Murrell v The Queen [2014] VSCA 334

Murrell v The Queen [2014] VSCA 334 - VSCA 2014 case summary — Zoe

[143]

[COUNSEL]: In my submission, Your Honour, the handgun on the evidence of all witnesses, they almost invariably describe it as - in fact, in my submission they do invariably describe it as a black or dark-coloured handgun. Not a revolver, probably a 9 millimetre type weapon. The weapon that I've inspected is certainly at least of that type, in the sense that it's a small like magazine-style handgun, not a revolver. However, it is quite light-coloured, if I can put it - I think it's sometimes referred to as nickel plated. My observations of that particular weapon was that it had like a metal or metallic type of barrel to it. It's got a black handle, but the part of the gun that all witnesses make reference to seeing is the top barrel area of this particular weapon, and in my submission it could not in that context be described as dark-coloured. Furthermore, it's really quite a metallic colour of gun. ...

HIS HONOUR: Can you take me to the descriptions?

[COUNSEL]: Yes, Your Honour. Perhaps if I just go to the witness statements first. There is first the description offered by James Frangos. ... There's reference to the handgun ... Towards the end of the second paragraph it says simply, 'He was holding what looked like a 9 millimetre pistol finished in satin black'. We go on to the statement of Dianne Frangos ... She gives very little description of the handgun when called upon or when cross-examined at the committal hearing. ... She says, 'They were in black, the guns were black'. She's referring to both weapons at that point.

...

[COUNSEL]: Yes, Your Honour. However in my submission the fact that my client's DNA and indeed no forensic evidence linking my client to that particular handgun basically puts it - it places it in a class - and again this handgun was not located until about two and a half months later on 22 February, I think - to in my submission not give it such weight or such probative value in the prosecution of my client, to make it admissible.

HIS HONOUR: What, the evidence of the handgun you're talking about?

[COUNSEL]: Yes.

HIS HONOUR: The nine millimetre or whatever it was.

[COUNSEL]: Yes.

HIS HONOUR: Where was it found?

[COUNSEL]: Your Honour, it was found at the address of one of the co-accused, Kerry Murrell.

HIS HONOUR: Where was the other gun found?

[COUNSEL]: Same place, they were put together.

HIS HONOUR: That's the end of your argument, isn't it? Two of them found at the same location.

[COUNSEL]: Yes. But two and a half months later again, Your Honour.

HIS HONOUR: Doesn't matter. It's some circumstantial evidence. It's obviously [sic. obvious] if it had been found within two hours it would have been much stronger.

[COUNSEL]: Yes.

HIS HONOUR: There were two guns found at the same location, one of the guns has your client's DNA on it.

[COUNSEL]: Yes.

HIS HONOUR: I should have thought the combination of the two, particularly if the two guns had even some resemblance to the descriptions given by the witnesses, would be - certainly give it probative value. So what's the prejudicial effect that is said to outweigh the probative value?

[COUNSEL]: Your Honour, in my submission, Your Honour, it's simply the fact that my client's - well, evidence linking my client, that is the DNA, is found on something that is in itself an illegal weapon. As I understand, this gun is unregistered.

HIS HONOUR: Well, that pales into insignificance though, doesn't it, compared to the armed robbery charge?

[COUNSEL]: It does, Your Honour, but it essentially still has an incriminating, if you like, prejudicial effect. It simply indicates that my client is perhaps a person with a preparedness to handle firearms.

[150]

... Trial counsel for the appellant submitted that evidence should not be received of the police finding at the appellant's house the balaclava and overalls that had been shown to the witnesses or of their finding a box of similar balaclavas. It was submitted that the evidence lacked probative value and that its reception would be prejudicial.

In this Court the appellant submitted that the items that had been produced at the trial were not then said or shown to have been worn by the robber. They were mass produced items. (The statement in the grounds of appeal that the items had 'been randomly seized' is to be understood as implying that the balaclava tendered in evidence was not different in any relevant way from the others found at the house.) The appellant submitted that the Court of Criminal Appeal should have held that 'the procedure adopted [in showing the items to witnesses and asking for their comments] was unfairly prejudicial'.

The short answer to the point is that the procedure followed at trial was not unfair. It may be accepted that the witnesses did not assert that what they were shown was what the robber had worn. The highest point this aspect of the evidence reached was that the items were similar to those the robber had worn. But there was no unfairness to the appellant in proving, as the prosecution did, that he had access to items of clothing like those worn by the robber. There were two steps in that proof. First, it was necessary to show that the items in question had been found at the appellant's house. Secondly, it was necessary to demonstrate how similar the items discovered were to those that had been worn by the robber. That second step required the eye witnesses to examine what had been seized and say whether and how the items were like those the robber had worn. Further, in the forensic setting of this trial, where the DNA evidence relating to the cap that had been found at the scene loomed so large, it may be thought that the finding of not just one balaclava but a whole box of them at the appellant's house, and the finding there of an otherwise unremarkable pair of mass produced overalls was not very damaging to the appellant. ...

[152]

... A witness who is invited to identify the offender is under considerable pressure not to select anyone but the person sitting in the dock: to do otherwise is to risk looking foolish. The witnesses in the trial of the accused were not under pressure to say anything about MFI1. The questions of prosecution counsel lacked any leading character. Taken as a whole, the seven eyewitnesses revealed a variety of recollected perceptions and a variety of capacities for testimonial expression, strongly suggestive of bona fide attempts to say what they could recollect about a frightening series of events which took place unexpectedly over a very short time more than two years earlier. The lack of uniformity in their evidence about MFI1 is a sign that they felt no pressure to give one particular set of answers. There might have been pressure of that kind if prosecution counsel had employed leading questions in relation to MFI1 an error into which it is easy to fall when witnesses are questioned about chattels present in court. But counsel avoided that trap. The Court of Criminal Appeal correctly concluded that the eyewitnesses were not led into giving evidence which did not reflect their recollections.[48]

Once these considerations are put aside, there is no unfair prejudice. The more the evidence of the eyewitnesses convincingly revealed similarities between what they described in MFI1, the more that evidence 'prejudiced' the accused. The less it revealed similarities, the less it 'prejudiced' the accused - indeed it benefited him. But this 'prejudice' was not distinguishable from the probative value of the evidence; it is not prejudice as that term is used in s 137 [of the Evidence Act], and is certainly not unfair prejudice. 'Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted'.[49] Since the witnesses had provided descriptions of the offender very soon after the crimes, and these were available to defence counsel, it was possible for him to cross-examine them effectively on any departures from these statements, as he did. ...

For the same reason neither MFI1 nor the questions about it were 'unfairly prejudicial' within the meaning of s 135. Nor were they 'misleading or confusing'. Nor did they 'cause or result in undue waste of time': they comprised a small fraction of the evidence as a whole. Hence the trial judge's failure to exercise her discretion under s 135 to exclude the evidence has not been shown to be wrong.

[159]

If, therefore, the evidence of the possession of safebreaking tools here had stood alone, it would clearly have been inadmissible.

It is to be observed however, that, in a case such as this, when there is found in the possession of prisoners some implements which might have been used to commit the crimes charged and other implements which could not be put to that unlawful use, it is not always an easy matter to apply the principle which acknowledges the admissibility of evidence of the possession of tools of a burglar to identify the accused with the crimes charged. The principle of completeness might sometimes dictate that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question. While recognizing this, however, we are satisfied that in this case, where a collection of tools was found, the detailed evidence of the use to which some of the tools, which, it is clear, were not used in the crime might be used by a thief to commit other crimes, was no more than evidence of a particular criminal propensity, i.e., the propensity to steal from safes, and of the means to indulge that propensity. This conclusion is reinforced by the use made of the evidence by the learned trial judge, who referred to the proof of the possession of the 'kit' as a whole as 'evidence of tell-tale articles' and as 'evidence of suspicious articles or 'suspicious instruments'. In this way, what was admissible as evidence of identity, if it were admissible at all, was given a wider and an unjustifiable significance. Of course, evidence which is admissible because it is relevant does not become inadmissible because it also tends to prove the criminal propensity of a prisoner, although a judge should, in a proper case, in the exercise of his discretion, reject such evidence if its prejudicial effect is out of all proportion to its probative value. Furthermore, when evidence is admitted which is relevant but which also shows criminal propensity, a judge should explain the limited use that can be made of that evidence. In this case, however, we have come to the conclusion that the admission in evidence of the tools which could not have been used to commit the crimes charged, and the admission of evidence of the suitability of those instruments for the commission of other crimes, did nothing to connect the prisoners with the crimes with which they were charged beyond telling the tale of their criminal propensity.

[178]

In my view it was relevant as a piece of circumstantial evidence on the basis that evidence was led that it was found in the premises of the applicant, that he had had it in his possession at the time of the robbery, and that it was of a kind that was similar to that used in the robbery. At the trial it appears that the argument that was mounted to have the evidence ruled inadmissible was that the accused had evidence which demonstrated that the single barrel shotgun used in the bank's hold-up was longer than the exhibited weapon, Exhibit 'F'. This evidence was led from the expert, Mr Spring, on a voir dire before there was a final ruling in the matter. It was submitted at the trial that Exhibit F and the hold-up weapon were, therefore, different weapons and that the evidence should be excluded because at the most it established propensity only. The Crown relied on cases such as Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313 at 316 to argue that the gun that was found was a weapon which may have been used and was, therefore, admissible, evidence being led of it being found in the possession of the applicant and that he had had it in his possession for four or five years.

The argument advanced by the applicant below required the learned trial judge to consider whether the probative value of the evidence was outweighed by its prejudicial effect. Her Honour identified the probative value as arising from the circumstantial evidence on the basis of which it was open to the jury to find that it was a weapon that might have been used in the robbery. The prejudice, in my view, lay in the risk that the jury would infer that the applicant had a sawn off shot gun to use in serious criminal activity and was a dangerous criminal. I also interpret her Honour's reference to the need for an appropriate direction as a recognition of such potential prejudicial effect. Accepting, as I do, however, that it was open to her Honour to conclude that the prejudicial effect could be dealt with by appropriate direction, I am not persuaded that any error was made.

[183]

148 Cavkic[88] was a circumstantial case of murder against three accused. The victim was a solicitor, and the attributed motive was that discovery of theft by one of the accused, Clark, from the solicitor's trust account - he being a clerk in the solicitor's firm - was imminent. Shortly after the solicitor was last seen alive, one of the other accused, Athanasi, was intercepted by police seated in the solicitor's motor vehicle, and the third accused, Cavkic, was found in a parked motor vehicle nearby. At trial, evidence was received of lies told by Athanasi to police as to how he came to be in possession of the solicitor's vehicle. When arrested, Cavkic was found to be in possession of a pistol and a shoulder holster. At trial, a witness gave evidence that he had seen Cavkic with a pistol and holster at Athanasi's home a few weeks before he read in a newspaper that Cavkic had been found by police in a motor vehicle with a gun. The witness, Strinavic, gave evidence that the pistol and holster he had seen resembled the pistol and holster later found in Cavkic's possession. Strinavic's account was relied upon as evidence of the circumstance that, some weeks before Cavkic's arrest, Athanasi had been seen in the presence of Cavkic with a weapon and a holster which looked like the weapon and holster later found in Cavkic's possession. Since the possession of automatic pistols and holsters is rare in the civilian population, that was a circumstance which suggested that the weapon and holster later found in Cavkic's possession were those which Strinavic had seen in Athanasi's possession in his garage. Counsel submitted that the evidence was tenuous, and that the probative value of the evidence was outweighed by its prejudicial effect. The Court (Vincent and Nettle JJA, and Vickery AJA) held that the evidence was admissible as part of the circumstantial case,[89] and rejected the notion that the probative value of the evidence was outweighed by its prejudicial effect.[90]

[185]

It is clear that the jury in the present case could have regarded the evidence of identification as amounting to no more than evidence of similarity. They might not have appreciated how little such evidence proves or appreciated that several witnesses to similarity are no more probative than one, except to show that the accused resembles the offender. ...

His Honour directed the jury with emphasis that they could not convict on the evidence of betterment or the evidence of possession of incriminating articles, either alone or in combination. In addition to the passage that I have quoted, his Honour twice said that such a conviction would be based on the fallacy that 'zero plus zero' equals more than zero. If they had taken that metaphor literally, the jury would have been puzzled by a direction that 'the evidence of betterment, and/or the evidence of possession of guns and so forth, may be used ... to negative the possibility of mistaken identity'. Evidence of zero probative value could not be used for any purpose at all, but the 'zero plus zero' metaphor was no more than that. It meant only that the evidence of betterment and the evidence of possession of incriminating articles, even in combination, had such low probative value that, on their own, they would have to be disregarded altogether. The jury would nevertheless have been left with the impression that the evidence of similarity was fundamental: they could not convict on the Crown's alternative argument except on the basis of that evidence, supported by one or other or both of two other pieces of evidence that they had been told were of very low probative value indeed. As his Honour said, 'Really, the case gets back one way and another to visual identification.'

It follows that the jury were invited to convict on a basis that was not open to them. Indeed, if they convicted the applicant on a combination of witnesses to similarity and the betterment evidence, the position is indistinguishable from Pitkin's case. Those witnesses could prove no more than the fact that the applicant looks like one of the bandits. The betterment evidence, in contrast with the evidence of possession of incriminating articles, was quite insubstantial. For practical purposes it was equivalent to the absence of other evidence in Pitkin's case. Striking though the evidence of possession of incriminating articles was, it was not inevitable that the applicant would be convicted.

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