The State of Western Australia v Hinchliffe
[2013] WASC 25
THE STATE OF WESTERN AUSTRALIA -v- HINCHLIFFE [2013] WASC 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 25 | |
| Case No: | INS:83/2012 | 21 JANUARY 2013 | |
| Coram: | HALL J | 25/01/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Rulings made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MARK RAYMOND HINCHLIFFE |
Catchwords: | Criminal law Evidence of conduct before and after alleged offence Whether capable of showing accused's state of mind at relevant time Whether part of series of connected events |
Legislation: | Nil |
Case References: | Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
MARK RAYMOND HINCHLIFFE
Accused
Catchwords:
Criminal law - Evidence of conduct before and after alleged offence - Whether capable of showing accused's state of mind at relevant time - Whether part of series of connected events
Legislation:
Nil
Result:
Rulings made
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Category: B
Representation:
Counsel:
Prosecution : Ms L E Christian
Accused : Mr L M Levy SC
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Brennan & Co
Case(s) referred to in judgment(s):
Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566
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1 HALL J: By application dated 14 January 2013 the accused seeks orders that certain evidence contained in the prosecution brief be held to be inadmissible. The application includes an annexure in the form of a table identifying the relevant parts of the prosecution witness statements to which objection is taken.
2 At the hearing of the application on 21 January 2013 an amended table was provided. Some items referred to in the table were conceded by the prosecution and will not be led either at all or on the assumption that the defence case does not put certain matters in issue. Those concessions are recorded in the transcript and there is no need to refer to them further. This judgment will be limited to the determination of those items that remained in dispute and were the subject of argument.
3 The accused is charged with the attempted murder of Scott Paul Williams. The prosecution case is that on the evening of 7 May 2011 the accused and Mr Williams were at the home of the accused in North Yunderup. It is alleged that the accused assaulted Mr Williams by punching him to the head and then hitting him with a bottle. Mr Williams incurred injuries which caused him to bleed. He was then directed by the accused to clean up the blood. As he was doing so it is alleged that the accused fired a gun at Mr Williams, the bullet from which grazed the top of his head. It is alleged that the accused then grabbed a knife from the kitchen and slashed Mr Williams across the throat. Mr Williams then fled the scene and went to the house of a neighbour. The neighbour called an ambulance at approximately 11.20 pm.
4 Sometime shortly after midnight police officers from the Mandurah Police Station attended at the accused's home. The accused was seen at the premises and kept under observation for a short time before being arrested. The accused was directed to kneel on the ground with his arms outstretched. He complied, was placed in a secured police vehicle and conveyed to the Mandurah Police Station. He was placed in a holding cell at the police station at about 1.00 am on 8 May 2011. Whilst in the cell it is alleged that he behaved in an angry and erratic manner. Close circuit television footage and audio has been provided for a period of about one hour, sometime between 1.00 am and 3.00 am. The exact start and finish times are not clear.
Conduct in the holding cell
5 The accused objects to the admissibility of the holding cell footage and to parts of the evidence of a number of police witnesses that refer to
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- the accused's conduct in the holding cell. In particular, objection is taken to the following:
• Statement of Mark Leslie McMillan - pars 28 to 44 (pages 77 to 79 of the prosecution brief).
• Statement of Operator 2 - pars 15 to 20 (page 97 of the prosecution brief).
• Statement of Operator 11 - pars 15 to 20 (pages 100 to 102 of the prosecution brief).
• Statement of Tactical Operator 43 - pars 16 to 21 (pages 104 to 105 of the prosecution brief).
• Statement of David Sumner - pars 19 to 30 (pages 122 to 123 of the prosecution brief).
• Statement of Ian Matthew Todd - pars 6 to 7 (page 138 of the prosecution brief).
6 The table of objections refers to pars 14 to 21 of the statement of Tactical Operator 43. This appears to be an error as pars 14 and 15 are unobjectionable and merely refer to the fact that the officer concerned was requested to conduct a forensic procedure on the accused whilst he was being held in the lockup. I have taken the objection to be confined in regard to this witness to pars 16 to 21.
7 The evidence objected to can be summarised as follows. After being transported to the Mandurah Police Station the accused was placed into a glass walled holding cell. He initially appears to have been compliant with the directions of the police officers. Sometime later, and it is difficult to determine exactly when, the accused began to loudly and aggressively demand that he be given a cigarette. It would appear from what he says that he was aggrieved because one of the police officers had promised to obtain a cigarette for him. He became extremely abusive to the police officers in attendance. He then proceeded to urinate and defecate in the cell. He picked up some of his faeces and smeared it on the glass walls of the cell. Sometime later (according to the statement of Senior Constable McMillan this was at 3.45 am) the accused was requested to undergo a forensic procedure. He refused and again urinated in the cell. An order was obtained from a senior officer at 4.10 am to undertake the forensic procedure by force. This subsequently occurred.
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8 The accused objects to this evidence on the basis that it is irrelevant. It is also submitted that even if relevant, any probative value that it has is outweighed by its prejudicial effect. It is submitted that a jury would be likely to be appalled by the conduct and to therefore take a disfavourable view of the accused because of it. It is said that the aggressive behaviour in the cell could not be used to infer the accused's state of mind at the time of the alleged offence for three reasons:
(1) because there was a lapse of time of approximately two hours;
(2) because the accused was not behaving in an aggressive manner immediately upon his arrival in the cell; and
(3) the ostensible reason for his behaviour was a grievance with his perceived treatment by the police.
9 Counsel for the prosecution conceded that the accused's behaviour in urinating and defecating in the cell is of doubtful relevance and its prejudicial nature outweighs any probative value. However, it was submitted that the accused's aggressive and abusive behaviour to the police officers was relevant because it could be used to infer that he had been in an aggressive state of mind at the time of the alleged offence. This was said to be particularly significant in circumstances in which it was likely that the defence would be self-defence. It was submitted that the merely prejudicial aspects of the evidence could be dealt with by not playing the CCTV footage and by adducing a description of the accused's behaviour in general terms from the police officers. That is, that the police officers could be asked to confirm that the accused behaved in an abusive and aggressive way in the holding cell without referring to the precise words or to the fact that the accused urinated and defecated in the cell.
10 The prosecution relied in support of its submissions on O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566. In that case 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 cubical 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
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- 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 show the probability that he would attack another fellow employee (being the victim). It was also said that 'such evidence puts the act 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). See also Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375 (Dixon J). Similar comments were made by Rich J (572), Dixon J (577) and Williams J (582). These principles were applied in Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510.
11 In order for the accused's conduct in the holding cell 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 some later time the accused behaved in an aggressive manner 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 there is some other credible explanation for the accused's aggressive behaviour at the later time.
12 In the present case, at least two hours appear to have elapsed between the time of the alleged incident and the accused's conduct in the holding cell. Whilst there is reference to the accused yelling when in the police van when first arrested, there is no other evidence to suggest that he behaved in an aggressive manner in the intervening period. On first arrival at the Mandurah Police Station he appears to have been calm and compliant. The apparent reason for the accused's anger in the holding cell was his perception of ill-treatment by the police. The degree and duration of his behaviour may be indicative of a man with a volatile and aggressive temperament, but the prosecution foreswore any reliance on admissibility of this evidence on a propensity basis.
13 In my view, in the circumstances of this case, the accused's aggressive conduct in the holding cell could not be said to form part of the same transaction as the alleged attack on Mr Williams. Given the lapse of time, lack of proven continuity of behaviour, different location, different circumstances and the availability of a different reason for 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 conduct
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- in the cell was not physical violence of a type similar to that alleged to have been inflicted on Mr Williams. Rather, it was aggressive behaviour in general. For those reasons the evidence of the accused's aggressive conduct in the holding cell is inadmissible. This ruling does not relate to the evidence of the accused yelling in the police van when arrested at the scene (par 19 of the statement of Senior Constable Sumner).
Implied admissions
14 During the period that the accused was in the holding cell and whilst he was abusing the police officers he made statements on three occasions which the prosecution submits are implied admissions. The statements in question are identified in the transcript of the hearing of this application. The nature of the statements is that 'the guy' would not be making a complaint, or pressing charges. There are words used which indicate Mr Williams is being referred to, in particular references to their employer. The prosecution submits that it can be inferred from the words used by the accused that he was responsible for inflicting the injuries on Mr Williams but that he did not expect Mr Williams to proceed with any complaint against him.
15 Defence counsel submitted that the defence case would primarily be one of self-defence and that it would not be argued that any other person than the accused had inflicted the wounds. In particular, it would not be suggested that any other person had inflicted the knife wound which is specifically relied upon by the prosecution as the act constituting the attempt to murder. The prosecution response was that in the absence of an admission that the accused inflicted the relevant wound it would be obliged to conduct its case on the basis that it would have to prove that element of the offence. It was accepted, however, that if an admission was made it would be unnecessary to lead any evidence regarding those admissions.
16 I accept that, absent an admission by the accused, the three statements in question are relevant and admissible. To minimise any prejudice to the accused that would flow from playing the CCTV footage of those statements, the appropriate way in which this evidence should be led, if necessary, would be for a police officer to relate the words used by the accused.
Conduct preceding the alleged attack
17 In Mr Williams' statement he refers to the fact that he and the accused worked together. On the day in question they worked until about
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- 1.15 pm to 1.30 pm. Thereafter they were in each other's company until the commission of the alleged offence. Mr Williams describes a number of incidents that occurred over the course of the afternoon and evening. The prosecution case is that these incidents are relevant because they reveal a change in the demeanour of the accused, that he became increasingly angry and aggressive and that that aggression later shifted to Mr Williams. The prosecution relies upon O'Leary's case on the basis that the preceding incidents form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued by the accused and that led to the alleged attack.
18 The accused objects to the evidence of the incidents on the basis that they are unconnected to the alleged offence and are irrelevant. Alternatively, it is submitted that if relevant, the probative value of this evidence is outweighed by its merely prejudicial effect and that it should be excluded for that reason.
19 The first part of the evidence objected to is at pars 45 to 47 of the statement of Mr Williams (page 149 of the prosecution brief). This relates to an incident that occurred at the house of a friend sometime after 3.00 pm. Mr Williams says that he, the accused and the friend were laughing, drinking beer and having a good time at the front of the house. After about an hour another young man came to the house and shook the accused's hand. Following this the accused starting talking about handshakes and how the manner in which a handshake occurred could indicate whether or not the person was aggressive. The accused is alleged to have said that if the young man who had come to the house had shaken his hand in a way that he considered to be threatening he 'would have bashed him'. The accused then invited Mr Williams and the friend to shake hands to see how they did it.
20 There is no suggestion in Mr Williams' statement that at the time this conversation occurred the accused was behaving in an aggressive or intimidating manner. The young man about whom the statement regarding a handshake was made is not identified and has no relevance to the subsequent events. For these reasons this evidence is irrelevant and must not be led.
21 The next evidence objected to relates to an incident that occurred shortly after the one just referred to. It appears in pars 48 to 50 of Mr Williams' statement (page 149 of the prosecution brief). Mr Williams states that the conversation at the friend's house 'turned to the Outlaw Motor Cycle Club'. He states that the accused decided to call the
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- president of 'the Club' and that the accused got 'pissed off' when he was on the phone. He said that the accused later told him that this was because the president of the Club had called him 'a piece of shit'. This is a precursor to further passages to which objection is taken (pars 51 to 60, page 150 of the prosecution brief). Mr Williams says that following the telephone call the accused wanted to go looking for guys from the Outlaw Motor Cycle Club. He says that they drove around Mandurah for this purpose and went to about four or five pubs or wine bars. He says that the accused told him that he wanted to find members of the Club so that he could give one a flogging.
22 The objection to this evidence is that references to the Outlaw Motor Cycle Club imply a background of previous animosity. It is suggested that if references to the Club were included it would be necessary for the accused to call evidence as to that background. It is also submitted that references to the Club are in themselves prejudicial and that it is only necessary for the prosecution to lead evidence that the accused appeared to be in an angry mood, that he was looking for somebody and that he gave directions to Mr Williams. The implication is that the jury might infer that the accused had some previous association with the Outlaw Motor Cycle Club and would be unfairly prejudiced against him for that reason.
23 The prosecution submits that this evidence is relevant because it shows that the accused was behaving in an angry and aggressive manner prior to the alleged offence. It is also relevant because it places into context the later attack upon Mr Williams. According to Mr Williams during the time that he and the accused were driving in Mandurah the accused directed him to stay in the car and avoid being seen. Mr Williams states that the accused 'got pissed off at me' because he was not complying. These events occurred at about 8.30 pm to 9.00 pm. Shortly after this they returned to the accused home. According to Mr Williams after arriving the accused told him to stand up and be the man he should be. He also asked Mr Williams why he did not follow his directions in Mandurah, 'like staying in the truck'. It was immediately following this that the accused is alleged to have punched Mr Williams in the face.
24 It is apparent that the alleged attack forms part of a continuing series of events which commenced earlier that afternoon with the telephone call by the accused to the president of the Outlaw Motor Cycle Club. On the basis of the evidence of Mr Williams, it can be inferred that the attack upon him was motivated, at least in part, by the accused's anger at the failure of Mr Williams to follow his directions. It can also be inferred that
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- the accused's anger and desire to perpetrate violence had not abated but rather had been piqued by the failure to find members of the Club. Whilst it would appear that the anger was initially directed at members of the Club it is open to infer that the anger was redirected at Mr Williams.
25 Prosecution counsel submitted that if the objection was simply to the mention of the Outlaw Motor Cycle Club the evidence could be led in a way that could leave out reference to that organisation. That would minimise the prejudice that the accused's refers to and obviate the need for him to explain the background of his relationship with the Club in question.
26 In my view, the evidence is relevant and admissible. It provides necessary context for understanding what is alleged to have occurred later in the evening. I also accept that the evidence is part of a series of connected events as described in O'Leary. Since the prosecution has not sought to argue that it is necessary to its case to refer specifically to the Outlaw Motor Cycle Club the evidence should be led without making reference to that organisation.
Previous incident between the accused and Mr Williams
27 Objection is taken to pars 121 to 159 of Mr Williams' statement (page 156 to 159 of the prosecution brief). These paragraphs relate to an incident between Mr Williams and the accused that is alleged to have taken place two weeks prior to the alleged offence. In particular at par 148 and following Mr Williams refers to an altercation in which the accused became angry and took 'a couple of swings' at him. He then refers to the accused directing him to get a sword off the wall and to hit him (that is the accused) with the sword.
28 The accused submits that this evidence is irrelevant. It is said that it cannot relate to the accused's state of mind at the relevant time as it occurred two weeks earlier. The argument does not relate to the same issues that arose on the day of the alleged offence. There is no obvious connection between the two incidents.
29 The prosecution submits that this evidence may be relevant to the issue of self-defence. It was submitted that prior incidents of violence between the parties could be relevant to any belief that the accused may claim to have had at the time of the alleged offence. The implication is that if the accused claims that he was acting in self-defence and that Mr Williams was the aggressor, it may be relevant that on a prior occasion the accused had been the aggressor. Prosecuting counsel accepted,
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- however, that the question of the admissibility of this evidence may well depend upon how the defence case is conducted and in particular, how Mr Williams is cross-examined. In these circumstances it was suggested that this may well be an issue that needed to be left to the trial judge. I agree and I make no ruling in respect of that evidence.
The conversation with Concetta
30 The accused objects to evidence regarding a conversation between Mr Williams and a former girlfriend of the accused that is referred to at pars 10 to 25 of the second statement of Mr Williams (at pages 192 to 194 of the prosecution brief). This relates to an incident said to have occurred two weeks prior to the alleged offence in which an former girlfriend of the accused, referred to as Concetta, rang Mr Williams and asked him not to tell the accused that she had done so. Despite that request Mr Williams told the accused. He says that the accused accepted it and said, 'Well done'. At pars 20 to 24 Mr Williams then refers to the accused wanting to 'play fight'. Mr Williams said he did not see any point in doing so and that there was no animosity or malice between them.
31 It is unclear from the statement whether the request to play fight occurred on the day of the discussion regarding the telephone call with Concetta or the day of the alleged offence. The prosecution has subsequently confirmed that it was the former.
32 The prosecution submitted that the only potential relevance of this evidence was that it might show some motive on the part of the accused. This was expressed as being that the accused may have some reason to have 'concerns about what may be going on with Mr Williams and Concetta'. This appears to be speculative and is not supported by Mr Williams' account of the accused's response when told of the telephone call.
33 It is not apparent that this evidence could be used to draw any inference as to a motive to attack Mr Williams. The incident is, as I have noted, some two weeks before the alleged offence. In the intervening period it would appear that relations between Mr Williams and the accused were amicable. The evidence is not relevant and should not be led.
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