerous. In those circumstances, the opinion element of Mr Wookey's evidence would not be admissible.
[105] See Cross on Evidence 1157 - 1158 [29085]. Typical instances of the rule are identified at 1158 - 1160 [29090] - [29100].
Summary of rulings
In summary:
(1)All of the evidence in Ms Pemberton's first statement, set out in [52] above, is admissible and may be adduced by the State from Ms Pemberton at the accused's trial.
(2)The evidence in Ms Pemberton's second statement, set out in [54] above, is admissible and may be adduced by the State from Ms Pemberton at the accused's trial, except the evidence in paragraphs 6 to 9 inclusive of that statement, which is not admissible.
(3)The evidence in Mr Townley's statement, as set out in [91] above is admissible and may be adduced by the State from Mr Townley at the accused's trial, except the evidence in paragraphs 23 to 25 inclusive of that statement, which I would exclude in the exercise of discretion, on the ground that its prejudicial effect outweighs its probative value.
(4)The evidence in Mr Ralph's first statement at paragraphs 71 to 86 inclusive and his second statement at paragraph 3, as set out in [106] and [107] above is admissible and may be adduced by the State from Mr Ralph at the accused's trial (in addition to Mr Ralph's evidence to which there is no objection).
(5)The evidence in Mr Wookey's statement concerning the accused driving in a manner involving 'burnouts and donuts' is admissible and may be adduced by the State from Mr Wookey at the accused's trial.
Suppression order
These reasons are suppressed until the completion of the proceedings, except that the reasons may be made available to the accused and his legal representatives, any legal practitioner in the Office of the Director of Public Prosecutions (WA) who is involved in the prosecution of this matter (including at pre-trial hearings) and any judicial officer and court staff dealing with this matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
5 JULY 2022
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