Prosecution v Prosecution

1. The accused, Troy Maskell ("Maskell"), faces a second trial for manslaughter by unlawful and dangerous act.[1] On the day he assaulted the deceased, John Burke ("Burke"), he was arrested and interviewed by police. The defence seeks to exclude any and all questions and answers from this record of interview[2] that relate to:

(1) Maskell being intoxicated when he assaulted Burke.

(2) One aspect of Maskell's state of mind immediately before and at the time he assaulted Burke.

1. If the defence succeeds for both of these categories of evidence, Maskell then seeks to have the entirety of the record of interview excluded because it would not be plausible to expect the jury to accept Maskell could not recall the relevant events in the absence of evidence about intoxication.
2. Ordinarily, the "dangerous" element of manslaughter must be considered objectively without any occasion for the jury to also consider the subjective intent of the accused at the time of the alleged offending.[3]
3. In this case, the prosecution seeks to establish a specific intent on the part of Maskell at the time of the alleged offending,[4] namely an intention to:

(1) Hit Burke in the head with a bottle when he threw it at Burke (which did in fact hit him in the head).

(2) Kick Burke to the ground when Maskell kicked Burke in the side while Burke was still standing (which did in fact result in Burke being kicked to the ground).

1. Accordingly, it is common ground that Maskell's state of mind is in issue.

B. Evidence of Maskell's intoxication may be adduced, except for the specific amount consumed

1. Maskell gave answers to the effect that he was intoxicated when he assaulted Burke. Although there is no issue that Maskell acted consciously, deliberately and voluntarily,[5] this evidence is relevant to the question of his intent.
2. Contrary to the defence submissions, Maskell's intoxication is relevant to the likelihood or otherwise of him intending to throw a bottle at Burke's head or to kick Burke to the ground at the time he engaged in the relevant acts.[6] Numerous cases have established that in an appropriate case intoxication may be relied upon by the prosecution to provide an explanation for aggressive or unprovoked conduct the subject of a charge.[7]
3. In the particular circumstances of this case, the fact that Maskell was intoxicated when he threw the bottle and when he kicked Burke could rationally affect an assessment of whether he had the alleged intentions. Put succinctly, it could explain, at least in part, why he might have formed those intentions.

1. Relying upon this evidence does not invite "propensity type" reasoning.[8] The evidence is directly relevant to Maskell's actual state of mind at the relevant time. The provisions concerning tendency evidence are not directed to curtailing evidence being led for this purpose.[9]
2. Turning to the probative value of this evidence, it is informed in part by the position adopted by the defence in seeking to have this evidence excluded.
3. The offending conduct was captured by closed circuit television cameras at a petrol service station store in which the events unfolded. Accordingly, the jury will be able to watch Maskell's behaviour and assaults from at least 2 angles, albeit some of the conduct was only videoed by one or other of the cameras in question.
4. The videos show both Maskell and his partner at times in an animated state. It might be inferred by a jury that the videos illustrate that both of them were intoxicated while in the store. For example, at one point Maskell appears to stagger slightly when passing a refrigerator. In addition, Maskell's partner's behaviour is repeatedly erratic and provocative.
5. The court was told that, if the objection were upheld (which would result in there being no direct evidence of intoxication), then the defence would be saying nothing to the jury about Maskell's intoxication. Further, the defence stated the jury would readily infer that both Maskell and his partner were "intoxicated to a degree, or at least [were] extremely agitated" (emphasis added). Later, it was submitted that the videos "might be interpreted by the jury to [show] a level of intoxication".
6. In response to this, the prosecution submitted that, in the absence of any other evidence about Maskell's alcohol consumption, there might be some difficulty in it stating to a jury that it looked like Maskell was drunk and that that fact could be taken into account.
7. It would be unsatisfactory for the jury to be left to speculate about whether or not Maskell was intoxicated at the time he assaulted Burke. On the questions of intent,[10] the evidence is highly probative. Absent evidence of intoxication, the jury may be left to consider whether a person who was not intoxicated would be likely to behave in the way in which Maskell did with the alleged intentions. The videos show Maskell acted with a significant level of aggressiveness towards a total stranger in circumstances where Burke, an elderly man, was entirely passive and provided no provocation whatsoever.
8. In submitting the probative value of this evidence was very low, the defence referred to the prosecution's position in the previous trial that everything the jury needed to know about Maskell's conduct could be seen from the videos. However, the respective positions adopted above[11] and the content of the videos themselves make it plain that some considerable uncertainty would remain as to whether or not, and to what level, Maskell was intoxicated if no further evidence on this issue were adduced. Maskell's level of intoxication goes directly to the question of whether there is a ready explanation for his behaviour and it is highly probative on the issue of why he might have acted in the way that he did. Its value outweighs any unfair prejudice (which is far from apparent) that might attach to evidence that merely indicates Maskell had consumed a significant amount of alcohol before he entered the store.
9. Further, although there were some questions and answers which might have suggested (as was the fact) that Maskell drove to the petrol station immediately before he entered the store, that evidence is irrelevant.[12] The prosecution accepted that any such evidence should not be admitted; so there would be no evidence that Maskell drove that night, and thus no prejudice in that regard would flow from admitting his evidence of intoxication.
10. The parts of the interview that will be adduced include that Maskell told police (wrongly) that his partner had driven to the service station. It forms no part of the prosecution case that Maskell lied to police. Thus, there could be no rational basis for the jury to infer Maskell had been the driver. Although the defence referred to Maskell's partner also being apparently drunk or agitated, any possible prejudice from this very peripheral matter could only be negligible at most.[13]
11. It follows the evidence generally of Maskell's intoxication has high probative value and ought not be excluded. That said, it is not necessary for the jury to know precisely how much alcohol Maskell had consumed. The specific amount may be significant in many cases, but it is not presently material where the questions and answers that will be adduced make it plain that Maskell was intoxicated.
12. To explain, evidence of the actual amount has the potential to be unfairly prejudicial. In one of his answers, Maskell stated that in the afternoon and night immediately preceding the offending he drank a whole case of beer[14] as well as a "couple of shots of Jack Daniels". Immediately after this, Maskell stated he did not know how many shots he had had. This detail is of little probative value because of Maskell's other answers, but carries the risk of a jury being distracted by these details. Therefore, the danger of unfair prejudice of this limited evidence outweighs its probative value.

C. Evidence of Maskell's stated belief that Burke had grabbed or attempted to grab his partner must be excluded

1. In a number of his answers, Maskell stated that Burke had grabbed or tried to grab his partner. He said this had occurred before he confronted Burke and then assaulted him.
2. The prosecution seeks to adduce this evidence to invite the jury to conclude that at the time of the assaults Maskell believed Burke had assaulted or attempted to assault his partner.
3. Admissions by Maskell as to his state of mind which may have given rise to a motive for what he did are plainly relevant. The real question is whether or not the evidence must be excluded.
4. Maskell gave these answers approximately 14 hours after the relevant events. Because he had been so heavily intoxicated at the time of the assaults, he had virtually no recollection during the record of interview of what had occurred. So much was not in dispute. Accordingly, absent any corroborative evidence, his stated belief during the interview that Burke had grabbed or tried to grab his partner (along with the other incontrovertibly inaccurate matters that he purported to recount) could be of little probative value.
5. Further, when the videos of the lead up to the assaults are viewed, it is incontrovertible that Maskell could not possibly have seen anything that could have led him to understand that Burke had grabbed or attempted to grab Maskell's partner. Furthermore, there is no evidence of anything said by any witness from which it might possibly have been inferred that such events had occurred.
6. The evidence must be considered as a whole,[15] including the total lack of any evidence from which it might be inferred that Maskell could have been under the impression that Burke had grabbed or attempted to grab his partner. When considered in its proper context, Maskell's statements as to Burke's purported conduct appear to be an attempt by Maskell to rationalise or provide an excuse as to why he had acted in the manner that he did; which in fact bore no resemblance to what had occurred. Whether this is correct or not, there is no proper basis to infer that what was stated by Maskell during the interview on this matter bore any resemblance to what he might have thought at the relevant time.
7. Thus, the evidence has little, if any, probative value and would be unfairly prejudicial in providing a false narrative as to a possible motive for the assaults. This unfair prejudice to Maskell outweighs any probative value the evidence might have, and must be excluded.

D. Some further matters must not be admitted into evidence

1. There were a number of matters raised during the course of the hearing in addition to the issues referred to above, which included the police mischaracterising what the videos recorded. These concerned both the first and a later police interview. As these were ultimately the subject of agreement between the parties, it was unnecessary for the court to rule on them.

E. The edited record of interview is admissible

1. After redactions are made in accordance with the rulings above and the parties' agreed position with respect to both records of interview, there will still be a substantial body of relevant evidence. Appropriately, the defence did not contend that what remained in these circumstances could not be properly put before the jury.

(1) Adduce evidence of Maskell stating in his first police interview that he was intoxicated at the time of the assaults.

(2) Not adduce evidence of the questions and answers relating to Maskell stating that Burke had grabbed or attempted to grab Maskell's partner.

[1] On 11 July 2025, the Court of Appeal set aside a conviction of manslaughter: Maskell v The King [2025] VSCA 170.

[2] There was a later record of interview conducted a few days after Burke died, which was approximately 11½ weeks after Burke was assaulted by Maskell.

[3] The elements of manslaughter by unlawful and dangerous act being: (1) the accused committed acts that caused the victim's death; (2) each of those acts was committed consciously, voluntarily and deliberately; (3) each of those acts was unlawful; and (4) each of those acts was dangerous.

[4] See Maskell v The King [2025] VSCA 170, [285]-[294] (Emerton P, Kennedy and Kidd JJA) concerning the significance of the alleged intention to hit Burke's head.

[5] As was the position in the first trial (Maskell v The King [2025] VSCA 170, [222] (Emerton P, Kennedy and Kidd JJA)), the defence will not seek to argue that Maskell was intoxicated to such an extent that he could not control his actions.

[6] See Evidence Act 2008 (Vic), s 55.

[7] See, for example, R v Le Broc [2000] VSCA 125; (2000) 2 VR 43, 52 [28] (Phillips CJ, Batt and Cummins JJA). See also The Queen v O'Connor (1980) 146 CLR 64, 71.6 (Barwick CJ).

[8] See Evidence Act, s 97(1).

[9] Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206, 278-280 [358], [361]-[363] (Bathurst CJ, Hoeben CJ at CL and Simpson J).

[10] See par 4 above.

[11] See pars 13-14 above.

[12] Maskell v The King [2025] VSCA 170, [221]-[227] (Emerton P, Kennedy and Kidd JJA).

[13] Compare ibid, [227], where it was observed that any unfair prejudice from the jury knowing that Maskell himself had driven would only be negligible.

[15] Director of Public Prosecutions v Paulino [2017] VSCA 38, [22] (Weinberg JA), [67] (Priest JA) and the cases there cited.