DPP v Campbell & Ors

2 Counsel acting for Barnett has indicated that his client intends to rely on a defence of duress. In particular, it will be put, on behalf of Barnett, that he was subjected to threats and intimidation by one or both of his co-accused, which induced him to participate in the disposal of Adam Williams's body after he was killed. In support of that defence, it is proposed that evidence be called on behalf of Barnett as to the circumstances of a number of prior convictions of the two co-accused, Campbell and Rosendale, as evidence of a tendency by each of them to act in an intimidatory, violent or threatening manner. For that purpose, notices have been served on behalf of Barnett as to the evidence proposed to be called on his behalf pursuant to ss 97(1) and 99 of the Evidence Act 2008.

3 An issue has arisen as to whether that evidence is admissible. It is common ground that, if the evidence is admissible, I should direct that the trial of Campbell and Rosendale be heard separately to the trial of Barnett.

4 In addition, notices have been served, on behalf of Campbell and Rosendale, on the prosecution, giving notice, pursuant to s 97 of the Evidence Act, that they each intend to adduce evidence to the effect that Williams had a tendency to act in threatening and violent behaviour, and to assault others with armed with weapons, and especially knives. The prosecution has objected to the admissibility of that evidence. It is common ground that it is premature, at this point, to determine the admissibility of that evidence.

5 For the purposes of determining the admissibility of the tendency evidence, it is only necessary to refer, briefly, to the nature of the case which the prosecution seeks to make against the three accuseds.

6 At the time of his death, Adam Williams was residing in Camberwell, but he frequented the St Kilda area. At that time, Dobrovitch was living with Roslyn Rennie in an apartment of a boarding house named Jessica House, situated at Mary Street, St Kilda. Another person, John Hornjak, was also residing with Dobrovitch and Rennie at that time.

7 During the days immediately before his death, Williams had been acting in an unusual and erratic manner. Late on 30 December 2011, he visited Jessica House. He was armed with a serrated edge knife. As he approached the house, he noticed another resident of St Kilda, Sarah Shaddick. Shaddick immediately ran away from Williams, and he pursued her. In doing so, he poured lighter fluid onto her head and shoulders, and tried to set her hair alight. Shaddick ran into the premises and rinsed the lighter fluid from her hair under a shower.

8 In the meantime, Campbell and Rosendale had attended at the apartment occupied by Dobrovitch and Rennie in order to purchase drugs from them. While they were there, Williams entered the apartment. He confronted Campbell and Rosendale with the knife. The prosecution will allege that Campbell and Rosendale then assaulted Williams, causing him to fall to the ground. When Williams was on the ground, Campbell and Rosendale repeatedly stomped on his head, rendering him unconscious. Dobrovitch then stabbed him twice in the abdomen.

9 Campbell and Rosendale then issued directions as to what to do with the deceased. His body was cleaned, tied, wrapped in a tarpaulin, and placed in a wheelie bin which was left outside the Jessica House residence for several days awaiting collection by the local council.

10 In the meantime, discussions took place, between those who were involved in the death of Adam Williams, as to how to dispose of his body. On about 2 January, Rennie recruited the accused Barnett to assist with the removal of the body. The prosecution will allege that Barnett attended at the Jessica House premises in his vehicle. There, Barnett, Dobrovitch and Hornjak loaded the wheelie bin containing the deceased's body into the back of Barnett's utility and drove it to Mordialloc Creek. An attempt was made to submerge the wheelie bin in the creek, but it was not successful. Dobrovitch, Hornjak and Barnett then dragged the bin into some bushes nearby and left it there.

11 Subsequently, on 4 March 2012, the wheelie bin was discovered during the annual "Clean Up Australia" campaign, and it was taken to landfill. Ultimately, it has not been possible to find, or recover, the bin containing the remains of Adam Williams, which, apparently, has been subsequently covered by large piles of rubbish at the landfill.

12 The prosecution, and each of Campbell and Rosendale, object to the admissibility of the tendency evidence, sought to be adduced by Barnett, on three bases. First, it is submitted that there is no evidence upon which a defence of duress might be raised by Barnett on the trial. Secondly, it is submitted that the evidence is not admissible as tendency evidence under s 97 of the Evidence Act.

13 It is convenient, first, to deal with the question of the adequacy of the evidence upon which the defence of duress might be raised by Barnett at the trial.

14 On behalf of Barnett it is submitted that the defence of duress is sufficiently raised by the following evidence.

15 Barnett participated in two substantive police interviews. In his first interview (on 30 August 2012) he denied any connection with the circumstances surrounding the killing of Williams, or the disposal of his body. In his second interview, on 3 September, he made admissions as to assisting with the removal of Williams's body. In that interview, he stated that he attended at Jessica House in response to a request by Rennie that he assist her move out of the premises because Dobrovitch was being violent towards her. He said that when he arrived at the premises, he was informed as to the circumstances in which William was killed. He was also told that his body had been placed in a wheelie bin which was downstairs. Barnett stated to the police:

"I turned up there to help this girl move. And was confronted with a group of people who, basically, said what I was really there for - and that anyone was free to leave, but they'll be shot all the way out the door. And I - I just - yeah, I went - self-preservation, I didn't want to die there, that's for sure. And - yeah, I believe that they - they were true in what they were saying. ... And I was told to, to take Mitch (Dobrovitch) and get rid of it (the body)." (Question 19).

16 Two questions later, Barnett stated that the bin was put in the back of the vehicle. He said:

"I was just - like did not want to know about it, I was just keeping - keeping myself safe. And they also had my phones, and they - yeah they were hinting that if I -you know, if I didn't help them that - there was my kids as well." (Question 21).

17 When asked by the police who the other people were, Barnett said that he did not know. He knew that the first names of some of the participants were Mitch, Ros, Sarah, and John. He then said (Question 38) "... there was a couple of other guys - I didn't know who they were, but they were pretty heavy, sort of, dudes". In answer to a later question he described them as "just pretty solid, big". At question 92, he was asked by the police to identify the person who threatened him when he got to the Mary Street address. In response he stated:

"I'm not sure, I think - there was about three - three of them that threatened me. And Mitch and one of the other guys had - had definitely threatened me. And ... Mitch was in a pretty agitated state at that time. ... It was ... two definitely, maybe three, had - had threatened me with that."

18 At question 136 and following, he said that Mitch and John were present when the bin was put in the vehicle. He said that the "other guys" were "just keeping a watch from up top, I think. ... I didn't see them .... downstairs at all". At question 153 and following, he was shown a series of photographs, to identify who was present at Jessica House. He identified Dobrovitch, Rennie and Hornjak. He was also able to identify one of the other two persons whose names he did not know.

19 Finally, when asked at the conclusion of the interview whether there was anything else he wished to say, Barnett stated (question 189):

"... I just want youse to know that I did this purely out of fear. I was sucked ... into it and ... I was that shit scared I just didn't know what to do".

20 In addition to the evidence which I have just referred, counsel for Barnett also relied on evidence of Rennie and Hornjak in cross-examination at the committal proceeding.

21 In cross-examination, Rennie agreed that when Barnett arrived at the premises in his utility, he had not then been told that there was a dead body in the bin. She also agreed that she had told Rosendale that Barnett did not know why he was there. She said that if any threat was made to Barnett by Rosendale, then she was not present in the room at that time.

22 In cross-examination, Hornjak agreed that he knew that Sarah Shaddick had stolen Barnett's telephones shortly before this incident. He confirmed that, after the events involving the death of Williams and the disposal of his body, Hornjak returned the SIM card to him. He agreed that the SIM card had been in the possession of either Rosendale or Campbell. He said that the SIM card was returned to Barnett well after the disposal of Williams's body, and that Barnett had been extremely anxious about having his telephones returned to him. Hornjak also denied that he was present for any conversation, at which Campbell and Rosendale were present, and which concerned Barnett participating in the disposal of Williams's body.

23 In addition to that evidence, Mr Kelly, who appears for Barnett, has foreshadowed that it will be asserted at the trial that Barnett was threatened by Rosendale with being shot if he did not assist in the disposal of Williams's body. It will also be asserted that mobile telephones, stolen from Barnett by Shaddick, were supplied to either Campbell or Rosendale, and that further threats were made by the co-accused to Barnett to track his family, or to implicate him falsely in the killing of Williams. It will be asserted on behalf of Barnett that those threats induced his cooperation in the disposal of Williams's body.

24 In response, it was pointed out on behalf of the prosecution, and on behalf of both co-accused, that the evidence of Rennie and Hornjak, at the committal proceeding, contradicts the assertions made by Barnett, in his interview, that either of the co-accused were involved, either in persuading Barnett to assist in the removal of the body, or in the removal of the body itself.

25 In particular, in cross-examination, Rennie stated that when Barnett arrived at the premises in the morning, Hornjak and Dobrovitch were present, but that the other two men were not. Rennie also denied that she was present at any time that any threat might have been made to Barnett. She confirmed that neither Rosendale nor Campbell were present when discussions took place concerning the disposal of Williams's body.

26 In cross-examination at the committal proceeding, Hornjak agreed that he and Rennie had moved the wheelie bin, containing Williams's body, from the room in which Williams was killed, and that they put it downstairs. He agreed that the other two men (that is, Campbell and Rosendale) were not present when that was done.

27 Hornjak stated that, on the day Barnett that attended the premises, he arrived in the early hours of the morning. He said that Dobrovitch, Rennie and Shaddick were there, but that Campbell and Rosendale were not present at that time. He said that they had not been at the Jessica House premises for the few days preceding Barnett's attendance there.

28 In addition to that evidence, it is submitted on behalf of the prosecution and Campbell that, in his interview, Barnett did not identify, or implicate, Campbell as one of the persons who made the alleged threats to him, which he claimed induced him to assist to dispose of Williams's body.

29 It is clear, from the evidence contained in the depositions, there are a number of difficulties which might confront the defence of duress sought to be relied on by Barnett. However, it must be borne in mind that the question, which I am to determine at this stage, is not whether there is evidence which is sufficient for the defence of duress to be put to the jury. It is premature to form any view as to that matter. In the dynamic circumstances of a criminal trial, the state of the evidence, at the end of the case, may well be substantially different to that which is contained in the depositions.

30 The question which I need to determine is whether the tendency evidence, sought to be adduced on behalf of Barnett, is admissible, if the issue of duress is properly raised at trial. In a sense, the question, thus formulated, is, at this stage, entirely hypothetical. Strictly speaking, I should wait until the issue of duress is sufficiently raised during the course of evidence at the trial. However, obviously, such a course would be impractical. It may well involve an undue delay during the case while I heard argument on the issue, and then made a ruling on it. More importantly, if I were to determine the issue in favour of the admissibility of the evidence, it is common ground that that would have the result of requiring that the trials of Rosendale and Campbell be heard separately to the trial of Barnett. It would be most unfortunate, and inconvenient, not to make such a determination at that stage, if the matter can be resolved now.

31 Notwithstanding the difficulties with the defence of duress, which have been pointed out by both the prosecution and by counsel for Campbell and Rosendale, it has been foreshadowed by Mr Kelly that Barnett will contend to raise a defence of duress during the case. Despite those difficulties confronting that defence, there is sufficient material in the depositions to indicate that it is not entirely fanciful. The defence was adverted to, albeit in most general terms, by Barnett in his record of interview, in the passages to which I have already referred. Mr Kelly has indicated that it will be asserted that Barnett was threatened by either Campbell or Rosendale with being shot if he did not assist in the disposal of the deceased's body, and that it would also be asserted that mobile telephones, stolen from Barnett by Shaddick, were supplied to either Campbell or Rosendale, and that "further threats to track his family or implicate him falsely in the killing of the accused were made by his co-accused".

32 In view of the state of the evidence, on the issue of duress, at this stage, any ruling that I make as to the admissibility of the tendency evidence, sought to be relied on by Barnett, must, of necessity, be subject to the issue of duress being sufficiently raised at trial in respect of each particular co-accused. Nevertheless, I consider that it is appropriate to rule on the admissibility of the evidence, subject to the issue of duress being sufficiently raised in the course of the trial. Thus, at this stage, I shall rule on the admissibility of that evidence conditionally, on the assumption that, in the course of the trial, the issue of duress will be sufficiently raised to make the evidence, as to tendency, relevant to that issue.

33 Before considering the tendency evidence sought to be adduced by Barnett, it is useful, first, to set out the principles which apply to the admissibility of evidence of that type.

34 Section 97(1) of the Evidence Act 2008 provides:

"Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -

(a) ...

and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value."

35 Proof of a tendency to act in the particular way is, in effect, a species of circumstantial evidence. Unlike "coincidence" evidence which is admissible under s 98, tendency evidence, alone, does not prove any particular fact in issue. Rather, it is a foundation for an inference that a particular person either had a particular state of mind, or acted in a particular way, in respect of the circumstances which are under consideration in the particular case.[1]

36 Further, unlike s 98, in order to prove the relevant tendency, it is not necessary that there be a striking similarity between the offence which was alleged to have been committed, and the previous conduct which is to be adduced to establish the relevant tendency.[2] On the other hand, it is necessary that there be relevant similarities, or common features, between the previous conduct and the conduct which is charged in respect of the offence.[3] Ordinarily, the greater the generality with which a tendency is stated, the less likely that evidence of the tendency has significant probative value in relation to the particular fact in issue in the case.[4]

37 The factors, which may be relevant to a determination whether the evidence in question has significant probative value to establish an alleged tendency, must, of necessity, depend on the individual facts of the particular case. In R v Semaan,[5] Priest JA stated:

"In my view, a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency might include the number of occasions that the conduct displaying the alleged tendency have occurred; the temporal (and, perhaps, geographical) connection of such conduct with the charged conduct; the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi); and whether the circumstances of occurrence of the conduct and charged conduct are similar."

38 Section 97(1)(b) requires that the tendency evidence must have "significant probative value". Section 55(1) of the Act provides that evidence is relevant in a proceeding if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The dictionary to the Act defines "probative value" to mean:

"the extent to which the evidence could rationally affect the assessment of a probability of the existence of a fact in issue."

39 The phrase "significant probative value" is not defined in the Act. In R v Lockyer,[6] Hunt J stated:

"In its context as I have outlined it, however, 'significant' probative value must mean something more than mere relevance that something less than a 'substantial' degree of relevance. ... One of the primary meanings of the adjective 'significant' is 'important' or 'of consequence'. In my opinion, that is the sense in which it is used in s 97."[7]

40 That dictum has been adopted and applied in a number of subsequent cases.[8] On the other hand, in the recent decision in R v Semaan[9] Priest JA (with whom Buchanan and Ashley JJA agreed) eschewed attempts to reformulate the statutory language. His Honour expressed the view that in context the adjective "significant" must bear a meaning "... closer to 'substantial' than to 'important' or ' of consequence' ... ".

41 The approach to the question of admissibility of tendency evidence, sought to be adduced on behalf of the accused, must, of necessity, be different to the approach taken by the court to tendency evidence which is sought to be adduced on behalf of the prosecution. In a criminal trial, the accused does not bear any legal onus of proof. Rather, on particular issues, the accused may bear an evidentiary onus of adducing evidence, from which an inference arises that a reasonable possibility, consistent with innocence, exists. Thus, in determining whether tendency evidence, sought to be adduced by an accused, is admissible under s 97(1), it must be borne in mind that that evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.

42 The first statement of that principle was in the judgment of Hunt CJ in R v Lockyer.[10] In that case, the accused was charged with murdering his child. The defence case was that there was a reasonable possibility that the child had been murdered by his mother. The accused sought to adduce evidence of previous incidents of injury to the mother's children, in circumstances in which there was a reasonable possibility that the mother had been responsible for those injuries. Hunt CJ held that that evidence was admissible. In doing so, his Honour stated:

"The accused bears no legal onus of proof, but he does bear an evidentiary onus of pointing to or producing evidence from which the inference arises that such a reasonable possibility exists. Where such an inference does arise from that evidence, the Crown bears the legal onus to eliminate that reasonable possibility, as part of its obligation to prove that it was beyond reasonable doubt it was the accused who killed the child.

The Crown's objection to the evidence, was twofold. It is said, first, that the proposed evidence would give rise to no more than speculation that Ms Dolan was responsible for inflicting the injuries; and, secondly, that the evidence should be excluded in the exercise of my discretion because its probative value is substantially outweighed by the danger that it will be unfairly prejudicial to the Crown.

Although the circumstances in which these injuries are alleged to have occurred were not spelt out for me in any great detail, enough was demonstrated by the accused to persuade me that the reasonable possibility that Ms Dolan was responsible for inflicting them could be inferred without the need for speculation. If the issue had been whether she had inflicted them, of course, the position would not have been the same. The difference between establishing that something was the fact and establishing that there is a reasonable possibility that it was the fact is an extensive one."[11]

43 The principle, so stated by Hunt CJ in Lockyer, has been referred to and applied in subsequent decisions. In R v Cakovski,[12] the accused was charged with murder. The cause of death was the combined effect of four stab wounds to the chest of the victim. The principal issue at the trial was whether the accused had acted in self-defence in inflicting those wounds. The trial judge had rejected evidence, sought to be adduced on behalf of the accused, first, that twenty three years previously, the victim had killed three people, and, secondly, that a few hours before his death, the victim had threatened to kill another person "like I killed the other three people".

44 The Court of Appeal unanimously held that the evidence ought to have been admitted. Hodgson JA and Hume JA both considered that the evidence, sought to be adduced by the accused, was not tendency evidence, but, rather, was evidence which made it less improbable that the victim would have made the relevant threats alleged on behalf of the accused.[13] On the other hand, Hidden JA considered the evidence was tendency evidence.

45 Notwithstanding the differences in the characterisation of the evidence, Hodgson JA (who delivered the leading judgment of the court) adopted the same approach as that specified by Hunt CJ in R v Lockyer, namely, by determining whether the evidence in question was relevant to whether there was a reasonable possibility that the deceased had acted in the manner alleged by the accused.

46 In R v White,[14] the principal accused was charged with murder. The two co-accused were charged with being accessory after the fact of the murder. One of the co-accused claimed that he had been acting under duress, consisting of threats by the principal accused, in participating in the disposal of the deceased man's body. On the facts of the particular case in question, Hulme J ruled that the particular tendency evidence, sought to be adduced in relation to the principal offender, was inadmissible. However, in doing so his Honour stated:

"It must be borne in mind that because it is an accused who wishes to adduce the evidence, the fact in issue in respect of which the evidence must have significant probative value is one for which he only has an evidentiary onus. In other words, it is for the accused Serone to show that there is a reasonable possibility that his actions were committed under duress. It then becomes a matter for the Crown to eliminate that issue beyond reasonable doubt."[15]

47 The evidence, which is proposed to be called on behalf of Barnett, is contained in the two notices of tendency evidence. In particular, it has been proposed to call the following evidence in relation to the accused Rosendale:

(a) On 21 December 2001 Rosendale, in company with two others, boarded a train at Ringwood, and they held knives to a passenger, insisting that he give them his bag. One knife was held to the victim's throat and the other to his stomach. The victim was instructed to empty his pockets. Rosendale and his co-offenders then disembarked from the train with the victim's belongings.

(b) On 1 April 2002, Rosendale, in company with others, followed another group of males to the Ringwood Railway Station. There, Rosendale entered a carriage and demanded a bag which was at the feet of a youth. The youth refused. Thereupon, Rosendale produced a knife and held it to the throat of a second youth, who had come to the aid of the first youth.

(c) On 20 March 2001, at Mooroolbark Railway Station, Rosendale approached an acquaintance, and told him to stand up and take his bag off. The other person complied with that direction, but was nevertheless was punched in the face. Rosendale then took his bag.

(d) On 1 May 2003, in the precincts of the casino in Southbank, Rosendale and another male approached a man from behind. That man was wearing a backpack and listening to music. Rosendale and his colleague struck the person to the lower back, kicked him to the side of the head and stole his backpack.

(e) On 1 June 2003, Rosendale and another man followed a group of youths as they boarded a train at Croydon Railway Station. Rosendale's associate produced a 15cm knife and stabbed the upholstery of the seats. Rosendale remained nearby keeping watch, and pretended to have a weapon. His associate demanded money. When the youths complied, Rosendale and his associate disembarked.

48 In relation to the accused Campbell, it is proposed on behalf of Barnett to call the following evidence:

(a) On the evening of 19 March 1999, Campbell, in company with others, approached an Asian male on platform one of Flinders Street station, and punched him numerous times to the head and body.

(b) On 27 February 1999, Campbell with others assaulted, by repeatedly kicking, a male victim in Mooroolbark.

(c) On 1 April 2000, Campbell approached two men who were in a parked car in Mooroolbark. Campbell and his associates kicked in the front passenger window, cutting the face of the male passenger with the broken glass.

(e) On 20 December 2001, Campbell, in company with two others, confronted a stranger on the Maroondah Highway, stole a pair of sunglasses, produced a knife and assaulted the victim.

(f) In the afternoon of 29 December 2001, Campbell approached three youths, who were seated on a bench at Croydon Railway Station and asked them for money. He grabbed one of the youths and shoved him against a fence. Campbell then threatened to take the victim's telephone. He held the victim around the throat and punched the victim in the nose, before punching another of the youths, and making off with the telephone.

(g) On 7 November 2003, Campbell approached a young man who was speaking on his mobile phone outside Mooroolbark Railway Station. Campbell tried to take the phone from him. When the young man refused to part from it, Campbell grabbed him around the neck, held a knife to his face and demanded that he give him the telephone and his wallet. The young man then handed over his telephone, and his companion then handed over his wallet. Shortly after that incident, Campbell approached two other youths at the railway station, and punched each of them with a clenched fist. He then took the baseball cap of one of them. He met up with two female colleagues and boarded a train to Ringwood. Campbell and his colleagues subsequently alighted from the train at Mitcham. Campbell followed two youths who also alighted from the train. He approached one of them from behind, put his arm around him, and threatened to stab him with a knife if he did not give him his telephone. The youth complied with Campbell's demand. Campbell demanded that the other youth to give him his wallet, his jacket, his mobile telephone and his baseball cap. After the second youth complied with that demand, Campbell said to them "Don't dob us in, we'll kill you".

Submissions as to admissibility of tendency evidence to be adduced by Barnett

49 Mr Kelly submitted that that evidence, as to the previous offences committed by Rosendale and Campbell, was admissible as tendency evidence under s 97 of the Evidence Act. He pointed out that the critical issue at the trial of Barnett will be whether the prosecution proves beyond reasonable doubt that Barnett was not acting under duress, consisting of threats made to him by, among others, Campbell and Rosendale. The principal evidence, at this stage, pointing to any such duress is that contained in the record of interview of Barnett, and in particular in his answers to questions 19 and 92, in which he stated that he was threatened by Dobrovitch and by Campbell or Rosendale with being shot if he did not cooperate with them in disposing of Williams's body. Mr Kelly submitted that that evidence, by Barnett, would be significantly enhanced by the evidence of the previous violent conduct by both Campbell and Rosendale.

50 In response, Mr Gibson, who appeared to prosecute the case, submitted that the threats alleged to have been made to Barnett were of a different character to the type of conduct of Campbell and Rosendale in the prior offending. Further Mr Gibson pointed to the fact that the previous conduct, by both Campbell and Rosendale, occurred a number of years before the offence in this case. Thus he submitted that that evidence, in that context, did not have significant probative value for the purposes of s 97 of the Act.

51 Mr Chadwick SC, who appears on behalf of Campbell, made similar submissions. In particular, he pointed out that the previous offending by Campbell occurred approximately ten years ago, and that none of it involved the use of firearms. Mr P Smallwood, who appears with Mr Williams on behalf of Rosendale, did not make any submissions in relation to the admissibility of the evidence sought to be adduced by Barnett.

Conclusions on tendency evidence to be adduced by Barnett

52 Taking the applicable principles into account, I turn, then, to consider the admissibility of the tendency evidence sought to be adduced on behalf of Barnett. As I already stated, my consideration, of the tendency evidence sought to be adduced on behalf of Barnett, will be conditional upon an assumption that, in the course of the trial, there will be sufficiently raised the issue of whether Barnett, at the relevant time of his offence, was acting under duress constituted by threats and intimidation directed to him by Rosendale and Campbell.

53 The tendency evidence which is sought to be adduced against Rosendale consists of five offences which occurred over an eighteen month period. Each of them involved acts of violence by Rosendale or those with whom he was acting in company. Three of the offences involved the use of a knife. The other two offences involved gratuitous physical violence to innocent victims. In each case, the threat of violence, or the actual violence, was directed to securing the compliance of the victim with demands made on them by Rosendale and his associates. Thus, each of the offences have characteristics which are common with the type of intimidatory conduct which Barnett alleges he was subjected to by Rosendale. In that way, each of the previous offences revealed that Rosendale, at that time, had a tendency to act in a violent and intimidatory manner in order to achieve his own ends.

54 On the other hand, the conduct, alleged against Rosendale, took place between eight and ten years before the events in respect of which Barnett has been charged. At the time of the events with which this case is concerned Rosendale was 28 years of age. At the time of his previous offending he was 18 to 20 years of age.

55 In those circumstances, if the prosecution had sought to adduce the tendency evidence against Rosendale, it would fall well short of having significant probative value for any issue between the prosecution and Rosendale. However, that is not the question. As the authorities to which I have referred emphasise, Barnett does not bear any legal onus to prove that Rosendale engaged in the threatening and intimidatory conduct alleged by him. The issue, to which the tendency evidence will be addressed, is whether there is a reasonable possibility that such threatening and intimidatory conduct was engaged in by Rosendale to Barnett.

56 In that context, the evidence consists of five separate incidents of violent offending over a period of eighteen months. Each of the incidents, and the violent conduct engaged in by Rosendale was directed to intimidating his victim or victims. Certainly, Rosendale was ten years younger, but he was of an adult age. The incidents took place a decade previously. However, in my view, that interval does not mean that those events were so remote as to detract from their capacity to demonstrate a relevant tendency by Rosendale to act in a particular way at the time with which this case is concerned. That is, in my view, the evidence rationally adds to the likelihood that Rosendale might have indulged in the intimidatory conduct alleged by Barnett. In other words, the proposition that there was a reasonable possibility that Rosendale engaged in that conduct is, I consider, rationally enhanced by the knowledge that Rosendale had, albeit ten years previously, engaged in a series of incidents involving intimidatory acts of violence.

57 Thus, the tendency evidence sought to be adduced has probative value in relation to the issue of whether the prosecution will be able to prove beyond reasonable doubt that Barnett was not acting under duress. The question whether the evidence has significant probative value in that respect is more difficult. As I stated, I have no doubt that the evidence of the previous conduct does make it more likely that Rosendale might have made the type of threat which, as I understand it, is to be alleged on behalf of Barnett. In this context, there is force in the submission made by Mr Kelly. In particular, the principal, if not the only, issue between the prosecution and Barnett is whether Barnett was acting under duress when he participated in the disposal of Williams's body. The resolution of that issue may well depend upon the credibility of the claim made by Barnett in his interview that he was threatened, by Dobrovitch and either Campbell or Rosendale, with being shot, if he did not cooperate with them. The credibility of that statement, by Barnett in his interview, is materially enhanced by evidence that both Campbell and Rosendale had a number of previous convictions for violent conduct, in the circumstances which I have already outlined. As I have already stated, that evidence does, in my view, materially enhance the claim by Barnett, in his interview, that he was threatened with being shot by Dobrovitch and either Campbell or Rosendale, if he did not assist in the disposal of Williams's body.

58 Further, the extent to which the tendency evidence does have a probative value must be considered in the context of all the facts of the case. Section 97(1)(b) directs the court (if necessary) to have regard to " ... other evidence adduced or to be adduced by the party seeking to adduce the (tendency) evidence", in determining whether that evidence has significant probative value. It would be incongruous if, in considering that question, the court did not also take into account other evidence which was to be adduced by the prosecution. In this case, the prosecution will be adducing evidence, against Barnett, that two days before he assisted to dispose of Williams's body, Rosendale and Campbell had been involved in acts of brutal violence which caused Williams's death. In that context, the evidence of the previous offences committed by Rosendale would have significant probative value in respect of the issue of whether it is reasonably possible that Rosendale threatened Barnett in the manner in which, I understand, it is to be alleged.

59 In those circumstances, subject to the issue of duress being sufficiently raised at trial, I consider that the tendency evidence sought to be adduced in relation to Rosendale is admissible.

60 The question as to whether the tendency evidence in relation to Campbell is admissible is not as clear. That evidence concerns seven violent incidents over a period of four and a half years. In five of the incidents, Campbell was acting in company, in circumstances in which Campbell and his associates outnumbered their victim. The last three offences involved the use of violence, not as intimidation, but, rather, violence which was directed to physically overcoming the victim so that a robbery could be effected on him.

61 In that way, the evidence of that conduct demonstrates that, at the relevant time, Campbell had a tendency to act in a violent way, including a tendency to use violence to achieve his own ends.

62 On the other hand, the events, constituted by the previous offending, took place ten to twelve years before the events with which this case is concerned. At the time of the events in this case, Campbell was 30 years of age. At the time of his previous offending, he was 18 to 22 years of age.

63 Clearly, the evidence would not be admissible, if the prosecution sought to adduce it against Campbell. It would not have significant probative value in respect of any issue between the prosecution and Campbell. However, once again, the question is whether the evidence has significant probative value in respect of the issue whether there is a reasonable possibility that Campbell was involved in, or a party to, threats of violence and intimidation towards Barnett and his family. In that regard, the tendency evidence is, in my view, probative. It rationally adds to the likelihood that Campbell made, or was a party to, such threats and intimidation directed to Barnett.

64 I have some difficulty with determining whether the evidence, in the circumstances, would have significant probative value to that effect. However, the conduct constituting the previous offending was serious. It demonstrated a readiness by Campbell to resort to violence. The evidence adds support to the claim by Barnett, in his interview, that he was threatened with being shot by Dobrovitch and by Campbell or Rosendale if he did not cooperate with them. Further, again, the extent to which the evidence has probative value must be determined in the context of the case as a whole. As I have stated in relation to Rosendale, the prosecution case against Barnett is that he assisted to dispose of Williams's body two days after Campbell, with Rosendale, had inflicted a brutal fatal assault on Williams. In that context, in my view, the conduct involved in the previous offending, and the tendency to be engaged in violent conduct which is demonstrated by that offending, would have significant probative value in respect of the issue whether there was a reasonable possibility that Campbell was a party to or involved in threats of violence and intimidation directed to Barnett and his family. I am therefore of the opinion that the evidence, sought to be adduced on behalf of Barnett, would have significant probative value in relation to that issue.

65 Thus, subject to the issue of duress by Campbell towards Barnett being sufficiently raised at trial, I consider that the tendency evidence relating to Campbell is admissible.

66 Accordingly, the conclusions I have reached are:

(1) Subject to the issue of duress by Rosendale to Barnett being sufficiently raised at trial, the tendency evidence relating to Rosendale, sought to be adduced by Barnett, is admissible.

(2) Subject to the issue of duress by Campbell to Barnett being sufficiently raised at trial, the tendency evidence relating to Campbell, sought to be adduced by Barnett, is admissible.

(3) It follows that the trials of Campbell and Rosendale will be heard separately to the trial of Barnett.

[1] R v Cittadini [2008] NSWCCA 256, [22]-[23] (Simpson J, with whom McClellan CJ at CL agreed); R v PWD [2010] NSWCCA 209, [59]-[63] (Beasley JA, Buddin J and Barr AJ).

[2] R v PWD, [64]; CEG v R [2012] VSCA 55, [72]; R v White [2012] NSWSC 467, [57] (Hulme J); Middendorp v R [2012] VSCA 47, [20] (Redlich JA).

[3] CGL v DPP [2010] VSCA 26, [37]-[38] (Maxwell P, Buchanan and Bongiorno JJA); R v Semaan [2013] VSCA 134, [32] (Priest JA).

[4] GBF v R [2010] VSCA 135, [31] (Nettle JA, Harper JA and Hansen AJA).

[5] [2013] VSCA 134, [40] (Priest JA).

[6] (1996) 89 A Crim R 457.

[8] R v Lock (1997) 91 A Crim R 356, 360-1; R v PWD [2010] NSWCCA 209, [66]; JLS v R [2010] VSCA 209, [18] (Redlich JA, with whom Mandie and Bongiorno JJA agreed).

[9] [2013] VSCA 134, [38].

[10] (1996) 89 A Crim R 457.

[12] [2004] NSWCCA 280.

[13] Cf Elias v R [2006] NSWCCA 365, [31] (Simpson J); Spruill v R [2008] NSWCCA 39.

[14] [2012] NSWSC 467.