The Queen v Mathew Neish [No 1]
[2013] ACTSC 23
THE QUEEN V MATHEW NEISH [No 1]
[2013] ACTSC 23 (7 February 2013)
EVIDENCE – admissibility – tendering evidence – res gestae – “context” evidence – whether admissible – relevance to issues at trial – whether direction should be given.
Evidence Act 2011 (ACT), ss 135, 137
J D Heydon, Butterworths, Cross on Evidence: Australian Edition, vol 1
Andrew Ligertwood and Gary Edmond, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis Butterworths, 5th ed, 2010)
DJV v the Queen (2008) 200 A Crim R 206
FDP v the Queen (2008) 192 A Crim R 87
Festa v the Queen (2001) 208 CLR 593
Harriman v the Queen (1989) 167 CLR 590
O’Leary v the King (1946) 73 CLR 566
Qualtieri v the Queen (2006) 171 A Crim R 463
R v Adam (1999) 106 A Crim R 510
R v Domokos (2005) 92 SASR 258
R v GAE (2000) 109 A Crim R 419
R v Lovegrove [1920] 3 K.B. 643
R v Sotheren (2001) 122 A Crim R 301
R v Yates [2002] NSWCCA 520
Samadi v the Queen (2008) 192 A Crim R 251
EX TEMPORE JUDGMENT
No. SCC 13 of 2012
Judge: Refshauge J
Supreme Court of the ACT
Date: 7 February 2013
IN THE SUPREME COURT OF THE )
) No. SCC 13 of 2012
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
MATHEW NEISH
ORDER
Judge: Refshauge J
Date: 7 February 2013
Place: Canberra
THE COURT ORDERS THAT:
The evidence of Sophie Carberry and Morgan Sutton as to words alleged to have been said to them by Mathew Neish may be adduced as context evidence.
No direction be given to the jury immediately prior or after the evidence has been adduced as to the particular case that should be made of the evidence.
THE FACTS
The events that give rise to the accused, Mathew Neish, being charged with recklessly inflicting grievous bodily harm on Thomas De Launey occurred in licensed premises known as the Soul Bar in Woden Square, Woden, ACT, on 15 October 2010.
The evidence, so far led, seems to suggest that an incident occurring between the girlfriend of Mr Neish and the girlfriend of Mr De Launey, who were both present at the premises on that night, led to Mr Neish and Mr De Launey coming together, and resulted in Mr Neish, as is not contested, though the circumstances and legal consequences are very much in issue, punching Mr De Launey.
I am now required to rule on whether certain evidence is admissible. The evidence of Amanda Roy, Mr De Launey’s girlfriend, was that Mr Neish, at some point in the evening, came up to her, and in circumstances where what was said was likely to be heard by Jennifer Boersma, Mr Neish’s girlfriend said to Ms Roy, “I want to suck your tits.”
Ms Roy said she replied, “Do you think I’m stupid? You can’t talk to me like that.” Ms Roy then said she went down to the ladies’ toilet in the premises. She saw Ms Boersma leave almost immediately before her, also to the ladies’ toilet.
Ms Roy said that she tried to speak to Ms Boersma but the two ended up shouting at each other until Ms Roy says she left the toilets and returned to the bar area of the premises.
In cross-examination it was put to Ms Roy that Mr Neish came up to her outside the premises and said to her, in the presence of two women, “Your boobs are going to fall out of your top.” She said she could not recall that being said to her. She said that if it had been said she would think it was silly but would “fix my top.”
It was then suggested to her that she said to Mr Neish, “What would your girlfriend say if she heard you say that to me?” She said Mr Neish had said that inside the premises after he had said, “I want to suck your tits,” but could not recall saying it outside. It was also put to her that Mr Neish said, “I don’t care, tell her if you want to,” or, “Go and tell her”. She said she could not remember that.
Mr De Launey gave evidence that he had gone to a nearby supermarket to buy some cigarettes and, when he returned, Mr Neish rushed out of the premises towards him saying, “You need to go sort out that bitch.” Mr De Launey said he replied, “Hang on a second, you know, if Amanda’s upset she’s probably got a reason to be.” Mr De Launey said that Mr Neish said, “It doesn’t matter, she’s just a fucking woman.”
Ms Roy had said earlier that when she went upstairs Mr Neish came over to her yelling at her with his fists up in the air and she said he yelled, “I’m going to kill you, slut.” He then turned and went outside. That is apparently when he went to Mr De Launey and, after the exchange that I have referred to above, when Mr Neish punched Mr De Launey.
THE ISSUE
Now giving evidence is Sophie Carberry, nee Charlton, who was also present at the licensed premises that night. Her evidence was that although she did not previously know Mr De Launey or Ms Roy, she met them that night while they were smoking outside. She said that they had exchanged small talk and first names. She further said that at some stage Mr Neish came up to her and said something to her.
Mr J Pappas, counsel for Mr Neish, objected to the evidence of what Mrs Carberry says that Mr Neish said to her. I have dealt with this matter in the absence of the jury.
In a statement to police, Mrs Carberry told them that Mr Neish said to her as he walked past her words to the effect of, “Your box looks nice in those jeans.” I understand “box” refers to her external genitalia. I have also been provided with a statement to police made by Morgan Sutton, another woman at the premises, who was, at the time, with Mrs Carberry. Ms Sutton says she heard the comment made by Mr Neish as she and Mrs Carberry walked past. She also said that Mr Neish said to her, “I love your tits.” This evidence is encompassed within the objection.
SUBMISSIONS OF THE PARTIES
Mr Pappas said that the evidence was of little probative value and of unfair prejudice to the accused. Of course, if I so find, I must exclude the evidence under s 137 of the Evidence Act 2011 (ACT) (the Evidence Act). He further submitted that it was tendency evidence and no notice had been given. His third objection was that it was to be used to strengthen the evidence of Ms Roy that she had given of Mr Neish saying to her, “I want to suck your tits.” He said that it “becomes more likely if the jury were to accept that something of this nature was said relatively contemporaneously to another patron in the bar.”
Mr M Fernandez, Crown prosecutor, submitted that he was not adducing the evidence as tendency evidence, but as probative of Mr Neish’s state of mind. He submitted that it was contextual evidence, putting the circumstances of the evening in “some sensible perspective” which otherwise meant that “the evidence in isolation is somewhat incoherent.” He further submitted that the evidence was part of the res gestae.
THE EVIDENCE AS PART OF THE RES GESTAE
The notion of res gestae has been trenchantly criticised (see, for example, J D Heydon, Butterworths, Cross on Evidence: Australian Edition, vol 1 (at Service 122) [37,170]). It is helpfully defined in Andrew Ligertwood and Gary Edmond, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis Butterworths, 5th ed, 2010) at 745; [8-35] n 82 as follows:
Res gestae refers to matters surrounding and comprising events or transactions in issue. The phrase is most often used as embodying rules of law that purport to allow courts to receive information relating to such contemporaneous matters. But it is often unnecessarily used. The fundamental concept of relevance is usually sufficient to admit evidence of such surrounding matters.
It seems to me that the evidence that is challenged is not part of the res gestae, but it does go to an explanation of the background to the acts and events that are said to constitute the offence. Clearly, at issue in this trial is the reaction of Ms Roy, both to the comments made to her and her interaction with Ms Boersma. This was the issue, apparently unchallenged, that Mr Neish raised when meeting Mr De Launey outside the Soul Bar on that night. It clearly had concerned him, such as to require him to need to discuss it with Mr De Launey.
The context of this is, then, the behaviour of Mr Neish on the evening and the comments he made to other women and, perhaps, their reaction or lack of reaction to him. This seems to provide a context for what was alleged to have been said to Ms Roy and her reaction to it. That is to say, it sets the scene for the incident that gives rise to the charges. It shows, if accepted, that the accused made disparaging and inappropriate sexually charged comments to women in the bar, with relative impunity, so as to explain why the reaction of Ms Roy and her interaction with Ms Boersma might cause Mr Neish to behave so aggressively.
In that sense, it has some principled connection – although not a factual connection – with relationship evidence, as put in the context of cases of sexual assault by the Victorian Court of Appeal in R v GAE (2000) 109 A Crim R 419 at 426; [22]:
Where there is only one count on a presentment, a truthful complainant is likely to be disbelieved if relationship evidence is excluded, and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue.
Similarly, in R v Domokos (2005) 92 SASR 258 at 266-7; [45], Doyle CJ, with whom Perry and Sulan JJ agreed, said:
When the whole course of conduct is surveyed with the other circumstantial evidence, in particular the evidence of associations between the appellants, the whole picture including the challenged evidence has a persuasive effect. To my mind, this is a case of proving something akin to an ongoing business enterprise, the existence of which then gives to things occurring in the course of that enterprise, a significance that they would not otherwise have.
It is, perhaps, not exactly such evidence, for there are different issues involved in relationship evidence of that kind which will commonly be of the relationship between the accused and the complainant - which is clearly not the case here.
It is a somewhat different kind of evidence, more accurately described in FDP v the Queen (2008) 192 A Crim R 87 at 97; [37] as follows:
It is the type of evidence that was recognised at common law in a series of cases including O’Leary v the King (1946) 73 CLR 566, Wilson v The Queen (1970) 123 CLR 334 and Harriman v The Queen (1989) 167 CLR 590; 43 A Crim R 221. Such evidence has been admitted as evidence either of the relationship between the accused and some other person, or of a connected series of events such that what occurred at one particular point in time in that relationship or in that series of events was relevant to a determination of what occurred at another point in time when the offence was committed. This type of evidence continues to be admissible under the Evidence Act:R v Quach (2002) 137 A Crim R 345.
In Samadi v the Queen (2008) 192 A Crim R 251, evidence of an offence alleged to have been committed by the accused later the same evening on certain people was admitted as such evidence in respect of another offence, not as tendency or coincidence evidence, but evidence of the state of mind of the accused at the earlier time.
In Harriman v the Queen (1989) 167 CLR 590 at 632, McHugh J referred to such evidence as admissible, “although disclosing criminal behaviour by an accused, because it tends to corroborate the truth of part of a witness’ evidence”. His Honour then referred to R v Lovegrove [1920] 3 K.B. 643, where evidence was admitted of a witness, on whom the accused had previously performed an abortion, that she had told the husband of another woman, on whom the accused was charged with having performed an abortion, that she had had an abortion and given the address of the accused to him.
This evidence was said to support the evidence of the husband’s interview with the accused and that he “had taken his wife to the house of the accused” for the purpose of having an illegal operation performed on her.
McHugh J at 633 also referred to the admissibility of such evidence, which “is characterised as part of a transaction which embraces the crime charged.” Such evidence is admissible without further condition.
In R v Sotheren (2001) 122 A Crim R 301 at 308; [45], Dowd J summarised the effect of O’Leary v the King (1946) 73 CLR 566 helpfully as follows:
The common thread in each of the judgments of the majority is that to be admissible, the facts and circumstances must make intelligible the whole course of conduct pursued and that the ingredient parts of the transaction can then form part of the chain of facts which could be regarded as a connected course of conduct.
It seems to me, following R v Adam (1999) 106 A Crim R 510, that the principle in O’Leary v the King applies, rendering this evidence admissible notwithstanding the enactment of the Evidence Act, so that it is not tendency evidence and that as integral part of the connected series of events leading up to the incident out of which the charge was laid, it is admissible, if not, excluded under s 137 of the Evidence Act.
In approaching the evidence in this way I have tried to follow the steps suggested by McLellan CJ at Common Law in DJV v the Queen (2008) 200 A Crim R 206 at
211-2; [17]-[18] which his Honour had outlined earlier in Qualtieri v the Queen (2006) 171 A Crim R 463 at 487; [80]. In particular, should the evidence be admitted, I will give an appropriate direction as to the use to which the jury can make of the evidence.
THE EVIDENCE AS UNFAIRLY PREJUDICIAL
The final issue, then, is whether the evidence is unfairly prejudicial. That phrase has generally been used to mean that the jury will give it more weight than it deserves, that there is a risk that the jury will adopt an illegitimate form of reasoning, or that the nature or content of the evidence may inflame the jury or divert the jurors from their task. See Festa v the Queen (2001) 208 CLR 593 at 609-10; [51]; R v Yates
[2002] NSWCCA 520 at [252]. This is, of course, a judgment that the Court must make in the context of the trial and the evidence. I have not, of course, heard all the evidence nor, indeed, any evidence from Mr Neish. I may never do so. There has, however, been extensive cross-examination of the complainant, Mr De Launey, and his girlfriend, Ms Roy. From that I can accept that Mr Neish does not appear to challenge that he made disparaging and sexualised references to Ms Roy.
For example, it appears unchallenged that he referred to Ms Roy as “your bitch” when speaking to Mr De Launey and possibly that Mr Neish said words to the effect of “You need to go sort out your fucking woman.” It seems also clear, though Ms Roy did not remember it, that there was no challenge to Mr Neish saying “Your boobs are going to fall out of your top.” It also appears from the cross-examination that Mr Neish may have used the word “slut,” in connection with Ms Roy. It was unclear whether Mr De Launey’s statement that Mr Neish said “it doesn’t matter, she is just a fucking woman” was challenged, and, indeed, whether Ms Roy’s statement that Mr Neish said, “I want to suck your tits” was challenged also. Neither were the subject of direct challenge, although there was indirect challenge suggesting that they were at issue.
It seems to me that, even excluding the statements in [12], the total of Mr Neish’s conversation in the evening was sexualised and chauvinistic. In that context, it does not seem to me that the challenged evidence would influence the jury or divert them from their task. I do not see, either, that the evidence will lead the jury to reason improperly; and that will be reinforced by strengthening the usual direction that the jury that they should not let prejudice or bias affect their dispassionate assessment of the evidence. They should be told - and I will do so - that any bad language or behaviour cannot, of itself, justify a finding of guilt without evidence that satisfies them beyond reasonable doubt of the facts necessary to prove the elements of the offence.
Having found that s 137 of the Evidence Act does not exclude the evidence, it does not seem that s 135 has any room within which to operate.
CONCLUSION
Having carefully considered the matter I will permit the evidence, to which objection has been taken, to be adduced.
ADDENDUM
After I had delivered these reasons and circulated a draft direction, Mr Pappas requested that I not give the direction at that time, though I would have to give it in due course, which I did.
Mr Pappas submitted, given the course of the proceedings, namely the taking of the objection, the retiring of the jury, their dispersal before the delivery of reasons and the delay while giving reasons, that a direction at that time would serve to emphasise the evidence and risk giving it a prominence that it did not deserve. He submitted that, until any “countervailing version” is adduced there, could be a risk to the fairness of the proceedings to the accused.
I was troubled by that, as the authorities make it generally clear that a direction should be given at the time the evidence is given. See, for example, Qualtieri at 487; [80]. I am also conscious of the need to ensure a fair trial for an accused.
Mr Pappas sought express and specific instructions and said:
My application is a conscious forensic decision made by me as trial counsel on specific instructions of the accused, to invite your Honour not to highlight this evidence because [it would be more prejudicial than not].
Despite the Crown’s hesitation and, indeed, my own hesitation, I did refrain from giving a direction at the commencement or conclusion of the evidence, though a direction was later given.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013
Counsel for the Crown: Mr M Fernandez
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J Pappas
Solicitor for the defendant: Ben Aulich & Associates
Date of hearing: 7 February 2013
Date of judgment: 7 February 2013
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