Director of Public Prosecutions v Devey

3 The plea hearing has been split. On 3 December 2020, evidence was heard in relation to a dispute of fact. The remainder of the plea will be heard in early 2021.[1]

4 The factual issue in dispute is whether Devey armed himself with the knife with which he stabbed Blachford before the altercation that ended in the stabbing. Devey accepts all other facts and circumstances outlined by the prosecution.

B. Circumstances giving rise to the factual dispute

5 The facts leading to the offence will be described in greater detail in the sentence. For the purposes of this ruling it is sufficient to state that during the day of 7 December 2018 Devey spoke to Paul O'Gorman ("O'Gorman") numerous times about a debt of $150. The money was owed by Devey to Marie Tangimetua ("Tangimetua"), who was in a relationship with Blachford. Devey went to O'Gorman's unit, at 2/7 Cramer St Warrnambool ("the Unit"), and began drinking with O'Gorman and Blachford (who had stayed at the Unit the night before with Tangimetua). Tangimetua was asleep in a bedroom. Devey gave $100 to O'Gorman in part payment of his debt to Tangimetua and later gave a further $50 to Blachford to settle the debt. A friend of Blachford's, Joshua Mullen ("Mullen"), also arrived at the Unit during the course of the day.[2]

6 Everyone at the Unit was drinking heavily, the mood became hostile and Blachford became frustrated and angry with Devey. Devey had told the others present he had once slept with a 15 year old girl. Blachford said to Mullen, "He's a paedophile". When Mullen asked who, Blachford responded, "This cunt drinking port". Devey was drinking port. Blachford repeatedly told Devey he could not have any more alcohol and demanded that he leave.

7 At this point,[3] Devey said he was leaving and put his bicycle helmet on his head. Blachford became angry with Devey, now in relation to money he believed was still owed to Tangimetua. Blachford demanded a further $100 for Tangimetua and said to Devey, "You have to pay it now". While Devey was seated, and wearing his bike helmet, Blachford punched Devey on top of his helmet. What occurred in the minutes that followed was contested.

8 The prosecution submitted that the evidence demonstrated that Devey then walked into the kitchen, entering through 1 door and exiting through a different door into the hallway, and armed himself with a "HM" brand knife, which he concealed with a green bag he was holding. The prosecution submitted it was established that, as Devey went to leave, Blachford grabbed at Devey's bag and Devey then used the concealed knife to stab Blachford. This was put on the basis that there was no evidence of scuffles between Devey and Blachford. Further, it was submitted the evidence showed there was a lack of opportunity for Devey to obtain the knife from Blachford, but the opportunity existed when Devey was in the kitchen.

9 Counsel for Devey submitted that events occurred as follows. After Blachford punched Devey on the top of his helmet Devey got up from the table and as he was standing Blachford grabbed at Devey's bag. Devey then went through the kitchen to the back door in an attempt to leave the Unit. Upon finding the back door locked, he moved towards the front door where he was confronted by Blachford. Blachford had with him the "HM" brand knife and lunged at Devey. There was a physical struggle in which Devey was able to disarm Blachford and then Devey stabbed Blachford.

10 The facts in relation to the events which followed were agreed. Devey stabbed Blachford once. Blachford was observed walking backwards while holding his stomach and said, "I've been stabbed" before collapsing. This occurred between 3 and 10 minutes after Blachford hit Devey on the helmet.[4]

12 Counsel for Devey submitted that, in accordance with R v Storey,[5] the prosecution must establish any matter adverse to Devey beyond reasonable doubt, and the allegation that he first armed himself with the "HM" brand knife is such a matter. The prosecution accepted this principle and its applicability to the factual dispute.

13 It was held in R v Storey that a sentencing judge must not take facts into account in a way that is adverse to the interests of an offender unless those facts are proved beyond reasonable doubt.[6] The allegation that Devey armed himself with the knife prior to the confrontation would be adverse to Devey if proved. As a result, the allegation must be established beyond reasonable doubt in order to be taken into account for the purposes of sentencing.

14 The alternative hypothesis, that Blachford had the knife at the beginning of the altercation before Devey took possession from him, would not be adverse to Devey. A finding to this effect should be made if this were established on the balance of probabilities.[7]

15 The layout of the Unit and the location of events is important. The kitchen of the Unit had 2 doors, 1 into the lounge room and 1 that could be used to enter the hallway. The people drinking at the Unit before the incident, including Devey and Blachford, were sitting in the lounge room. After Blachford punched Devey on the helmet, Devey entered the kitchen from the lounge room and exited through the other door into the hallway. He met Blachford inside the front door where the altercation occurred.

16 Mullen gave evidence that after Devey was punched in the helmet twice, everyone got louder. Mullen stood up to close the front door because of the noise that was coming from the Unit, and as he turned around he saw Devey walking into the kitchen. Mullen crossed the lounge room and followed Devey into the kitchen, but when Mullen entered Devey had already left the kitchen via the other door. Mullen had taken 2 steps into the kitchen when he heard, "I've been stabbed". Mullen did not think Devey had anything with him when he entered the kitchen.

17 O'Gorman gave evidence that he did not know whether Devey went to the back door.[8] O'Gorman saw Blachford lunge at Devey before the stabbing and attempt to take the bag from him, however he could not see whether or not Blachford or Devey had anything in their hands at that moment.

18 In short, there was no evidence of any witness that anyone saw Devey with the knife before the stabbing.

19 Devey was interviewed by the police on the morning of 8 December 2018. During that interview, Devey told the police that Blachford came at him with a knife as he was trying to leave the Unit and that he had to defend himself. As Devey did not give evidence, there was no opportunity to test this account of what occurred.

20 The DNA evidence was neutral on this issue.[9] A sample of blood near the tip of the blade matched Blachford. A sample of an unknown biological source taken from the handle of the knife showed 2 contributors. The major contributor, who contributed the majority of the DNA, matched Devey. For the minor contributor, only a partial sample was obtained and was a likely match to Blachford.[10] The DNA evidence did not indicate how long the contributors held the knife or when they held or touched the knife.

21 For the reasons that follow, I am not satisfied beyond reasonable doubt that Devey armed himself with the knife prior to the altercation that resulted in the stabbing.

22 First, there was no witness who saw Devey with the knife prior to the stabbing.

23 Secondly, Devey's opportunity to pick up the knife was in the kitchen. However, he was only in the kitchen for a very short amount of time, being the time it took Mullen to cross the lounge room and enter the kitchen. While it is possible Devey may have grabbed a knife in the time available, his passage through the kitchen is also consistent with Devey taking the course he did in an attempt to leave the Unit.

24 Thirdly, Devey was not aggressive towards Blachford before the ultimate altercation and it was agreed that Devey was trying to leave the Unit at the time of the altercation.

25 Fourthly, O'Gorman's statement, made soon after the events in the early hours of 8 December 2018, referred to Blachford having lunged at Devey in an attempt to grab the bag from Devey. There was no evidence as to how long this attempt to grab the bag took. Such a circumstance runs counter to the prosecution's submission that there was a lack of opportunity for Devey to grab the knife from Blachford.

26 Together, these factors leave a reasonable doubt as to whether Devey armed himself with the knife prior to the altercation.

27 However, I also cannot be satisfied on the balance of probabilities that Blachford was initially in possession of the knife shortly before he was stabbed with it.

28 There is no probative evidence to support this proposition. None of those present at the Unit saw whether or not Blachford had anything in his hands prior to the altercation. Unlike Devey, Blachford did not pass through the kitchen to make his way to the front door, thus he had no opportunity to pick up the knife in the kitchen in the minutes leading up to the altercation. Although it is possible that Blachford had the knife on his person, or hidden about him in the lounge room, there is simply no evidence to suggest this. Further, the fact that Blachford's DNA was also on the handle does not take the matter any further, as Blachford had stayed at the Unit and could have handled the knife well before the altercation.

29 Finally, O'Gorman saw the altercation, including seeing Blachford lunge at Devey before the stabbing, but did not give evidence that he saw the knife in Blachford's hands or Devey wrest the knife from Blachford.

30 As a result, I am not satisfied on balance of probabilities that Blachford had the knife immediately prior to the altercation.

31 In essence, all facts in the prosecution opening were agreed to except for the following 2 sentences:

(1) Devey armed himself with a "HM" brand knife which he concealed with a green bag he was holding.

(2) Devey then used the concealed knife to stab Blachford in the abdomen.

32 As neither the prosecution's nor Devey's version in relation to the disputed facts has been established to the requisite standard, the plea will proceed on the basis of the agreed facts, being the entire prosecution opening apart from the above 2 sentences. In relation to the issues raised by these 2 sentences, it has not been established either way as to who had the knife shortly before the fatal stabbing of Blachford.

[1] Further evidence, to be led in relation to matters relevant to sentencing, is not available yet.

[2] Mullen left the Unit with O'Gorman at 1 stage to get more alcohol and when they returned it was evening.

[3] Although not part of the agreed facts, Mullen's evidence was that Devey left momentarily and then came back to get his wine.

[4] Noting for completeness that Mullen gave evidence that this period "seemed not even minutes".

[5] [1998] 1 VR 359.

[6] Ibid, 371.1 (Winneke P, Brooking and Hayne JJA and Southwell AJA). For a recent application of this principle, see Brooks v The Queen [2020] VSCA 93, [31], [45] (Tate, McLeish and Hargrave JJA).

[8] O'Gorman gave evidence at the committal and was cross-examined at that time. He passed away before this matter came on for hearing. Accordingly, the evidence O'Gorman gave at the committal was put before this court.

[9] DNA stands for deoxyribonucleic acid.

[10] The probability with respect to the minor sample was far less probable than the major sample, but it was still 57 times more probable to be Blachford than not.