The State of Western Australia v Evans
[2016] WASC 368
•1 NOVEMBER 2016
THE STATE OF WESTERN AUSTRALIA -v- EVANS [2016] WASC 368
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 368 | |
| Case No: | INS:231/2016 | 1 NOVEMBER 2016 | |
| Coram: | HALL J | 1/11/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Evidence ruled inadmissible | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ERIC CHARLES EVANS |
Catchwords: | Criminal law Evidence Objection to evidence of conduct by accused the day before alleged offence Whether evidence relevant to state of mind of the accused |
Legislation: | Nil |
Case References: | Adam v The Queen [1999] NSWCCA 189; (1999) 106 A Crim R 510 Goldsmith v Sandilands (2002) ALR 370 Harriman v The Queen (1989) 167 CLR 590 Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 O'Leary v The King (1946) 73 CLR 566 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
ERIC CHARLES EVANS
Accused
Catchwords:
Criminal law - Evidence - Objection to evidence of conduct by accused the day before alleged offence - Whether evidence relevant to state of mind of the accused
Legislation:
Nil
Result:
Evidence ruled inadmissible
Category: B
Representation:
Counsel:
Prosecution : Mr B E F Tooker
Accused : Mr R F Owen
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Aboriginal Legal Service (WA)
Case(s) referred to in judgment(s):
Adam v The Queen [1999] NSWCCA 189; (1999) 106 A Crim R 510
Goldsmith v Sandilands (2002) ALR 370
Harriman v The Queen (1989) 167 CLR 590
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
O'Leary v The King (1946) 73 CLR 566
1 HALL J: The accused is charged with the murder of his sister, Helema Rose Evans, on 20 January 2016 at Billygoat Community. He has pleaded not guilty to that charge and the matter is listed for a trial commencing on 14 November 2016 in Kununurra.
2 One of the witnesses at trial will be the brother of the accused and the deceased, Mr Dunstan Evans. In his witness statement Mr Dunstan Evans refers to an incident that occurred the evening before the alleged murder, that is on the evening of Tuesday 19 January 2016. The defence objects to this evidence on the basis that it is not relevant. In the alternative, it is submitted that any marginal probative value the evidence has is outweighed by its prejudicial quality. A directions hearing to determine the admissibility of the evidence was held on 1 November 2016. At the conclusion of that hearing I ruled that the evidence was inadmissible and said that I would publish written reasons for my decision in due course. These reasons will be suppressed until the conclusion of the trial.
Prosecution case
3 The prosecution case is that in January 2016 the accused and the deceased were both residing at the Billygoat Community on Glenhill Road, Warmun in the Kimberley region. On the morning of Wednesday 20 January 2016 between 8.30 am and 9.30 am, the deceased and Dunstan Evans started to argue about cleaning up the kitchen of the house where they were living. Dunstan Evans was seated outside and the deceased was in the kitchen. They were arguing through the kitchen window and this continued for about 10 minutes.
4 The accused walked up to Dunstan Evans and said 'you want to fight? I'll belt you'. He then told Dunstan Evans to stop arguing with their sister. The accused is said to have been very drunk at this time. Dunstan Evans sat down on the verandah and continued to argue with the deceased through the kitchen window. At some point they stopped arguing and the accused said 'I don't like this now'. The accused then walked through the front door into the kitchen.
5 At this time the deceased was in the kitchen mopping the floor. The prosecution allege that the accused walked to a kitchen drawer and removed a knife. He then approached the deceased and stabbed her to the left side of her back. The deceased then walked from the house and told family members that she had been stabbed. She then collapsed.
6 The accused came outside holding the knife and placed it onto a table. He then picked up a metal bar and chased Dunstan Evans whilst wielding it. He is alleged to have said that he would kill Dunstan Evans. After a short time, he threw away the metal bar and ran away.
7 Three other members of the family placed the deceased into a vehicle and drove her to the Argyle Diamond mine site. This drive takes approximately 30 minutes. At the mine site a nurse determined that the deceased had died.
8 Police were called and later that afternoon the accused was arrested and taken to the Kununurra police station. He was interviewed on 21 January 2016 and made admissions to stabbing the deceased.
The objection
9 The accused objects to the evidence of Dunstan Evans at par 23 - 27 of his statement. In those paragraphs, Dunstan Evans states that on the previous evening he, the accused and the deceased arrived back at the Billygoat community at about 10.00 pm. They were all drinking alcohol. Somewhere around midnight the accused and Dunstan Evans started arguing. Dunstan Evans states that he cannot remember what the argument was about because he was very drunk. The accused picked up a metal bar and raised it to hit Dunstan Evans. Dunstan rushed towards the accused and tackled him to the ground. Dunstan put a hand on the throat of the accused and told him to stop what he was doing. Another man then ran over and pulled them apart.
10 The State submits that this evidence is relevant because it shows that there were tensions between the siblings and that the accused was prepared to use violence to resolve conflict. It is the State's case that the following morning the accused stabbed his sister with a knife in order to deal with similar conflict, that is, an argument between his brother and sister. It is submitted that his behaviour the previous night is relevant to his state of mind and intention the following morning because it shows his intent to use violence to inflict a bodily injury on a sibling at a time relatively proximate to the killing. It is also submitted that it is relevant that the accused attempted to hit Dunstan Evans with the iron bar both before and after he stabbed his sister with a knife. This is said to demonstrate that he was selective in the way he chose his weapons.
11 The defence submits that the evidence is not relevant because there is nothing to show that what occurred on the evening of 19 January 2016 was related to the argument the next morning that preceded the fatal stabbing. There is nothing to suggest that the deceased was a party to the earlier argument. The fact that the earlier argument occurred at least eight hours before the stabbing, involved different parties and that it was unknown what the content of the earlier argument was means that it is not possible to suggest that these two incidents were meaningfully linked. Insofar as any reliance might be placed upon the concept of transaction evidence, as discussed in O'Leary v The King (1946) 73 CLR 566, the defence submits that the facts of that case were materially different. In any event, it is submitted that the events are not part of the same transaction such that the events of the night before could support any inference as to the accused's state of mind at the time of the stabbing.
12 The accused intends to admit that he unlawfully killed the deceased at the commencement of the trial pursuant to s 32 of the Evidence Act 1906. The only live issue will be whether he intended to kill or intended to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the deceased. The defence submit that evidence that the accused attacked his brother with a metal pole the night before cannot assist in determining whether the accused stabbed his sister the next day with intent to kill her or to do her a life endangering injury. It should be noted that there is no suggestion by the prosecution that the evidence is admissible as propensity evidence under s 31A of the Evidence Act.
Relevant law
13 In O'Leary the appellant was convicted of murder. Both the appellant and the victim were employees at a timber camp. There had been a drunken orgy at the camp and on the following morning the victim had been found in his cubicle suffering injuries consistent with him being struck to the head with a bottle and then being burnt with kerosene. At the trial, evidence was admitted that the appellant had at various times the previous day violently assaulted other employees. Some of these assaults were unprovoked and all had consisted of brutal blows to the head. The evidence of the assaults was found to be admissible, not on the basis of any similarity with the alleged offence, but because the evidence disclosed the state of mind of the appellant at the relevant time. The fact that the appellant had attacked other employees without cause was said to affect the probability that he would attack another fellow employee (being the victim). It was also said that:
such evidence puts the acts of attacking (the victim) in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night. It is evidence of facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued [575] Latham CJ.
14 Similar comments were made by Rich J (572), Dixon J (577) and Williams J (582). See also Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375 Dixon J. These principles were applied in Adam v The Queen [1999] NSWCCA 189; (1999) 106 A Crim R 510. Evidence admitted on this basis is admissible because the conduct forms part of the res gestae (see Cross On Evidence, J D Heydon, 10th ed, [21050]). Such evidence may be admissible for a number of purposes, one being to show the state of mind of the accused.
15 In Adam the NSW Court of Criminal Appeal (Spigelman CJ, James and Bell JJ) said that:
evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person 'in the past' or evidence tending to show that he has a particular 'disposition' or 'propensity' or 'inclination' and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required) [30].
16 The ambit of transaction evidence as stated in O'Leary has been suggested as now being limited and that the admissibility of such evidence should be determined on the basis of whether it is relevant circumstantial evidence: Harriman v The Queen (1989) 167 CLR 590; McHugh J [633].
17 Evidence is relevant to a fact in issue if it makes that fact more or less likely to have occurred: Digest of the Law of Evidence, Stephen, 12th ed, adopted in Goldsmith v Sandilands (2002) ALR 370. The relevant issue in this case is whether the accused had the specific intent for murder. The question therefore is does the fact that the accused attacked his brother with a pole the night before make it more likely that when he stabbed his sister the next day he had an intent to kill her or to do her a life endangering injury?
Determination of the objection
18 In order for the accused's conduct on the previous evening to be relevant in determining his state of mind at the time of the alleged offence, that conduct must be sufficiently proximate. The fact that at a later time the accused behaved in an aggressive manner towards a different person could not assist in determining his state of mind at the relevant time unless, in all of the circumstances, it could be inferred that his state of mind was a continuing one. That inference may not be open if there has been a lapse of time and if the circumstances are different.
19 In the present case, at least eight hours elapsed between the accused's conduct on the evening of 19 January 2016 and the time of the stabbing. All of the relevant parties appear to have gone to sleep in that period. The reasons for the earlier argument and its content are unknown. The earlier argument did not involve the deceased. Different weapons were used in respect of Dunstan Evans and the deceased. All of these factors, when combined, mean that it is not reasonably open to use the events of the previous evening to infer that the accused had a specific intent when he stabbed his sister.
20 In my view, in the circumstances of this case, the accused's aggressive conduct the previous evening could not be said to form part of the same transaction as the attack on the deceased for the purpose of determining his intent. Given the lapse of time, lack of proven continuity of behaviour, different circumstances and the availability of a different reason for the anger, the evidence could not be used to infer the state of mind of the accused at the time of the alleged offence. Furthermore, unlike in O'Leary, the identity of the alleged perpetrator is not in issue. In this case, the accused admits stabbing the deceased and unlawfully causing her death. The only issue is whether he had a specific intent at the time. In these circumstances, I concluded that the evidence was irrelevant and inadmissible.
21 In any event, the evidence has limited, if any, probative value. On the other hand it would be likely to cause significant prejudice. If led at trial the risk is that, although this evidence could not assist in determining the state of mind of the accused at the relevant time, the jury may improperly use it to conclude that the accused is a violent man who should be found guilty of murder irrespective of his state of mind. Thus, even if the evidence had some marginal relevance I would exclude it in any event.
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