The State of Western Australia v Clark
[2019] WASC 206
•17 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CLARK [2019] WASC 206
CORAM: MCGRATH J
HEARD: 1 APRIL 2019
DELIVERED : 17 JUNE 2019
FILE NO/S: INS 204 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRADLEY BRIAN CLARK
Accused
Catchwords:
Nil
Legislation:
Criminal Code (WA), s 283(1), s 401
Result:
Evidence admissible
Category: B
Representation:
Counsel:
| Prosecution | : | Mr B Stanwix |
| Accused | : | Mr I D Hope |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Ian Hope Barrister & Solicitor |
Case(s) referred to in decision(s):
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Hillstead v The Queen [2005] WASCA 116
Liyanage v The State of Western Australia [2017] WASCA 112
Minhaj v The Queen [2000] WASCA 52
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Zammit (1999) 107 A Crim R 489
The State of Western Australia v BLM (2009) 40 WAR 414
MCGRATH J:
Mr Clark has been indicted on two counts, being one count of aggravated burglary contrary to s 401(2)(a) of the Criminal Code (WA), and one count of attempting to unlawfully kill Scott Adam Lole contrary to s 283(1) and (2) of the Criminal Code.
Mr Clark has pleaded not guilty to both counts and is proceeding to trial between 24 and 28 June 2019.
Mr Clark objects to parts of the evidence sought to be adduced by the State at trial. Accordingly, it is necessary that the objections are determined prior to the commencement of trial.
The State's case
The State's case is outlined at paragraphs 2 to 23 of the State's Outline of Submissions and the Amended Statement of Material Facts that forms part of the State's Brief of Evidence. The facts, as outlined in the State’s Outline of Submissions, are in the following terms:
Scott Adam Lole met Jessica Cardy face‑to‑face for the first time on Friday 24 November 2017 after communicating with her on Facebook for about a week.
That night, Friday 24 November 2017, Mr Lole and Ms Cardy had sex at her home. Mr Lole stayed the night and on into the next day. Shortly after midday on 25 November 2017 Mr Lole was repeatedly slashed and stabbed with knives and a screwdriver by Ms Cardy's former de facto, the accused man Bradley Brian Clark, who did so in an attempt to murder Mr Lole.
Mr Clark's attempt to murder Mr Lole took place during the course of an aggravated home burglary in which Mr Clark had entered Ms Cardy's home without her consent and committed the offence of unlawful assault upon Mr Lole.
Bradley Clark had been in a relationship with Ms Cardy for about 10 years and he had four children with her. They had recently separated but Mr Clark would still visit from time to time and had much of his property stored at Ms Cardy's home at 30 Honeyeater Retreat, Brookdale. He was living mostly at his mother's house.
By viewing her social media activity, Mr Clark came to know that Ms Cardy was dating other men. It was a development he didn't take well. He became jealous and fixated, and on 25 November 2017 his jealousy turned into fury upon learning that Mr Lole was at Ms Cardy's home and had had sex with her.
On another occasion not long before the incident on 25 November 2017 the accused suspected that Ms Cardy had a man at her home. It bothered him so much that he travelled by train to 30 Honeyeater Retreat in the middle of the night to check whether someone was there. There was no violence on that occasion.
On the night of 24 November 2017 Mr Clark also knew that Ms Cardy was seeing another man.
At 4.44 am Mr Clark received a message on his mobile that read as follows:
You're never going to see Jess's big arse bounce on your dick again bud. I gave her all she could handle and she's still screaming for more, bet you're crying like a bitch now you woman basher ... I'll treat her mean and she'll stay keen, haha thanks maggot.
Mr Clark would later tell police that this message came from a number he didn't recognise. That was a lie. Phone records reveal that the message was in fact sent by Mr Clark himself - from his own phone, to the same phone. It was a fake. He had sent himself a message designed to look like it was from a man who had recently had sex with Ms Cardy and was taunting him about it.
A short time after sending this message to himself, at 6.18 am, the accused man began conducting a fake text message conversation by again using his own phone to send messages to the same phone. This time he used a contact he created with the name "+6104094367", but which was simply a name for his own phone number, so that when they appeared on his phone screen they appeared to be from a different number rather than his own.
The fake text conversation purported to be with a person interested in buying a motorbike being kept at Ms Cardy's home. Part way through the conversation Mr Clark even sent Ms Cardy a message saying "Ay got someone might want to buy bike" and tried unsuccessfully to call her. The fake conversation was a ruse designed to give Mr Clark a seemingly legitimate reason for going to Ms Cardy's house - because that's where the bike was.
The accused man did indeed go to the house, a little while after 11 am that day, but his real reason for going there was that he could not bear to think of Ms Cardy being with another man. When he arrived, Ms Cardy told him to leave but he wouldn't. She told him she had had sex with Mr Lole. He had a brief verbal altercation with Mr Lole in the bedroom and kept asking Ms Cardy to talk to him and tell Mr Lole to leave. She refused and the accused man took a knife from the kitchen drawer but ultimately left without incident.
He sent text messages to Ms Cardy again asking her to talk to him and to tell Mr Lole to leave. Again she refused.
Mr Clark returned to the house and spoke to Ms Cardy at the front door. She told him to leave and warned him that she was going to call the police if he didn't. He refused to leave, and instead pushed past her into the house and took out a large Stanley knife. He said "I'm gonna slice this cunt up. I'm going to kill him." Ms Cardy saw the knife and retreated outside and telephoned the police.
Meanwhile, Mr Clark went to the bedroom and attacked Mr Lole with the Stanley knife, telling him "I'm going to kill you for fucking my missus" then immediately striking him to the face and causing a very large, deep cut to the left side of Mr Lole's face. They struggled and the accused man struck Mr Lole repeatedly with the Stanley knife. Mr Lole grabbed at the blade and tried to hold it despite it cutting into the webbing of his hand.
Mr Lole said he'd had enough and couldn't take anymore, and the accused man responded by laughing and saying "I'm going to kill you." Mr Lole managed to eject the blade from the knife body and again told Mr Clark he couldn't take anymore. This time Mr Clark walked out of the room and returned with a screwdriver and a kitchen knife then attacked Mr Lole again.
He stabbed Mr Lole with the screwdriver near his armpit and again in the back over his left shoulder blade. He slashed at him with the knife at the same time. Mr Lole said "I'm done" and sat shaking in shock and pain. Mr Clark left the room and then walked from the house covered in Mr Lole's blood.
Police arrived a short time later in response to Ms Cardy's call and apprehended Mr Clark at a nearby park. He was still armed with two kitchen knives. The Stanley knife body and blade were recovered from the bedroom, as was a Phillips head screwdriver.
Mr Lole was taken to Royal Perth Hospital where he underwent surgery to repair the large cut to his face. Doctors also recorded a large number of other incised wounds and lacerations to his hands, limbs, body and head. He had puncture wounds to his left pectoral area and over his left shoulder blade.
Mr Clark was taken by police to Armadale Police Station where he participated in an EROI. He lied about the text message from 4.44 am, telling police he'd got it from an unknown number.
However, he also made numerous admissions. He admitted to going to the house late that morning, to seeing Mr Lole there on the bed, and to Ms Cardy asking him leave. He admitted to going back to the house after trying to text and call Ms Cardy. He admitted to going into the bedroom and hitting Mr Lole, but he said he didn't have a knife and that Mr Lole produced a knife instead. He admitted to speaking with Ms Cardy immediately prior to going into the bedroom, and that she went outside to call the police as soon as he announced that he was going into the bedroom to go and hit Mr Lole. He also admitted that she had asked him to leave and come outside to speak to him on the second occasion prior to him attacking Mr Lole.
The objections
Mr Clark’s objections are outlined in the Defence's Outline of Submissions dated 28 February 2019. There was no application that delineates with clarity the objections. I have discerned that the following objections are being made to the State's proposed evidence at trial.
Objection One - The accused objects to portions of the 000 call made by Ms Cardy on 25 November 2017.
Objection Two - The accused objects to photographs of the injuries to the complainant in count 2.
Objection Three - The accused objects to evidence of the accused's self-inflicted injuries to his arm sustained on 23 October 2017.
Objection Four - The accused objects to the material downloaded from his mobile phone, namely, material that supports the State's contention that the accused inflicted injuries to himself on 23 October 2017.
Objection Five - The accused objects to the evidence of a police officer that the accused, at the time of his arrest, refused to release the knives he was holding and that he told the police to shoot him.
Objection Six - The accused objects to portions of the electronic record of interview (EROI) conducted on 25 November 2017.[1]
[1] State's Brief of Evidence, p 259 - 289.
I will consider each of the objections.
Objection One - 000 call
The accused initially objected to the entire 000 call. At the commencement of the directions hearing, counsel for the accused submitted that the objection to the entire 000 call was no longer being pursued. Rather, the accused objects to specific portions of the 000 call. Counsel for the accused provided a copy of the transcript of the 000 call with proposed edits marked. The State and accused were unable to agree concerning the objections delineated. Therefore, it is necessary that I consider each objection line by line and page by page. I do so now by reference to the transcript marked with the proposed edits.
000 call objection one - BP 249
Objection one to the 000 call concerns the utterance of Ms Cardy to the operator that 'my ex is tryin' to stab m, m par-, my new, um, boyfriend' and further 'Yeah. He is. He's tryin' to stab him'. The operator then asks ‘Has he got a, has he got a knife?' Ms Cardy then states ‘Oh, yeah, yeah. He does. I don't know what he's doing. I'm outside'.
The accused submits that Ms Cardy is speculating as to what is occurring inside the room where the accused and the complainant are located, in circumstances where Ms Cardy is not present. The issues at trial concern the events which unfolded in the room. Counsel for the State accepted that was the case but submitted that the trial judge could direct the jury that Ms Cardy was drawing a conclusion which is not able to be relied upon.[2] Further, the utterance of Ms Cardy is necessary to put the proceeding conversation in context. The utterance of Ms Cardy is admissible. Ms Cardy clearly states that she is outside and that she does not know what the accused is doing. The utterance made to the operator is no more than Ms Cardy informing the 000 operator of her concern regarding an incident. That Ms Cardy is outside and not observing the incident would be understood by the jury from the very telephone call. In any event, the trial judge may direct on that issue. The objection is dismissed.
000 call objection two - BP 251
[2] ts 24 ‑ 25 (directions hearing).
The accused objects to the answer given to the question asked by the 000 operator concerning whether the incident is happening in the back of the house. To that question Ms Cardy states 'Yep. In my room, I'm pretty sure'. The accused states that the statement is speculative. I do not accept that the statement of Ms Cardy is speculative. Ms Cardy's belief at the time was that the accused and the complainant were in her room. That the accused and the complainant were in that room does not seem to be an issue in dispute at trial. Rather, as I understand the defence case, it is accepted that the accused and the complainant did come together in that room and the only issue at trial is what occurred within the room. The objection is dismissed.
The accused further objects to the utterances of Ms Cardy following what appears to be her observations of the complainant as she entered the bedroom. During the 000 call Ms Cardy states to the operator 'Oh, he needs an ambulance immediately'. To that statement the operator says 'Yeah, yeah. What, listen, listen, somebody's ringing St John's for us. What's his injuries?' To that question, Ms Cardy stated 'He's stabbed'. The operator then says 'Where, where?', Ms Cardy stated 'I have no idea'. The operator, in an endeavour to clarify, said '[w]ho's been stabbed? Who's been stabbed?' to which Ms Cardy says 'Scott'.
The objection of the accused appears to be that Ms Cardy does not know that the complainant has been stabbed and that her statement is speculative.
I disagree with the accused's construction of the 000 call. Properly understood, Ms Cardy has observed the complainant with injuries that appear to be stabbing type injuries. The objection is dismissed.
000 call objection three - BP 252
The accused objects to the statement of Ms Cardy in answer to the question of the operator inquiring as to what injuries Scott has sustained. To that question Ms Cardy states 'Yep. Okay. Scott, where did he stab you?' The accused contends that Ms Cardy is speculating and has formed a conclusion that it was the accused who stabbed the complainant. I agree that the utterance should be edited from the 000 call. The statement implies a belief of Ms Cardy that the accused deliberately stabbed the complainant. That is a significant issue at trial.
The accused also objects at page 252 to the operators inquiry 'Is he, is he serious bleeding? Is it serious?' to which Ms Cardy states 'Yeah. He's seriously bleeding'. The accused says that the statement is emotive and should not be received. I disagree. Ms Cardy is doing no more than reporting what she is observing to the operator. The objection is dismissed.
000 call objection four - BP 253
The accused objects to the utterance of Ms Cardy where she tells the operator that 'He can't lie down. He can't', in reference to the complainant's inability to lie down. The accused says that it is a speculative statement. I disagree. It is no more than Ms Cardy relaying to the 000 operator what she is observing.
At page 253 the accused further objects to Ms Cardy's statement to the 000 operator in respect of the complainant that 'He's gonna fuckin' hate me'. The statement of Ms Cardy properly understood is an expression of her belief that the complainant is ultimately going to blame her for becoming involved with her domestic dispute. That part of the 000 call should be subject to edit. The objection is accepted.
000 call objection five - BP 254
The accused objects to the portion of the transcript at the top of page 254 which is in the following terms:
CO:I know it's traumatic for you, but are you able to give me a quick description of Bradley for me? We're gonna try and
JC:Indistinct
CO:Look him up, obviously. He's what?
JC:Youse, youse know what he looks like. He's been with you plenty of times.
CO:Oh, okay. Are you with, tell [indistinct].
JC:I just have to give the name. I just have to give the police a name and they'll know who it is.
The accused objects to that portion of the 000 call on the basis that the accused has informed the operator that the accused is a person known to the authorities. The inference which arises is that the accused is a person known to police for prior criminal conduct. I agree that the edit should be made because the material is objectionable.
The accused further objects at page 254 to the operator saying to Ms Cardy 'you're doing really well. Stay with me'. The accused says that the statement of the 000 operator is emotive. I disagree. The 000 operator is doing no more than reassuring the caller, being Ms Cardy. The utterance of the 000 caller is admissible.
000 call objection six - BP 255
At page 255 the accused objects to the utterance of Ms Cardy telling the 000 operator that the accused may return and whilst she has locked the doors 'he'll smash to get inside'. The accused says that is a conclusion reached by Ms Cardy. I agree that the utterance should be edited from the 000 call.
Further, at page 255 of the 000 call the accused objects to the utterance of the 000 operator saying the accused should not be able to get in but 'you must let the police in'. Immediately after making that statement there is discussion from the 000 operator recommending that Ms Cardy keep the complainant breathing and talking until the first responders arrive. That portion of the 000 call is admissible. There is no basis for that material to be inadmissible. That part of the objection is dismissed.
At the foot of page 255 the accused objects to the utterance of Ms Cardy, stating 'Oh, my God. My room's like a murder site'. The State accepts that should be deleted from the 000 call. Accordingly, that utterance will be edited from the 000 call and is inadmissible.
000 call objection seven - BP 256
The accused objects to the following at page 256:
CO:Okay.
JC:They, they - - -
CO:Just - -
JC:They'll be here five minutes, hopefully. Okay.
CO:Okay. Alright. I'm g, - -
JC:I'm so sorry.
CO:Listen, listen, listen, listen, the police are nearly there. Watch out for them. Is your door open?
JC:No. My door is not open. I've just got to - -
CO:[indistinct] listen, listen.
This is admissible. I disagree that the utterances of the 000 operator and Ms Cardy should be deleted.
At the foot of page 256 Ms Cardy informs the 000 operator 'they tasered him'. The State agrees that as that is a reference to the police tasering the accused it should be deleted. I agree.
Objection Two - Photographs of injuries to the complainant
The State proposes to lead evidence of photographs of the injuries sustained by the complainant. Photographs of the complainant depicting his injuries form part of the State's Brief of Evidence.[3] During the directions hearing, counsel for the State provided two bundles of photographs. The first bundle comprised photographs of the complainant which are reproduced in the State's Brief of Evidence. The second bundle of photographs depict the complainant in situ at Ms Cardy's residence receiving treatment from the first responders.
[3] State's Brief of Evidence, p 135.
Counsel for the State confirmed that the State will rely upon photographs six to nine of the first bundle (which form part of the photographs at page 135 of the State's Brief of Evidence). However, whether the other photographs will be relied upon is an issue that will be determined by the counsel for the State who ultimately appear at trial. Counsel stated that there would be further conferral with trial counsel for the State. Accordingly, I am only required to determine photographs six to nine inclusive.
Counsel for the defence agreed that photograph six, which depicts an injury to the complainant's finger, may be relied upon by the State at trial.
Photographs seven to nine inclusive show the complainant's face prior to receiving medical treatment but lying on a bed which appears to be in a hospital. The photographs show an apparent deep cut to the lower part of the complainant's face. The complainant has blood splatter on his face and a white gauze is evident below the injury. In respect of photographs seven to nine inclusive, which depict the injury to the face of the complainant, the defence objects on the basis that the photographs are of limited relevance but 'will likely evoke emotions of abhorrence, anger and even hatred' towards the accused.[4]
[4] Outline of Defence Submissions in Objection to the Admissibility of Evidence [15].
The defence submits that the proposed testimony of Dr Ryan will be relied upon by the State to establish the nature of the injuries received by the complainant. Further, that the description of the injuries given by the medical practitioner provides the necessary evidence for the State case.[5]
[5] Outline of Defence Submissions in Objection to the Admissibility of Evidence [14] - [15].
Dr Ryan confirms that the complainant presented with multiple stab wounds to his bilateral arms and hands, chest, back, face, lip, shoulder, axilla and abdomen.[6] Dr Ryan, in respect of the wound to the face of the complainant, gave this description:
The deepest wound was on the face extending through the masseter muscle and dividing branches of the facial nerve. Two branches of the facial nerve were repaired with micro sutures. The facial artery was also reported to be injured. This was not repaired.[7]
[6] Statement of Dr Ryan, State's Brief of Evidence, p 110.
[7] Statement of Dr Ryan, State's Brief of Evidence, p 111.
The State contends that the extent of the injuries sustained by the complainant is highly relevant. The State's submission is that the extent of the injuries will be relevant to the jury considering what happened during the incident between the accused and complainant. The accused in his EROI stated that there was a scuffle on the bed and that he only noticed the injuries to the complainant after they had been inflicted. This is in contrast to the complainant's proposed testimony that he was attacked by the accused who was brandishing a knife and inflicting injuries.
It is not controversial that evidence is not admissible unless it is relevant to an issue at trial. In order for that evidence to be relevant it is necessary that it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[8]
[8] Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303.
Relevant evidence may be excluded if its prejudicial effect exceeds its probative value.[9] Evidence is prejudicial when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.[10]
[9] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 191 - 192.
[10] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [51].
There are a number of cases which have considered the exercise of the discretion to exclude photographs that graphically depict injuries of the body of a deceased person.[11] Though, each case depends upon the relevant circumstances of that case.
[11] Liyanage v The State of Western Australia [2017] WASCA 112; Hillstead v The Queen [2005] WASCA 116; Minhaj v The Queen [2000] WASCA 52; The State of Western Australia v BLM (2009) 40 WAR 414 [71]; R v Zammit (1999) 107 A Crim R 489.
In R v Zammit[12] Wood CJ at CL observed:
The sensitivity of jurors to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value … should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all.
[12] R v Zammit [156].
I consider that the photographs of the complainant's face are relevant in that:
(i)The photographs are primary evidence of the extent of the injury to the face which tend to support the complainant's evidence concerning the incident with the accused; and
(ii)Determining the degree of force and deliberation used to inflict the injury. Thereby, in assessing whether the accused had the requisite intention to kill the complainant.
The photographs of the wound to the complainant's face are confronting. I accept that the photographs have probative value in determining the degree of force and deliberation used to inflict the injuries to the complainant and, therefore, the intention of the accused. The photographs will assist the jury in understanding the evidence of the medical practitioner. A diagram or description would be inferior to the photographs in the jury's determination of the questions that they would be asked to consider.
I do not consider that the probative value is outweighed by the prejudicial effect. The trial judge will, undoubtedly, give a direction concerning the photographs in terms similar to that approved in Hillstead v The Queen[13] and Minhaj v The Queen.[14] I do not consider that a properly directed jury would determine the case otherwise than according to law and by a proper assessment of the entire evidence at trial.
Objections Three and Four - The accused objects to the evidence of his self-inflicted injuries on 23 October 2017
[13] Hillstead v The Queen [63].
[14] Minhaj v The Queen [15].
Objections Three and Four arise from the same issue that is in dispute between the parties. The State proposes to lead evidence that on 23 October 2017 the accused inflicted injuries to himself. The State relies upon evidence from Royal Perth Hospital that on 23 October 2017 the accused presented for medical treatment. The presenting history, as recorded by the medical practitioner, states that the accused self‑harmed whilst intoxicated on the previous night by the infliction of a laceration to his left forearm with a Stanley blade. The medical report records that the accused reported that he 'impulsively decided to self‑harm nil thoughts of suicide or self‑harm, pt states “it all just became too much”.’[15] The State proposes to lead evidence from the relevant witness to confirm the medical report. This objection was particularised as Objection Three.
[15] Royal Perth Hospital Adult Triage Nursing Assessment dated 23 October 2017.
Objection Four is an objection to the State leading evidence of photographs of the self-inflicted injuries to the arm which were downloaded from the accused's mobile phone.[16] The downloaded material from the mobile phone will not otherwise be relied upon. The relevant parts of the mobile phone downloads relate only to five photographs taken on 23 October and 29 October 2017.[17]
[16] Photographs of accused injuries sustained on 23 October 2017, State's Brief of Evidence, p 210, 226 - 232.
[17] Mobile telephone download records, State’s Brief of Evidence, p 210; Photographs, p 210, 226 - 232.
The State contends that the evidence of the self‑inflicted injuries is relevant to a fact in issue in the trial. At the time of the accused's arrest on 5 November 2017, he was found by police with three parallel incised wounds to his left wrist.[18] In his EROI the accused contended that those injuries were sustained when he was attacked by the complainant.[19] The accused stated that the injuries were sustained when the complainant used a Stanley trimming knife.[20] The accused stated that he recognised the Stanley trimming knife as one that he had used to attempt suicide on a previous occasion.[21]
[18] Photographs of accused’s left wrist, State's Brief of Evidence, p 136.
[19] EROI, State's Brief of Evidence, p 281.
[20] EROI, State's Brief of Evidence, p 285.
[21] EROI, State's Brief of Evidence, p 285.
The State submits that it is anticipated that the accused will contend that he acted in self-defence when inflicting the injuries to the complainant and that the injuries to his person were sustained in self‑defence.
The State, therefore, submits that the accused inflicted injuries on 23 October 2017 which are similar in type and location to the injuries sustained during the incident the subject of the indictment. The State further submits that the self-inflicted injuries were sustained during a period when the accused must have been distressed and, therefore, the injuries sustained on 25 November 2017 must also have occurred in similar circumstances, that being marked by personal distress.
During the hearing I asked counsel for the State whether the State proposed to lead evidence that supports the proposition that the injuries sustained on 25 November 2017 were self-inflicted. Counsel confirmed that there will be no such evidence given it is not possible from medical observation to determine whether the injuries sustained on 25 November 2017 were self-inflicted.[22]
[22] ts 52 (directions hearing).
Accordingly, the State's proposition that the injuries sustained on 25 November 2017 were self-inflicted relies upon the assertion that the accused self-harmed over a month earlier by inflicting injuries of a similar nature to his arm. Therefore, while in a distressed state on 25 November 2017, the accused has once again self-harmed.
As I have observed it is not controversial that evidence is not admissible unless it is relevant to an issue at trial. In order for evidence to be relevant it is necessary that it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[23]
[23] Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303.
I am of the view that the evidence is relevant for the reason that it could rationally effect the assessment of the probability of the existence of a fact in issue, namely whether the injuries sustained by the accused on 25 November 2017 were inflicted by the complainant in circumstances when the accused contends he was acting in self‑defence. The accused on 17 October 2017 inflicted injuries of a similar nature to his arm using the same Stanley trimming knife that the accused contended, in his EROI, was used by the complainant on 25 November 2017.
Accordingly, the evidence concerning the self-harm inflicted on 17 October 2017 is admissible.
Objection Five - The accused objects to the evidence of a police officer that the accused, at the time of his arrest, refused to release knives that he was holding and told the police to shoot him
The accused objects to evidence from the first responding police officers that the accused refused to release the knives he was holding and that he told the police to shoot him.
The State proposes to lead evidence of the circumstances of the arrest, being the fact that the accused held two knives and made the utterance 'Go on, fucking shoot me, fucking shoot me.' The State does not intend to rely upon the other circumstances, namely the tasering of the accused.
Police Constable McIntosh[24] in his statement refers to locating the accused in a local park. Upon approaching the accused, Police Constable McIntosh observed that the accused was holding two knives. Consequently, the officer directed the accused to drop the knives to which the accused replied 'Go on, fucking shoot me, fucking shoot me.' Police Constable McIntosh had his firearm out of his holster. The accused was then tasered by Police Constable Myren.
[24] Statement of Police Constable McIntosh [12] - [20], State's Brief of Evidence, p 48 - 49.
Police Constable Myren's proposed testimony is that when he walked towards the accused he observed that the accused was holding two knives, each being about 15 cm long and each with blood on them. After repeatedly requesting that the accused drop the knives the officer drew his firearm with further instructions to drop the knives. Police Constable Myren does not refer to the utterance of the accused. Senior Constable Grant and Police Constable Segreto were present and they also outline the circumstances of the accused's arrest except neither refer to the utterance of the accused.
The State contends that the utterance 'Go on, fucking shoot me, fucking shoot me' is relevant in that the utterance supports the contention that the accused was in a distressed state and, therefore, assists the jury in evaluating the circumstances of the offending and, further, whether the accused self-inflicted the injuries that he sustained on 25 November 2017.
I am of the view that this evidence is admissible. There is a very close temporal proximity to the actual incident. The jury may consider the evidence in determining whether such conduct is inconsistent with someone who just had to defend himself from a stranger or more consistent with a person who had lost control, attacked a stranger and then engaged in self-harm.
Objection Six - The EROI
The accused objects to specific questions and answers in the EROI. Counsel for the accused provided to the State the transcript of the EROI with objections and proposed edits marked. I received that transcript with the proposed edits at the directions hearing. Whilst some of the proposed edits were agreed, many were not. It was necessary, therefore, to consider the objections individually.
I will refer to each objection by reference to the paginated number given to the transcript in the State's Brief of Evidence. The objections that have been agreed will not be outlined. I will only refer to the portions of the EROI subject to the objections that, regrettably, have not been agreed.
EROI Objection (a) - BP 267
Objection (a) to the EROI concerns the utterance of the accused where he refers to being tasered by the police officers who had their guns and tasers drawn.
The State agrees to the objection in part, contending that the reference to one police officer having his 'gun out' should remain. The remainder of the paragraph the subject is not objectionable and admissible. I agree. The portion to be edited comprises the lines that follow the sentence that ends with the words 'one had their gun out'.
EROI Objection (d) - BP 270
The accused objects to his utterance that 'about three months ago when I attempted suicide'. For the reasons outlined in Objections Three and Four, I consider that this answer is admissible.
EROI Objection (e) - BP 271
The accused objects to the question asked by the officer being 'But before that, it was sort of her house but you were free to come and go?' To that question the accused answers 'Yeah, yeah. Well, we, we've been renting houses together for the last n-, you know, eight or nine years before---'.
The accused states that the question is an inaccurate summary of the previous answers. I disagree. The previous questioning addressed the living arrangements of the accused. In part, the accused stated that he moved out of the family home but that an arrangement was made whereby he could live in the family home but not as a couple. The question by the officer was an appropriate inquiry to determine with greater clarity the living arrangements.
In any event, the accused answered the question with a positive answer. The objection is dismissed.
EROI Objection (f) - BP 272
The accused objects to three parts of the questions asked. The first part of the objection is to the question 'it just sort of sounds like it's been both or your houses up until you separated' to which the accused answered 'Mmm'. The accused was then asked 'And then it's been her house' to which the accused answered 'Yeah'.
The accused states that the questions asked are an inaccurate summary of the previous answers. I disagree. The previous questioning in the preceding paragraphs addressed the living arrangements of the accused. The question was properly asked. It is a proposition that summarises the living arrangements. That the proposition was, in fact, a correct summary of the living arrangements as described by the accused in the answers to the questions is shown by the accused's agreement with the question the subject of the objection. The objection is dismissed.
EROI Objection (g) - BP 272
The accused objects to the questions asked concerning whether he had stayed at the family home during 'this week'. In answer to the first question the accused states 'Ah, no, no. Cause I was, I was in, um Hakea [indistinct] I spent a few days in there payin' off fines.' The officer then confirms the days spent in Hakea Prison.
I agree that the entire objection to that part of the EROI at (g) BP 272 as proposed by the accused should be accepted. The EROI should, accordingly, be edited to delete the questions and answers.
EROI Objection (h) - BP 274
The accused objects to part of an answer given. The accused is asked about going around to his former partner's house. The accused gives a long answer but prefaces the answer by saying 'And I was like, you know, yeah, it does make me, like, look like a psycho in a way, you know what I mean?'. The words 'look like a psycho' is an unfortunate use of words by the accused. The accused stated before saying those words that his former partner was annoyed at him turning up and the accused was acknowledging to the officer that he understood her point of view. The word psycho is prejudicial. I consider that the line should be deleted from the EROI. I accept this objection.
EROI Objection (k) - BP 285
The accused is asked 'Alright. Um, have you seen that Stanley knife before?' to which the accused answered 'Yeah, yep, that's the one I used, ah, months ago to try and commit suicide'. The accused objects to that part of the answer that refers to his suicide attempt.
For the reasons that I outlined when considering Objections Three and Four, this answer is admissible.
EROI Objection (m) - BP 286
The accused objects to a series of questions and answers concerning the suicide attempt as follows:
CON HORLEY: Just, um, yeah. Just the part where you said that was the knife that you used last time when you tried to commit suicide.
CLARK: Mmhmm.
CON HORLEY: How did you try and commit suicide last time?
CLARK: I slit my wrist.
CON HORLEY: Yeah. Which wrist did you slit?
CLARK: This one here. I've got the scar –, the scars here. That's - -
CON HORLEY: Yep.
CLARK: That's currently why I'm off, um, been off work for the last month or so because I damaged, um, ah, tendons or something in it.
CON HORLEY: Yep.
CLARK: So - -
CON HORLEY: How, how many times did you cut it last time?
CLARK: Ah, there was just one big cut on there.
CON HORLEY: One cut. Okay. Yep. Cool. Um, that's all.
S/CON HEFFERNAN: Alright. Okay.
For the reasons that I outlined when considering Objections Three and Four I consider that this answer is admissible. The objection is dismissed.
EROI Objection (n) - BP 287
The objections as delineated by the accused concern a neighbour’s observations and whether the injuries are consistent with alleged blunt trauma. The objections are agreed by the State except the line 'I suppose we'll go onto the, the victim or the other bloke. He's been taken to Royal Perth Hospital'. I understand that the accused agreed with that proposed compromise. Therefore, the objections to the EROI at (n) PB 287 are otherwise accepted and the EROI should be edited.
EROI Objection (q) - BP 288
The accused objects to a serious of questions and answers concerning the suicide attempt as follows:
S/CON HEFFERNAN: Alright. I suppose I'm not gonna harp on it too much, Brad, but the thing that doesn't make sense is that he's got some very big cuts, numerous cuts, um, you've only got a few sort of [indistinct].
…
S/CON HEFFERNAN: Yeah. I've, I've seen, seen the pictures of the three cuts - -
CLARK: Mmhmm.
S/CON HEFFERNAN: That you've got. Okay. Um, but I'm saying his cuts are a lot worse. If you're saying that his c-, happened because you were rolling around on the ground, um, he's got very, very big cuts and you've got - -
CLARK: Yeah. But, um - -
S/CON HEFFERNAN: I - in comparison.
…
CLARK: Nah. I would-, I would- , the first time that I ever did cut myself, I was drunk. I had drunken, like, twelve beers and shit like that, you know? And that was just, yeah, like, I don't know why I done it that morning when I did cut myself. But, you know, like, at the moment, I, all, all I'm waiting for is to go back to work ‘cause I'm , you know, just, just sittin' at, at home doin' nothin' and havin' no money and that, it's just pissin' me off so much, you know? And I've got [indistinct] ah, ended, ah, 26th of January is when I can go back to work so I w-, I wouldn't try and hurt myself or damage myself more to have more time of or anything like that so - -
For the reasons that I outlined when considering Objections Three and Four, this line of questioning is admissible. The objection is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
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Associate to the Honourable Justice McGrath2 OCTOBER 2019
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