R v Acuna [2008] VSC 165

2 Mr Acuna had been doing well on the orders and as a result was under what appears to be limited supervision from Ms Gamble.

3 She saw the accused on 28 November 2005 for a supervision meeting at her office. She thought that there was something wrong with him "mentally" because of his behaviour on that day.

"Cory explained to me that he had had some contact with the police. I can't recall now what he had been spoken to by the police about, I remember thinking it was a minor matter. He seemed paranoid that he was going to be arrested by the police for no reason. Cory also expressed to me on that day that he was upset that his grandmother was terminally ill. Cory seemed to be rambling and jumping between subjects in his conversation. I remember that during our conversation Cory said to me 'I just want to kill someone'. This comment gained my attention. I asked him if he had any plans to kill someone and he told me he didn't have. I asked him if he had any weapons and he told me he didn't. I then asked him if there was anyone in particular that he wanted to kill. He said, 'Don't care, anyone random'. I then asked him whether I was at risk from him and he got a really big smile on his face and said, 'I'd never hurt a girl, I'm not angry with you'. The smile seemed really out of place and consistent with my impression that he was not mentally well. As a result of the conversation I had with Cory I spoke to my supervisor Jenny Muxlo. I informed her of Cory's apparent mental state and the comments he'd made to me. It was decided to have Cory assessed by a Crisis Assessment Team. I made contact with the CAT at Maroondah Hospital. A clinician was informed over the phone of the comments Cory had made to me. A CAT team from Maroondah Hospital then attended at the Ringwood Community Correctional Services office. Cory was willing to wait at the office pending the arrival of the CAT. The CAT attended and assessed Cory at the Ringwood office. Following the CAT assessment of Cory I was informed it was their assessment that his agitated state was due to withdrawal from cannabis. The CAT informed me that they would perform a follow up on Cory. I don't know whether the CAT had any further contact with Cory."

5 Mr G. Thomas SC, who appears with Ms Caroline Burnside for the accused, objected to the contents of the last paragraph on the basis that what Ms Gamble had been told by the CAT (Crisis Assessment Team) was hearsay. Mr R. Gibson, Crown prosecutor, submitted that the material was admissible, not to prove the content of it, but to explain Ms Gamble's later management of the accused.

6 In argument Mr Thomas said that he wanted to lead from Ms Gamble that she regarded the accused as having something wrong with him "mentally".

7 The defence reply before the jury indicated that the defences were lack of voluntariness and the specific intent required for murder.

8 The observation of the accused by Ms Gamble that he was "not mentally well" might well go to the issue of intent, at least.

9 It seemed to me that the defence did seek to rely upon the material in that way. The fact that Ms Gamble's concerns in that regard were allayed after the attendance of the CAT was relevant. If the matter is put in that way, Mr Thomas did not seem to press his objection. The removal of the expression "was due to withdrawal from cannabis" was important in his submission because of its prejudicial value. That evidence will not be led.

10 It turned out that I raised with Mr Gibson in argument the admissibility of the expressions "I just want to kill someone" and "Don't care, anyone at random". I expressed concerns about the time which had elapsed between the comments and the alleged murder, about three months, and the logical connection between the two.

11 Mr Gibson submitted that the material went to "motive" at least in the sense that it provided an explanation for something which was not otherwise explained. Mr Gibson submitted that a man who three months earlier had said that he wanted to kill someone at random did exactly that. The material, therefore, provided an explanation.

12 After lunch Mr Thomas, who had not previously objected to the material, did object to that material on the basis that it was irrelevant and/or that it was unduly prejudicial to the accused. Mr Thomas submitted that it did not go to any issue, but if it did, it was slight and highly prejudicial, the prejudicial value outweighing the probative value.

13 Mr Gibson renewed his submissions made in argument and added that since the defences were lack of voluntariness and lack of specific intent, the fact that the accused had made assertions of this kind not long before the murder would assist the jury in deciding whether the conduct was voluntary and intentional.

14 If this material is not admitted, the jury will be left with what would be a totally unexplained killing. The impugned evidence does provide a context in which the jury can consider the challenge to voluntariness and specific intent. (For an example of material which was admitted to show motive see R v Mallard unreported CCA 15 July 1983).

15 The accused, through his counsel, now raises in the trial the question of voluntariness or intention. The question of mental illness will not be relevant to the question of voluntariness but will be relevant to the question of intention. (See Hawkins v R [1994] HCA 28; (1984) 179 CLR 500).

16 I am satisfied that what was said to Ms Gamble is relevant and admissible. It is material that the jury could use in deciding whether he had turned his mind to the act of killing, i.e. was voluntary and also on the question of intention. Although almost three months before the alleged murder, it is not so remote as to be irrelevant.

17 I am satisfied that the probative value is substantial and outweighs any prejudicial effect.

18 The remaining matter for consideration is the question of whether it would be unfair to use the material against the accused. The material is prejudicial but not in any illegitimate sense. Although the accused, on 28 November 2005, may not have been functioning at his best, it did not mean (whether as part of a drug-induced psychosis or otherwise) that he did not mean what he said. Ms Gamble was worried about it. Her position, however, changed after the CAT team attended. Her dealings with the accused after that date were unremarkable.

19 I do not see anything in the circumstances which would lead me to exercise either the prejudicial/probative discretion or the fairness discretion in favour of the accused.

20 I have not taken into account one other consideration which arose after submissions had been made on this subject. When the informant, Detective Senior Constable Davey, gave evidence, Mr Thomas led from him in cross-examination, all the accused man's prior convictions. It was directed at establishing that he was not a man with a violent past. That, in turn, is directed to the proposition that he is less likely to have been a person who, by a "willed" (voluntary) and intentional act, killed the deceased.

21 If that be the argument or something approaching it, then the fact that the accused had said to Ms Gamble on 28 November 2005 that he would kill a random victim would become relevant as showing the whole of the available evidence the accused's possible "reputation" for violence. (See R v Perrier No.1 [1991] VicRp 37; [1991] 1 VR 697).

22 Mr Gibson argued, and I am inclined to think correctly, that since character had now been unequivocally put before the jury, the impact of this material is ameliorated, at least, to some extent.

23 It is not necessary for me to decide this aspect of the case, but my preliminary view is that the expressions used to Ms Gamble on 28 November 2005 would be admissible in answer to the material led by Mr Thomas as to the accused's character.