The State of Western Australia v Penny
[2017] WASC 159
•9 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PENNY [2017] WASC 159
CORAM: PRITCHARD J
HEARD: 19 MAY 2017
DELIVERED : 9 JUNE 2017
FILE NO/S: INS 305 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
RICKIE LEE PENNY
Defence
Catchwords:
Evidence - Application that certain evidence be excluded - Racist remarks about deceased and others - Unfairly prejudicial effect - Where remarks have significant probative value
Legislation:
Criminal Procedure Act 2004 (WA), s 98(2)
Result:
Application granted in part
Category: B
Representation:
Counsel:
Prosecution : Mr D Jubb
Defence: Mr R Richter
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Robertson Hayles Lawyers
Cases referred to in judgment:
Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
Leaman v The Queen (1987) 28 A Crim R 104
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
PRITCHARD J: Mr Penny is charged with the murder of Daniel Ernest Edwards on 4 April 2016. He has pleaded not guilty to the charge in the indictment and is due to face trial later this year.
The State says that Mr Penny stabbed Mr Edwards following an altercation between them on 4 April 2016. The altercation occurred following an incident earlier the same day in which Mr Penny accused Mr Edwards' nephew (who Mr Penny apparently believed was Mr Edwards' son), and his nephew's friends, of stealing a bicycle belonging to Mr Penny. During that incident, Mr Penny allegedly assaulted Mr Edwards' nephew. The State says that after that incident, Mr Edwards and his nephew went to Mr Penny's home and confronted him about the incident. There was then a verbal and physical altercation between Mr Penny and Mr Edwards, which the State says culminated in Mr Penny stabbing Mr Edwards several times. Mr Edwards died from his injuries.
Counsel for Mr Penny indicated that the defences likely to be raised at Mr Penny's trial are that he was acting in self-defence, or in the defence of his home, or of his partner (who was home at the time).
When police were called to the scene, they video recorded their discussions with Mr Penny (the crime scene video). Mr Penny subsequently participated in video recorded interviews with police (the VROIs).
Mr Penny has made an application pursuant to s 98(2) of the Criminal Procedure Act 2004 (WA) for an order that certain evidence be excluded from the crime scene video, and from two of the VROIs on the basis that its prejudicial effect outweighs its probative value (the Application). For the reasons set out below, the Application will be granted in part only.
The evidence in dispute on the Application
As initially framed, the Application sought to exclude a large volume of evidence from the crime scene video and the VROIs, including evidence said to be irrelevant. Objections on the grounds of relevance had largely been resolved by consent between the parties prior to the hearing, or were apparently resolved by concessions made by counsel for the State after the hearing. I have therefore proceeded on the assumption that all objections to evidence in the crime scene video and the VROIs on the grounds of relevance have been resolved by agreement between the parties.
By the time of the hearing, it became apparent that the dispute was in fact confined to the inclusion in the crime scene video, and in two of the VROIs, of remarks by Mr Penny of a racist nature, and in which he describes Mr Edwards, Mr Edwards' nephew, other persons, and even himself, in a racist fashion (the Remarks). Most of the Remarks to which objection is made concern Mr Penny's use of terms such as 'black cunt', 'black dog', 'Aboriginal cunt' or similar expressions. (Mr Penny, Mr Edwards and the other persons concerned are aboriginal people.) However, in addition, there is one part of the VROIs where Mr Penny engages in a prolonged outburst of a racist nature (the Offensive Statement).[1] I note that no objection was taken by counsel for Mr Penny to the presence of the word 'cunt' throughout the crime scene video and VROIs. That was on the basis that it was said to be commonplace for juries to hear evidence which includes that term, so that it no longer has such a shocking and offensive impact as to give rise to potential prejudice to an accused. However, it was submitted that the use of the term 'black' in conjunction with that term and offensive terms did have such a potential impact.
[1] The Offensive Statement appears on page 24 of the VROI dated 4 April 2016 at 2.00 pm, and is the passage comprising 14 lines commencing and ending with 'Captain Cook … was a Penny.'.
Following the hearing, counsel for the State confirmed that the State did not seek to rely on the Offensive Statement. In addition, counsel for the State confirmed that, other than where they appeared in specified instances, the State did not seek to adduce evidence of the Remarks (in so far as Mr Penny used terms such as 'cunt', 'black cunt', or similar) and that these could be edited from the crime scene video, and the VROIs. However, the State's position was that in certain specified instances, the Remarks should not be edited from the crime scene video or from the VROIs. That position was adopted for one of three reasons: the Remarks in question were said on the first occasion where Mr Penny referred to Mr Edwards, or to his nephew and the other boys he thought had stolen his bicycle, or were instances where Mr Penny was recounting, apparently verbatim, his thought processes or words he actually said at the time of the alleged offence, or finally, constituted evidence of Mr Penny's attitude to Mr Edwards, which was relevant to the defences he intended to raise.
After the hearing, counsel for Mr Penny confirmed that the Application was now that all references to the word 'black' should be edited from the crime scene video and the VROIs.
The area of dispute between the parties, therefore, concerns whether the word 'black', where it appears in the phrase 'black cunts' (or similar) in the passages set out in the table below, should be edited from the crime scene video and the VROIs (page references are to the transcript of each video recording). For convenience, I will refer to these references as the Disputed Remarks. I have noted, in summary, the submission of the State as to why each of the Disputed Remarks should not be edited from the crime scene video or the VROIs.
| Reference | Disputed Remark | Summary of the State's submission |
| Crime scene video | ||
| Page 3 | 'Where that black cunt hit me.' | First time the words are used in relation to the deceased |
| Page 7 | 'So when I heard them saying that's the house there, well, you know where I live, you've. You've come to my house quite a few times, you little fucking black cunts.' | First time the words are used in relation to the deceased's nephew and other boys |
| VROI 4/4/16 2pm | ||
| Page 8 | 'Are we waiting on that black cunt there to die or something?' | Goes to defences raised |
| Page 9 | 'Sorry? Are we waiting on the, um, outcome of the black cunt to die?' | Goes to defences raised |
| Page 11 | 'I'm hitting you with this blade now black cunt. See how you go. [indistinct.] The boss got his blood off him anyways. Fucking black dog, he had no right come to my house for his kids stealing my bikes. Seriously. Fuck off. Get fucked and fuck off. If I'm getting charged over some black cunt coming to my house, threatening me over his kids stealing my bikes, oh, fuck off you black cunts. I'll kill all you dogs. Captain Cook should have shot all you cunts anyways, you fucking black dogs. Happy Australia Day. How is it happy? There's still black cunts around. … Shoot all them cunts.' | Words spoken at time |
| Page 12 | 'I told him you keep stealing my bi-, bring your dad back you little, black cunt.' | Words spoken at time |
| Page 13 | 'I hope the black cunt dies.' | Goes to defences raised |
| Page 24 | 'Now, I'm thinking I should go back onto, onto the people who brung that man to my house. You brung that man to my house for trouble over you stealing my, my bikes you cunts, you black dogs. You black fucks. Captain Cook should have raped your mother and shot your kids and booted the heads off all of you cunts. Black dogs. That's all you good for being raped and shot and killed you black cunts.' | Goes to animus and defences raised |
| VROI 5/4/16 | ||
| Page 41 | 'You black cunt, look at you now, look at you now, coming to my house, smashing my house.' | Words spoken at time |
| Page 57 | '…see, look what I've done, look, look what happened, look what I've done to you now you dumb black cunt' | Words spoken at time |
The basis for the Application
The basis for the Application is that any probative value in the Disputed Remarks would be outweighed by the prejudice their inclusion would cause to Mr Penny, in that the Disputed Remarks are offensive in the extreme, and would be likely to shock and prejudice jurors to such an extent that no jury direction could reasonably be expected to ameliorate that prejudice.
Counsel for Mr Penny submitted that 'the language is of such a nature that its frequent and repetitive use by the accused, in context, is inherently confronting, distracting and shocking to a normal person of ordinary sensibility'.[2] He also submitted that 'directly, or by implication, the repetitive and frequent use by the accused of [the Remarks] with respect to the deceased may of itself fairly be regarded as evidence of bad character on the part of the accused'[3] in that he 'is a person of such bad character as to think nothing of using abusive and racist language'.[4] He also submitted that there was a real likelihood of the misuse of the Remarks as evidence that Mr Penny has a propensity or tendency to behave in a certain way or be violent to persons of aboriginal descent.[5] He submitted that the jury might reason that by virtue of their conclusion that Mr Penny was a person of bad character, or had a propensity to behave in that way, it was more likely that Mr Penny would be the type of person who would kill or seriously injure Mr Edwards, and 'less likely to be the sort of person who acted only in self-defence or in defence of his home'.[6] He submitted that no direction capable of being given by the trial judge could ameliorate the unfair prejudice the Remarks would engender.[7]
[2] Applicant's submissions [15].
[3] Applicant's submissions [16].
[4] Applicant's submissions [17].
[5] Applicant's submissions [18].
[6] Applicant's submissions [19].
[7] Applicant's submissions [34].
The State accepted that the Remarks, in so far as they were racist in nature, were offensive and likely to shock the jury, and that they may initially give rise to an element of prejudice against Mr Penny.[8] The State's position, however, was that the Disputed Remarks are of significant probative value within the contexts specified because they provide an indication of Mr Penny's state of mind at the time of Mr Edwards' death, and provide an explanation for Mr Penny's actions which is at odds with the defences upon which he is likely to rely.[9] In particular, counsel for the State submitted that the Disputed Remarks 'are a reliable indicator of [Mr Penny's] state of mind at the time of the alleged offence and in the immediate period thereafter'.[10] He submitted that for that reason the probative value of the Disputed Remarks outweighed any perceived risk of prejudice to Mr Penny. He submitted that any risk of prejudice could be averted by specific directions to the jury in relation to the Disputed Remarks.
Principles applicable to the exercise of discretion to exclude evidence
[8] State's submissions [34].
[9] State's submissions [33].
[10] State's submissions [42].
The Disputed Remarks were made in the context of admissions made by Mr Penny out of court. It has not been suggested that the admissions made by Mr Penny in the crime scene video or in the VROIs were obtained improperly, or that they were not made voluntarily, so as to render them inadmissible.
The question which then arises is whether the Disputed Remarks should be excluded in the exercise of the Court's discretion to exclude statements made by an accused person. One of the recognised bases for the exercise of a Court's discretion to exclude voluntarily obtained admissions by an accused person is where the prejudicial effect of the statement made by the accused outweighs its probative value.[11] The underlying rationale for the discretion is the need to ensure the fairness of the accused's trial, in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice.[12]
[11] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50], [52] (Toohey, Gaudron & Gummow JJ).
[12] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [52], [64] (Toohey, Gaudron & Gummow JJ).
The Application relies on this basis for the discretion to exclude the Disputed Remarks. The onus is on Mr Penny to establish on the balance of probabilities that the Disputed Remarks should be excluded in the exercise of the Court's discretion.[13]
[13] Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [44] (McLure P, Buss JA agreeing).
In considering the exercise of the discretion it is necessary to bear in mind that directions can, and are, given by trial judges every day to assist juries to understand the proper use which may be made of the evidence adduced at a trial and to guard against the improper use of such evidence by the jury. While it is ordinarily assumed that jurors will be true to the oath they take and will apply the directions given by the trial judge,[14] nonetheless it has been recognised that in some cases the prejudice likely to arise from the admission of certain evidence is so significant that doubt would remain that the members of a jury would be capable of performing the task given them, by following the directions of a trial judge.[15]
[14] Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22 (Barwick CJ); Leaman v The Queen (1987) 28 A Crim R 104, 108 (Neasey J, dissenting, not on the point of principle, but on the result of its application); Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [72] ‑ [73] (Steytler P, Wheeler & Pullin JJA agreeing).
[15] See, for example, Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 31 ‑ 32 (Gibbs J, Aickin J agreeing at 39), 34 (Stephen J), 37 (Murphy J), cf at 24 (Barwick CJ); Leaman v The Queen (1987) 28 A Crim R 104, 114 ‑ 115 (Cox J), 119 ‑ 120 (Underwood J).
Determination
It is appropriate to commence by making some observations about the potential prejudice which would arise from the presence of the Remarks as a whole in the crime scene video and the VROIs, before turning to assess the potential prejudice arising from the Disputed Remarks in particular.
The potential prejudice which would arise from the presence of the Remarks throughout the crime scene video and the VROIs
I accept that if there were no redactions from the crime scene video or the VROIs at all, the presence of the Remarks would have the potential to be prejudicial to Mr Penny, in that they would jeopardise whether Mr Penny could receive a fair trial. That potential prejudice would arise as a result of the quality, and the quantity, of the Remarks.
The Remarks are liable to be understood as having a racially offensive quality. I accept that that is so, even though Mr Penny himself is of aboriginal descent, and notwithstanding that he not only uses terms such as 'black cunt' (and similar terms) to refer to Mr Edwards and his nephew, but he also refers to himself as an 'Aboriginal cunt'.[16] It is apparent that the manner and context in which the word 'black' is uttered in the Remarks gives them a tone which is demeaning and derogatory.
[16] See VROI dated 5 April 2016, 59.
The quantity of the Remarks is also significant in terms of the prejudice which may arise from their presence in the crime scene video and the VROIs. I accept that the Remarks are so frequently used throughout the crime scene video and the VROIs that their racially offensive content may distract the jury from their task of properly assessing the evidence as a whole, and may give rise to the risk that the jury would, even with an emphatic and repeated direction from the trial judge, improperly rely on those Remarks as indicative of bad character on Mr Penny's part, or as evidence of his propensity to engage in violence towards aboriginal people.
The Remarks were made by Mr Penny on many occasions in the course of the crime scene video and the VROIs where it is difficult to see any real probative value in the inclusion of the Remarks as part of the evidence. Consequently, in my view, the concession by the State that the word 'black' should be deleted from the Remarks, save for when it is used in the Disputed Remarks, was properly made.
Whether the word 'black' ‑ where it is used in the Disputed Remarks ‑ should be excluded in the exercise of the Court's discretion
As I have noted, the concession by the State has the result that other than in the Disputed Remarks, the State does not seek to adduce evidence of Mr Penny's use of the word 'black' in the context of the Remarks. That word will be edited out of the crime scene video and the VROIs by the State, and so will not be heard by the jury. (I note that the State has also offered to edit out the use of the word 'cunt', although as I have mentioned already, the use of that word was not the subject of the Application, and counsel for Mr Penny did not submit that the presence of that word in the evidence would necessarily give rise to any prejudice which could not be ameliorated by a direction by the trial judge.)
In view of the concession made by the State, I need confine my attention only to the Disputed Remarks (as set out in the table above). The question for determination is whether the State should be permitted to adduce evidence of the word 'black' where it appears in the Disputed Remarks.
In my view, save in two respects, the State should be permitted to adduce evidence of the Disputed Remarks in full, as noted in the table above. That conclusion follows because I am not satisfied that any prejudice which may be caused by the admission of the Disputed Remarks into evidence will outweigh the probative value of that evidence. I have come to that conclusion for the reasons set out below.
First, the Disputed Remarks have a very strong probative value in relation to the jury's assessment of what was going through Mr Penny's mind, and consequently the question of Mr Penny's intention, at the time he stabbed Mr Edwards. The best evidence of that intention, and what will be of primary significance in the jury's assessment of Mr Penny's intention, is Mr Penny's recounting ‑ verbatim ‑ of what was going through his mind at the time, or of what he actually said to Mr Edwards. Those passages, in particular, appear on page 11 of the VROI dated 4 April 2016, and pages 41 and 57 of the VROI dated 5 April 2016 (noted above). Counsel for Mr Penny submitted that when Mr Penny said these words, he was not recounting, verbatim, what he was actually thinking, or what he actually said, at the time he stabbed Mr Edwards. I am unable to agree. The language used by Mr Penny suggests that that was exactly what he was doing.
In addition, Mr Penny's references to Mr Edwards, and to Mr Edwards' nephew, at pages 3 and 7 of the crime scene video, and pages 8, 9, 12, 13 and 24 of the VROI dated 4 April 2016 (noted above) disclose the strength of the animosity felt by Mr Penny. Mr Penny's expression, in his own words, of that feeling of animosity will also be a significant matter for the jury in assessing Mr Penny's intention at the time he stabbed Mr Edwards.
Counsel for Mr Penny submitted that the animosity felt by Mr Penny towards Mr Edwards and his nephew would be adequately conveyed, but without the prejudicial racial reference, if the word 'black' is deleted from the Disputed Remarks.[17] That submission initially held some attraction, but having given it careful consideration, I am unable to accept it. In my view, it is appropriate that the jury sees the totality of the way that Mr Penny recounts what his thoughts or words were at the time of the altercation with Mr Edwards, in order that the jury may properly assess his intention at the time. Similarly, it is important that the jury sees the totality of the way that Mr Penny expresses his feelings about Mr Edwards and his nephew, in order to properly assess his attitude to Mr Edwards and his nephew, and to assess the extent to which that contributed to his conduct.
[17] ts 60.
Secondly, I am not satisfied that the possible prejudice to the fair trial of Mr Penny, if the Disputed Remarks are admitted would outweigh the probative value of the Disputed Remarks. The reason for that conclusion is that by virtue of the fact that the State has conceded it will edit the word 'black' from the Remarks, other than in the Disputed Remarks, the prejudice from the inclusion of the Disputed Remarks will be very considerably diminished. I accept that there remains a risk of some prejudice by virtue of the use of the word 'black' in the Disputed Remarks, namely the risk that the jury would impermissibly rely on the Disputed Remarks, either as evidence of bad character on Mr Penny's part, or as indicative of a propensity on Mr Penny's part to engage in violence against aboriginal people. However, in my view, having regard to the limited number of the Disputed Remarks, the force of the racially offensive tenor of those Remarks will be considerably lessened. My assessment is that as a result, the risk of any such prejudice would not outweigh the probative value of the Disputed Remarks.
Furthermore, in those circumstances, I am satisfied that a clear direction from the trial judge that the presence of those words must not be used as evidence of bad character, or of any propensity on Mr Penny's part, will be capable of ameliorating the risk that the jury would rely on the Disputed Remarks for an impermissible purpose.
That conclusion applies to all of the Disputed Remarks, save for two passages, to which I now turn.
Those parts of the Disputed Remarks which are not admissible
Two passages in the Disputed Remarks are not admissible, because any probative value (if any) which they may have is outweighed by the likely prejudicial effect of the admission of those passages of evidence.
The first is that part of the Disputed Remarks which appears on page 11 of the VROI dated 4 April 2016, in the passage which reads: 'Captain Cook should have shot all you cunts … shoot all them cunts'. The State's submission was that this passage reflects the words said by Mr Penny or which were in Mr Penny's mind at the time of the altercation with Mr Edwards, and which he was recounting, verbatim, to the police officers in that VROI. I do not accept that submission. The earlier part of the Disputed Remarks on page 11 ('I'm hitting you ... see how you go') certainly does appear to be a verbatim recounting of what Mr Penny said or what was in Mr Penny's mind at the time, and for that reason has a significant probative value. And the next words ('The boss ... all you dogs') disclose Mr Penny's attitude and feelings towards Mr Edwards and have significant probative value for that reason. But the remainder of that passage, commencing with the words 'Captain Cook ….' appears to be of a markedly different nature. Those words clearly do not refer to Mr Edwards, but refer to all aboriginal people, and disclose nothing about Mr Penny's feelings towards Mr Edwards in particular.
The second part of the Disputed Remarks which is not admissible is that part of the Disputed Remarks which appears on page 24 of the VROI dated 4 April 2016 in the passage which reads 'Captain Cook should have raped your mother … you black cunts.' The State's submission was that this demonstrated the animosity Mr Penny felt towards Mr Edwards and his nephew, and was of probative value in relation to the defences raised. I do not accept that submission. The earlier part of the Disputed Remarks on page 24 has probative value for that reason. But the words starting with 'Captain Cook …' clearly have nothing to do with Mr Edwards or his nephew in particular, and refer to aboriginal people generally.
I am unable to see how the Disputed Remarks on pages 11 and 24 are materially different in nature from the Offensive Statement (which appears elsewhere on page 24 of the VROI dated 4 April 2016) and which the State has conceded should be edited from the VROIs.
In the case of each of these two passages in the Disputed Remarks, the racially offensive nature of the Remarks is so pronounced as to give rise to the risk that inclusion of those Remarks would prejudice a fair trial for Mr Penny. That risk outweighs any probative value in those parts of the Disputed Remarks.
Conclusion
The following passages in the VROIs are not admissible, on the basis that the likely prejudicial impact of their inclusion in the evidence at trial outweighs any probative value they have:
•Page 11, VROI dated 4 April 2016: 'Captain Cook should have shot all you cunts anyways, you fucking black dogs. Happy Australia Day. How is it happy? There's still black cunts around. … Shoot all them cunts.'
•Page 24, VROI dated 4 April 2016: 'Captain Cook should have raped your mother and shot your kids and booted the heads off all of you cunts. Black dogs. That's all you good for being raped and shot and killed you black cunts.'
These passages should be edited from the VROIs (in addition to the editing of the word 'black' from the other Remarks throughout the crime scene video and the VROIs, as agreed by the State).
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