State of Western Australia v Munmurrie
[2005] WASC 133
STATE OF WESTERN AUSTRALIA -v- MUNMURRIE [2005] WASC 133
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 133 | |
| Case No: | INS:178/2004 | 14 JUNE 2005 | |
| Coram: | BLAXELL J | 20/06/05 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Objection partially allowed | ||
| B | |||
| PDF Version |
| Parties: | STATE OF WESTERN AUSTRALIA MICHAEL PATRICK MUNMURRIE |
Catchwords: | Criminal law and procedure Evidence Propensity evidence Admissibility of evidence of past acts of violence committed on deceased by accused charged with wilful murder Admissibility of evidence of statements by deceased as to such violent acts |
Legislation: | Evidence Act 1906 (WA), s 31A |
Case References: | Pfennig v R (1945-1995) 182 CLR 461 R v Bond (1906) 2 KB T (A Child) v R (1998) 20 WAR 130 Wilson v R (1970) Perich v R, unreported; CCA SCt of WA; Library No 960557; 3 September 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- State
AND
MICHAEL PATRICK MUNMURRIE
Accused
Catchwords:
Criminal law and procedure - Evidence - Propensity evidence - Admissibility of evidence of past acts of violence committed on deceased by accused charged with wilful murder - Admissibility of evidence of statements by deceased as to such violent acts
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Objection partially allowed
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Category: B
Representation:
Counsel:
State : Ms C Barbagallo
Accused : Mr R G W Bayly
Solicitors:
State : State Director of Public Prosecutions
Accused : Bayly & O'Brien
Case(s) referred to in judgment(s):
Pfennig v The Queen (1995) 182 CLR 461
R v Bond [1906] 2 KB
T (a child) v The Queen (1998) 20 WAR 130
Wilson v The Queen (1970) 123 CLR 334
Case(s) also cited:
Perich v R, unreported; CCA SCt of WA; Library No 960557; 3 September 1996
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1 BLAXELL J: The accused will stand trial on 20 June 2005 on an indictment alleging that on or about 5 January 2004 he wilfully killed his de facto wife Gayle Joanne Noble. At a directions hearing on 14 June, the accused applied for an order that evidence of prior acts of violence allegedly committed by him on the deceased be ruled inadmissible, and I reserved my decision. There are my reasons for now ruling that some (but not all) of that evidence is admissible.
2 It is important to note that the recently enacted s 31A of the Evidence Act1906 (WA) has significantly changed the law applicable. Subsection 31A(2) provides that "propensity evidence" or "relationship evidence" as defined in sub (1) is admissible in proceedings for an offence if the Court considers –
"(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."
3 As I construe these provisions, par (b) subsumes the discretion that the Court has previously had to rule such evidence inadmissible by reason of it having a prejudicial effect that outweighs its probative value. In respect of the particular categories of evidence as defined in the section, the Court must now apply an objective test by reference to the thinking of "fair minded people".
The facts that do not appear to be in dispute
4 The accused man was the de facto husband of the deceased woman from early 2002 until her death in January 2004. However, the couple separated for a short period in September 2003, during which time the accused was in a relationship with another woman, Patricia Dodd.
5 After resuming their relationship in late 2003 the accused and the deceased were residing together at the Aboriginal community at Burringurrah, which is approximately 400 kilometres from Carnarvon. However, a short time prior to Christmas 2003 (perhaps two weeks beforehand) they travelled together to Carnarvon and stayed temporarily with the deceased's son, Fabian Noble. The couple remained at
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- Carnarvon up until 5 January 2004 and had intended to continue their stay for another week or two.
6 The deceased was last seen alive by members of her family at about 4 or 5 pm on 5 January 2004, when she departed her son's house in company with the accused in his red Ford Falcon sedan. At that time she had no obvious signs of injury and seemed to be in a happy mood. Family members are able to describe the clothing that the deceased was wearing when last seen.
7 Members of the deceased's family became concerned when she did not return to her son's house, and ultimately on 12 January 2004 she was reported to police as a missing person.
8 Carnarvon detectives immediately commenced an investigation into the whereabouts of the deceased. They also arranged for seizure of various items of property, including the accused's red Ford Falcon sedan which by then was situated at Geraldton.
9 On 26 January 2004, the detectives conducted a video record of interview with the accused, during which he gave his account of the last known movements of the deceased. According to him, he last saw the deceased late on 5 January 2004 when she got out of his vehicle following an argument (which she had started) concerning Patricia Dodd.
10 On 10 February 2004, the deceased's body was found in a bush area on the "flats" near Carnarvon. The body was clad in clothing matching the description given by family members when the deceased was last seen alive. Because of the condition of the body, the subsequent post-mortem examination could not reveal the cause of death.
The case against the accused
11 The prosecution seeks to adduce the evidence which is objected to in the present application. Essentially, this evidence goes to the nature of the relationship between the accused and the deceased prior to the latter's death. This evidence is usefully summarised in the State's written submissions dated 14 June 2005 and is said to show a "dysfunctional relationship with various acts of domestic violence being perpetrated on the deceased woman by the accused man."
12 This evidence as to the nature of that prior relationship comes from a total of 14 witnesses, who (with the exception of a registered nurse from Burringurrah community, Christina Lilian Pember) were relatives or
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- acquaintances of the deceased. The evidence falls into the following five broad categories:
(i) Evidence of various statements made by the deceased during the period of her relationship with the accused concerning acts of violence committed by him upon her.
(ii) Evidence of the deceased seeking medical assistance for particular injuries which she said had been inflicted by the accused.
(iii) Evidence of conduct by the accused towards the deceased which was observed by witnesses and was indicative of him having a dominant, possessive attitude towards her.
(iv) Direct evidence from witnesses of violent acts committed by the accused upon the deceased.
(v) Evidence of admissions by the accused as to acts of violence committed on the deceased.
14 At 10 or 11 pm the accused went to Reuben Jones' house and asked Reuben if he had seen the deceased. The accused also told Reuben that he had "just had a row at Al's Liquor Store" with the deceased and had "booted her out of the car".
15 When the accused arrived at Reuben Jones' house he was carrying a half empty cask of port from which he was drinking. After a while he asked Reuben to accompany him to look for Patricia Dodd, but the latter declined this request. The accused then walked off, after being given directions by Reuben to Patricia Dodd's house in Morgan Way.
16 About half an hour later the accused returned to Reuben Jones' house accompanied by Patricia Dodd. The accused asked Reuben for the use of a spare bedroom and spent the rest of the night in there with Patricia.
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- During this time the accused asked Patricia Dodd if she wanted to be in a relationship with him. He said that they would go and tell the deceased about it in the morning.
17 Early the following morning (6 January 2004) the accused was seen by Teresa Oliver to be wearing wet jeans which had white clay mud on them near the bottom of the legs. The accused asked Reuben Jones for a pair of clean jeans and was directed to a cupboard where they could be found. He then changed into the clean pair of jeans, leaving the wet muddy jeans behind.
18 The accused did not return to Fabian Noble's house where had been staying with the deceased and where they had planned to remain for a further week or so. At 9 am he set off for Geraldton in his vehicle, accompanied by Patricia Dodd, as well as by Delores and Dale Robinson. Over the following few days he remained in Geraldton.
19 On 10 January 2004 the accused was arrested by police in Geraldton for non-payment of outstanding fines. He was taken into custody and has remained there ever since.
20 On 13 January 2004 Patricia Dodd was cleaning the accused man's car (prior to it being seized by the police) and she found a Job Network card belonging to the deceased. By then Dale Robinson had also found the accused man's wallet in the vehicle, which contained the deceased's keycard.
21 When the police seized the accused's vehicle on 13 January 2004, the items found inside included a Commonwealth Bank keycard in the name of the deceased. The vehicle also had newly fitted car seat covers which had been purchased by the accused on 30 December 2004, (viz 6 days prior to the disappearance of the deceased.)
22 The various items of property seized by the police were forensically examined and the most significant findings were human blood on car seat covers and on the lens of the red torch which the accused had left behind at Raylene Oliver's house at about 10 pm on 5 January 2004. The blood on these items was DNA profiled and was found to match the profile of the deceased. (However, there may be an issue as to whether the DNA on the torch came from the blood). An expert will say that the probability of finding this profile if the bloodstains had come from someone other than and unrelated to the deceased is less than one in 19.3 million (based on the State's population).
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23 When the deceased's body was found by relatives on 10 February 2004 it was located approximately 20 metres off a bush track in the vicinity of Bush Bay. The accused was familiar with this area as he had been fishing near that location with the deceased on 1 January 2004. The deceased's body was positioned such that she was lying on her back with her head turned to the left. As already noted, the body was dressed in the same clothes that the deceased was wearing when last seen, except that there were no shoes or a beanie.
24 The prosecution also relies on the contents of the video record of interview conducted with the accused on 26 January 2004 (prior to the body being located). In summary, the accused is said to have told police as follows:
"• Admits that, late in the afternoon of January 5, 2004, he and the deceased woman had driven out of Carnarvon on some back tracks to Mungullah Village to bring some port to another person. It was on that journey that the deceased woman started to agitate the accused man about the presence of Patricia Dodd (the woman he had a relationship with in late 2003) in Carnarvon. It seems that the deceased woman was concerned that the accused man was going to run off with Ms Dodd.
• The accused man denies any physical assault during this argument with the deceased woman and says that the deceased woman got out of the car in some bush area and he drove off. He then drove off to the old dump site where he sat for a couple of hours thinking about things and "getting his shit together" before returning to Carnarvon. It seems that the accused man was in the bush area for about 3 hours.
• The accused man admits that he did not continue on his journey to bring the port back to Mungullah Village.
• The accused man admits that the deceased woman got out of the car in the bush area without any shoes on.
• The accused man admits that when he returned to Carnarvon, he did not go into Fabian's house (the house where they had been staying) to see if the deceased woman had returned to the township.
• The accused man admits, after his return to Carnarvon, he went to Reuben Jones' house and after a short period of time asked Reuben where Patricia Dodd could be found.
• The accused man admits that he went and found Patricia Dodd and they spent the night together.
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- • The accused man admits that he and Patricia Dodd went to Geraldton the next day with a few other people to do a drug run.
• The accused man says that he stayed in Geraldton longer than expected as some people borrowed his car and did not return it when they should have.
• The accused man could not explain why he did not go looking for the deceased woman the following morning."
The law governing admissibility of the evidence in question
25 Section 31A of the Evidence Act1906 has significantly changed the law as to admissibility of propensity and relationship evidence. Previously, propensity evidence could be admitted only if it had a particular probative value or cogency such that, if accepted, it bore no reasonable explanation other than the inculpation of the accused in the offence charged (Pfennig v The Queen (1995) 182 CLR 461).
26 Relevant to the facts alleged in the present matter, the leading authority as to admissibility of relationship evidence has been Wilson v The Queen (1970) 123 CLR 334. There, the majority of the High Court approved the following statement by Kennedy J in R v Bond [1906] 2 KB at 401:
"The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial."
27 In the majority decision in Wilson, Menzies J went on to state (at 344):
"Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements or was their relationship one of enmity and distrust?"
28 The applicant in Wilson was charged with murdering his wife by shooting her with a firearm, and he contended that the firearm had discharged accidentally. The prosecution had adduced evidence of
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- quarrels between the couple, during the course of which the deceased had accused her husband of wanting to kill her. In relation to these statements by the deceased, Menzies J held (at 344):
"The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide."
"The evidence of what had been said by the deceased was admitted, not to prove the truth of her statements, but to prove that the statements were made, from which an inference might be drawn as to the nature of the relationship between the appellant and the deceased. That was a legitimate reason for the admission of the evidence in question and in the result that evidence was not hearsay."
30 Although Ipp J was in the minority in ruling that certain of the evidence in T (a child) v The Queen was inadmissible, much of his reasoning was consistent with the views of the majority. In that regard, I consider that the following passage from his Honour's judgment (at 142) is particularly pertinent:
"In the present case it was relevant for the jury to know whether the relationship between the appellant and the deceased was stable, loving and affectionate and likely to be permanent or whether it was volatile, and unhappy, and likely to end at any moment, and whether the appellant and the deceased were
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- prone to angry quarrels, provoked by jealousy and possessiveness on the part of the appellant. These matters had a particular bearing on motive and intent."
31 In relation to the statements of the deceased in question in T (a child) v The Queen, Ipp J also held, (at 143) that:
" … those words contain an implied assertion that there were difficulties in her relationship with the appellant. That inference does not depend on the contents of the statement by the deceased being true, but arises from her conduct in speaking the words in question, and the evidence may be admissible on this basis."
32 Quite apart from the question whether any particular propensity or relationship evidence is admissible, the trial Judge has, of course, always had the discretion to exclude the same on the basis that it has a prejudicial effect which outweighs its probative value. As stated by the majority of the High Court in Pfennig (at 485) this balancing process is sometimes a "delicate one".
33 It is against this background that I now deal with the impact of s 31A of the Evidence Act 1906. The first notable change in the law is that the statutory definitions of "propensity evidence" and "relationship evidence" seem to be wider than the previously understood meanings of those terms. However, these changes in meaning have little significance in the present matter.
34 With regard to the criteria for admissibility as set out in subs (2), it is significant that par (b) is obviously based on a passage from the minority judgment of McHugh J in Pfennig (at 529). That this is so is confirmed by the Hansard record of the second reading speech debate in the Legislative Council when the Minister responsible for introducing the legislation stated that:
" … the policy behind this (viz s 31A) was derived from a view expressed by Justice McHugh in Pfennig v The Queen 182 CLR 461." (Hansard 24/9/2004 at 6547).
35 Accordingly, s 31A needs to be construed in light of the reasoning of McHugh J in Pfennig, and in that regard I consider that the following passages from his Honour's judgment (at 528-530) are particularly pertinent:
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- "In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.
If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
If the evidence does no more than prove a mere propensity to commit crimes of the kind in question, it will never have sufficient probative force to make it admissible. If it does have the required degree of probative force, it will be because it is relevant for a reason other than proof of propensity or because it colours one's perception of the other evidence to such an extent that it can be confidently inferred that the accused gave effect to the propensity on the occasion in question.
… For propensity evidence to be admissible, however, it will need to have 'specific probative value in relation to the crime charged'. Even then, propensity evidence will not be admitted if the prejudicial value of the evidence makes it contrary to the interests of justice to admit it.
If the risk of an unfair trial is very high, the probative value of evidence disclosing criminal propensity may need to be so cogent that it makes the guilt of the accused a virtual certainty. In cases where the risk of an unfair trial is very small, however, the evidence may be admitted although it is merely probative of the accused's guilt. Each case turns on its own facts. But the judge must bear in mind that the admission of evidence revealing criminal propensity is exceptional. Further, as Lord
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- Cross pointed out in Boardman ([1975] AC at 459), while there remains a general rule against the admission of other acts of misconduct, 'the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence'."
36 In respect of the evidence in question in the present matter, section 31A clearly governs the admissibility of all categories other than what might be termed the "hearsay" statements of the deceased (viz categories (i) and (ii) referred to earlier). These hearsay statements are not evidence of the truth of what was said by the deceased, but are merely evidence from which the jury might infer that there were "difficulties in the relationship" that she had with the accused. Accordingly, and no matter how artificial the distinction might appear to be, they are not evidence of the conduct or attitudes of the accused.
37 It follows that those statements are not "propensity evidence" or "relationship evidence" within the meaning of s 31A. For this reason, the admissibility of evidence of those statements is governed by ordinary common law principles.
Whether the evidence in question should be admitted
38 The case against the accused is an entirely circumstantial one which requires the jury to determine the inferences that can be drawn from inter alia the following circumstances:
• When the deceased was last seen alive she was with the accused and driving off in his vehicle.
• At that time the deceased had no apparent injury and was in a happy mood.
• The deceased never returned.
• The accused did return in the vehicle four or five hours later, but was alone.
• The accused did not return to the house where he was staying with the deceased, but went to another house.
• The accused had with him a red torch which he left behind at that other house.
• The accused then went to yet another house where he inquired as to the whereabouts of Patricia Dodd, a woman with whom he had
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- recently had a relationship. The accused then went off to find Patricia Dodd.
- • The accused returned to that same house half an hour later with Patricia Dodd and spent the remainder of the night with her in a spare bedroom.
• While with Patricia Dodd that night the accused asked her if she wished to start a relationship again.
• The accused never returned to the house where he had been staying with the deceased nor made any serious effort to contact or find her.
• The accused departed Carnarvon in his vehicle at 9 am on 6 January 2004 (in company with Patricia Dodd) and travelled to Geraldton where he remained until arrested by police.
• The deceased's body when found on 10 February 2004 was clad in the same clothing that she had been wearing when last seen alive.
• Forensic examination established the presence of the deceased's blood on seat covers in the accused's vehicle and on the lens of the red torch.
• The seat covers had been purchased only six days prior to 5 January 2004.
• The deceased's Job Network card and Commonwealth keycard were also found in the accused's vehicle.
39 The adverse inferences that the jury will be asked to draw from these and other relevant circumstances are that the deceased was killed, that it was the accused who killed her, and that he did so wilfully. In deciding whether or not each of those inferences can be drawn, and whether or not each inference is the only inference that can reasonably be drawn, it is obviously relevant for the jury to know the nature of the prior relationship between the deceased and the accused. As was held in Wilson, without that evidence the jury would be deciding those issues in a "vacuum".
40 Further, and to the extent that the evidence of the prior relationship reveals that the accused had a propensity to commit violent acts upon the deceased, it has relevance:
" … because it colours one's perception of the other evidence to such an extent that it can be confidently inferred that the accused gave effect to the propensity on the occasion in question." (McHugh J in Pfennig at 529).
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41 For these reasons, I am of the view that the evidence in question in the present matter does, in general, have considerable probative value (and in terms of s 31A has "significant probative value").
42 With regard to the "hearsay" statements by the deceased, I am also of the view that some of these have a more particular probative value. Some of these statements (if accepted) would support the inference that the deceased had a submissive attitude towards and was in fear of the accused. By reference to Margaret Anne Ranger's evidence (as summarised in par 8(1) of the State's submissions dated 14 June 2005), these statements are the following:
• "The deceased woman told Ms Ranger that she had to leave her man, Munchie, as he would flog her and she was not allowed to speak to her brothers as he got jealous."
• "She wasn't allowed to have a shower unless Munchie told her that she could."
• "The accused man would not allow her to go to work any more. She said she had to go to work with the accused man and wait for him to finish work because he was jealous."
• "She wanted to get away from the accused man."
43 These statements are relevant because they are capable of giving rise to inferences as to the deceased's character and attitudes which would be inconsistent with the accused's version of events as recounted in his video record of interview. On the basis of these statements, the jury would be entitled to come to the view that the deceased was not the type of woman who would have provoked an argument with the accused.
44 I come now to the question of the prejudice to the accused (or in terms of s 31A, the "degree of risk of an unfair trial") if the evidence in question is received. In this regard:
"The prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit." (McHugh J in Pfennig at 528).
45 Dealing firstly with the evidence of the "hearsay" statements by the deceased (categories (i) and (ii)) referred to earlier) these were assertions that on various occasions the accused had inflicted injuries including a fat lip, black eyes (on two occasions), a broken arm (on two or three separate occasions), a big lump on the forehead and a cut lip, a big 8-centimetre
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- scar on her head, and lacerations down the left side of her body including her chest, face and hand, and bruising to her right leg.
46 Quite obviously, the potential for the jury to misuse the hearsay content of these statements is quite high, and this is so irrespective of the warning I would give to them as trial Judge. When weighed against the probative value of the statements (namely their capacity to justify an inference that there were "difficulties in the relationship"), I think that the way the balance tips is quite clear. In my view, the potential for prejudice far outweighs the probative value and the evidence of the deceased's statements as to these past injuries should not be received.
47 However, to the extent that the deceased's statements to witnesses indicated her own state of mind and attitudes toward the accused, I consider that there is very little prejudice to the accused and I rule that they are admissible. (I will hear submissions from counsel if there is a need for any further refinement of this ruling).
48 With regard to the evidence of prior conduct by the accused indicative of a possessive, dominant attitude towards the deceased (category (iii) referred to earlier), I rule that this is admissible. It has significant probative value by reason of its relevance to the issue of whether or not events occurred on the night of 5 January 2004 in the manner contended by the accused. Furthermore, (and in terms of s 31A) I consider that the probative value of the evidence when compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing that evidence must have priority over the risk of an unfair trial.
49 I also rule that the direct evidence of witnesses as to observed acts of prior violence committed by the accused on the deceased (category (iv) referred to earlier) is admissible. This evidence is of significant probative value, which when compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing the same must have priority over the risk of an unfair trial.
50 Lastly, but subject to any objections that the accused may have on different grounds, I rule that evidence of his admissions as to past acts of domestic violence (category (v) referred to earlier) is also admissible.
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