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[2011] VSC 535
Supreme Court of Victoria
2011-10-24
T FORREST J
Original judgment source is linked above.
EVIDENTIARY RULINGS - Relevance - Section 55 Evidence Act 2008 - Probative value and impugned statements - Whether outweighed by unfair prejudice to accused - Section 137 Evidence Act 2008.
1 The accused Shane Bond is charged with the murder of Elisabeth Membrey on or about 7 December 1994.
2 Ms Membrey was last seen at her workplace, the Manhattan Hotel, at about 11.30 on the evening of 6 December. The Crown case is based on circumstantial evidence and purported admissions, allegedly made by the accused. There is no forensic evidence linking the accused to Ms Membrey's disappearance or death.
3 In very short compass, the Crown rely on a number of strands of evidence which they contend are sufficient to prove that Ms Membrey was murdered in the early hours of 7 December 1994 and that Shane Bond was the person responsible for that crime. What follows is not an attempt to set out every piece of evidence the Crown rely upon. Forensic evidence will establish the presence of, in large quantities, Ms Membrey's blood in her unit. Various witnesses will say the deceased was in the company of a man who loosely fitted Mr Bond's description on 6 December 1994. That man was observed to be abusing Ms Membrey between 11.00am and 1.00pm.
4 A little later, a man was observed to be arguing with Ms Membrey in the driveway of Ms Membrey's unit near the back of a blue Gemini motor vehicle.
5 Later in the evening of that day, Ms Membrey commenced work as a bar attendant at the Manhattan Hotel, Ringwood. At about 8.00pm, during a work break, she was seen seated at a table with an unidentified male. At about 11.15pm, while serving behind the bar in the public bar area, Ms Membrey was seen apparently arguing with an unidentified male. That male took hold of her wrists and she pulled away. The male and Ms Membrey were then observed to leave the hotel together at about 11.30pm.
6 Andrea Pumpa lived then in the adjoining unit to Ms Membrey's unit at 92 Bedford Road, Ringwood East. In the early morning of 7 December 1994, she was woken by the barking of her dogs. After a period she heard a very loud "bang" from the vicinity of Ms Membrey's unit. She investigated and believes she saw a small dirty white car near the front gate to the unit. A truck driver in Bedford Road at 3.30am saw what he believed to be a small powder blue sedan, perhaps a Datsun, exiting the driveway of 92 Bedford Road and enter that road erratically. Another motorist saw a red small four door hatchback, similar to Ms Membrey's vehicle, being driven very slowly at approximately 3.45am - 4.15am in Bedford Road. There appeared to be a sole male occupant. At 4.40am, a witness noticed a white two door sports car across the driveway of 92 Bedford Road.
7 Ms Membrey's boyfriend and parents attended the unit on the evening of 7 December 1994. Her car was parked in the driveway. The aforementioned blood was observed in the hallway of the unit. Her wallet, house keys and car keys were missing. Elisabeth Membrey has not been seen by any witness since leaving the hotel late the previous evening.
8 Geoff Jacobs lived in New Street, Ringwood with Sean Wallwork. The Crown allege that the accused moved in with Mr Jacobs at some stage in late 1994. Mr Jacobs will say that he observed the accused one morning at about 5.30am to have arrived home covered in blood. According to Mr Jacobs, the accused stated that he had had an epileptic fit and bitten his tongue. The Crown say this occurred on the morning of 7 December 1994. Some time shortly thereafter, Mr Jacobs says the accused said he was in trouble with "the Elisabeth Membrey thing."
9 The Crown rely on several other remarks the accused allegedly made over the last 17 years. I do not propose to set them all out. They allegedly range from equivocal remarks such as "this would be a great place to bury a body if you did not want anybody to find it" to confessional statements.
10 In January 2008, the accused was interviewed by police. He stated he may have met the deceased once or twice as he drank at the Manhattan Hotel. He denied conducting a relationship with her or murdering her. He stated he owned a white or cream Datsun at the time.
11 For completeness, I should say that over the years the police have investigated other suspects for the murder of Elisabeth Membrey, and it is anticipated that some time at trial will be occupied examining the evidence obtained in those investigations.
12 It is against this background that Mr O'Connell SC and Mr Georgiou, who appear for Mr Bond, raise several exclusionary arguments relating to various portions of evidence in the Crown case, each of which I will now deal with in turn.
13 Mr Young was 19 years old in January 2008. At that time he made a statement to police recalling events from two years' prior. He was an employee of a concreting business conducted by Mr Bond and a Mr Michael Angelo. The only other employee was John Ross Wilkinson. He said it was common knowledge amongst the workers that Shane Bond had been spoken to by police about Elisabeth Membrey's disappearance. According to Mr Young, on one particular day, after pouring a concrete slab, all four commenced drinking at about 10.00am and then continued at lunch at the Warburton Hotel. They then went to Mr Angelo's house and continued drinking. Mr Young describes his condition on that evening as "pretty pissed". He said that he is unable to remember exact conversations but "certain things stick in (his) ...mind."
14 Mr Young said there was some conversation out by the pool between Mick and Shane about Elisabeth Membrey, but he didn't really take it in. Later in the evening he recounts the following:
I remember watching the television with Shane at one stage that night, we were both really wasted. I am not sure where Mick and John Ross were at the time. The film 'Wolf Creek' was on television, I am not sure if it was a DVD or what. I remember Shane and I were talking about CSI and DNA sort of stuff and how Police can investigate things. I recall Shane saying something like "The fucking bitch deserved it, she got what was coming to her."
When Shane said that, it was like a drunken rambling. I am not sure whether he was talking about his partner, Lisa, because they used to fight a lot or someone else. Because he had been speaking about the girl from the Manhattan Hotel earlier in the night, I thought he may have been talking about her, but my memory is not good enough to say that for certain. It might just be something that I put together myself.
15 Mr O'Connell submits that this conversation is irrelevant and ought be excluded from the evidence in this case. Mr Horgan SC, who appears with Mr Gilligan for the prosecution, submits that it is open to a jury to find that Mr Bond was referring to Ms Membrey in the passage set out above, and that therefore the conversation is relevant to demonstrate a continuing animus towards Ms Membrey.
16 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".[1] I consider that the evidence I have set out above could not rationally bear upon the probability of the existence of a fact in issue in this proceeding. It is entirely unclear of whom Mr Bond was speaking. It could have been Elisabeth Membrey (he had been speaking of her some time previously), it could have been his partner, it could have been any other female with whom he had a disagreement, or it could have been one of the female victims in the Wolf Creek film. There is no other evidence in the case capable of giving this evidence focus. In the circumstances I accept Mr O'Connell's contention that a conclusion that the comment was directed towards Ms Membrey involves impermissible speculation. Accordingly, I will not allow the impugned part of Mr Young's evidence to be led.
17 Mr Wilkinson was a fellow employee with Mr Young of the business conducted by Mr Angelo and Mr Bond. He too was present at Mr Angelo's house with James Young in January 2006. Like Mr Young, Mr Wilkinson accepted that the four men had finished work early on a very hot day and had been drinking from about lunchtime. He described his sobriety in a statement made two years after the relevant evening in the following terms, "I was pissed the night the conversation took place." In essence he accepted that he had been drinking on and off for a dozen hours before the conversation he described occurred. Mr Georgiou objects to parts of the following passage from Mr Wilkinson's statement being adduced by the prosecution:
While they were talking they started talking about hotels that they used to drink at. One of them mentioned the Manhattan Hotel in Ringwood and I remember Jamie saying that he liked that hotel and that he had been there. Then Mick and Shane stated [sic] talking about a girl that worked at the hotel. I got the impression that Shane went out with this girl. From the way they were talking, I had the impression that Shane saw her away from the pub as well. I remember Mick said that she was pretty good looking. I have no idea how long ago they were talking about, but they both seemed to recall this girl. Then I remember Mick saying that she had been murdered. When he said this, my ears pricked up and I started listening more carefully.
I remember that they said that the girls [sic] name was Elisabeth MEMBREY. I had never heard that name before and I had no idea what they were talking about. The reason I remember the name is because they said it quite a few times. Shane started talking about people who must have been around at the time that she was murdered and he mentioned some names of people that the Police have spoken to, but I can't remember those names.
As they kept talking, it became clear that the body had never been found. I remember that Shane seemed to know a lot about it. At one stage, Mick said something like, 'you seem to be telling the story' and Shane continued to talk about it. It was clear that Mick and Shane both drank at the hotel around the time that this all happened. Mick started talking about Shane taking off around the same time that this all happened. Mick asked Shane why he stopped drinking at the Manhattan Hotel after MEMBREY went missing. Mick was talking about some function that they had on at the hotel that Shane did not turn up for. It must have been just after the girl went missing. At first Shane said he went 'up the back to the hill'. When Mick asked him why he took off without telling anyone and then stayed away Shane said that he went to see some mates up the hills at Warburton. He did not say where he went exactly and the way he said it was like he did not want to let on where he went.
Shane was also talking about a soccer club and a pair of shoes going missing from a white car at the soccer club. He was talking about the car being parked next to the pine trees at the Ringwood Soccer Club. They were talking about this at the same time as they were talking about MEMBREY. I am not sure how this fitted into the story.[2]
18 For clarity I have included the entire passage. The defence object to the underlined parts of that passage and contend that I ought exclude the underlined passage as being either irrelevant (s 55 of the Act) or of such little probative value that any such value it may have is outweighed by the danger of unfair prejudice (s 37 of the Act). It is necessary to set out the effect of some other passages of Mr Wilkinson's evidence[3] in order to fully understand Mr Georgiou's contentions about relevance and probative value.
19 The prosecution seek to use this evidence for a singular purpose. If the jury were to conclude from it that Mr Bond went "up the hills" at the time of or very shortly after the disappearance of Ms Membrey then he did so from a consciousness of his guilt of the crime of murder. Thus the prosecution submit that this evidence is capable of constituting an implied admission of guilt by Mr Bond of the murder of Elisabeth Membrey.
20 This evidence is relevant in this proceeding if it could rationally affect (directly or indirectly) the assessment of the probability of the following fact in issue - whether Mr Bond disappeared for a time at the time of or very shortly after the disappearance of Elisabeth Membrey.
21 Mr Wilkinson's evidence has many limitations. In his statement he asserts a partial recollection of a drunken conversation that occurred two years earlier. Mr Angelo denies outright that the conversation occurred at all.[9] To the extent that Mr Wilkinson's recollection is of assertions by Mr Angelo, these are only admissible if they elicit a probative response from Mr Bond.
22 Nevertheless, Mr Wilkinson on a critical matter does assert a recollection of a statement by Mr Angelo and a response from Mr Bond. He says:
Mick started talking about Shane taking off around the same time that this all happened. Mick asked Shane why he stopped drinking at the Manhattan Hotel after MEMBREY went missing. Mick was talking about some function that they had on at the hotel that Shane did not turn up for. It must have been just after the girl went missing. At first Shane said he went 'up the back to the hill'. When Mick asked him why he took off without telling anyone and then stayed away Shane said that he went to see some mates up the hills at Warburton.[10] (my emphasis)
23 It is apparent from the above passage that Mr Wilkinson says in his statement that Mick asserted and Shane acknowledged that he (Shane) stopped drinking at the hotel after Ms Membrey went missing and in particular missed a function at that time. As to how soon after Ms Membrey went missing, Mr Wilkinson uses reconstructive language - it must have been just after the girl went missing. At the committal Mr Wilkinson was pressed as to this issue:
Let's come back to the conversation, you told the police that Mick started talking about Shane taking off around the same time this all happened, can - it's important for us to understand the words that were used, are you able to recall what his words were? --- Yeah, he said something about, you know, you weren't around, where did you go, or something like that, I don't remember exactly what he said, but I remember the gist of it is, he asked him, yeah, you took off for a bit and what happened to you.
You made reference to a function at a hotel that Shane did not - sorry, at the hotel that Shane did not turn up for, can you recall what that function was? --- I think it was back before my days, I would've been around five, at the time, or something like that, but they said, back in the old days and it was some get together or something, I don't know, mate, it's not ---
I know you don't know, but you were there listening to Mick talking and I'm just trying to ascertain what it was, whether Mick gave any better description of the function? --- Mate, it's been a few years, I can't remember what they were talking about, but it was - they were talking about getting on the piss half the time and good times they've had and Mick's said something about something went on, they caught up with some people and he wasn't there, so ---
Did Mick say when that function happened? --- Years ago, I don't know.
You don't know ---? --- It was not the year we were drinking, it was back in their past.
I'm just asking you, did Mick say anything about when the function was meant to have been on? --- Well, yeah, I remember the conversation, it was about the time you weren't around, so - that's - he was implying that he wasn't there, I don't ---
What time was that? --- The time?
Did Mick say what time it was, which year it was or when it was that Shane was not around? --- He said "back then", they were talking of a conversation which we had missed out on, bits and pieces, and he was talking about the time in question he was talking about.
This is a conversation that you're drifting in and out of, I take it --- ? --- We were talking about
Is that right? You're drinking in and out of --- ? --- Of me and Jamie talking in between?
Yes? --- Yes. We joined in on the conversation in between, when - specific points we wanted to talk about, such as bars and things we'd done, we had a conversation or said, or yeah, this and that, and they were continuing their thing.
You didn't hear the entire conversation between Mick and Shane? --- No, sir.
Those bits - and it's not as if you only picked up on half the conversation, you were coming in and out of the conversation, is that a correct way to put it? --- To be more frank, excuse myself, but as - at the time, I didn't really care, we were just drunk and we talking about stuff and even until the day they questioned me, I really didn't care what they talk about, it's between them and then they said, I have to tell them, so I had to tell the police - so - to be quite honest, I really didn't want any part of it, but they have questioned me and said I have to give a statement, I gave a statement, that's the statement you have before you, sir, so I'm sorry that my memory has been subsequently - not quite erased, but I've gone through a few traumatic periods in my life since then, one was occurring is Black Saturday where my parents' house is, so I excuse myself if my memory isn't as good as what's in the statement, but that's what they asked, that's what I told them and, at the moment, I can remember certain things, I don't remember certain times, so I am sorry for that.
You don't need to apologise, you can only give the evidence you can recall. You mentioned something about Shane saying he went to see some mates up the hills at Warburton, do you remember ---? --- Yeah.
--- any part of that conversation? --- Yeah, that's between Mick and Shane, they - it was about the time he said he went away, so he talked about that.
Did Shane specify Warburton or did you assume it was Warburton he was speaking of or what? --- It may have been Warburton. Like I said before, it was a long time ago, I can't remember my specifics, but you do have the statement there. [11]
I regard his answers at the committal as unilluminating.
24 On the voir dire he was further pressed on the timing of Mr Bond's departure 'up the hills'. In examination in chief the following exchange occurred:
Do the best to tell us what you understood what was being said to you and then we'll find out what the words were - perhaps the way we might go about it. What did you understand was being referred to?---As what would be referred if Mick has asked "Where have you gone, mate?" And he said "I've gone up the hill", he's obviously gone - I though he must have stayed with a friend up towards Warbie or something or maybe Mt Dandy, the two closest hills I could think of.
Getting back to the distinction between singular and plural, your recollection is that what was said to you was singular or plural?---I'd say at the time singular. Now that I think about it there's multiple places he could have gone with mates, I've got friends that live in - - -
That's all right, we don't want your conclusions, just what was said, that's what we're concerned about?---Yeah, I'm pretty sure he said hill but, yeah.
In what context did he say that? How did he say that? What caused that to be said or what conversation had taken place immediately before that was said?---Well the conversation before that was about the girl going missing and then thee was something said about a white car, a soccer club at Ringwood and then Mick said, "Well where d'ya go, mate, you know, we haven't seen you at the pub?" And he said "I went up the hill", and that's what stuck in my mind was OK, you went up the hill. To not understand more about their past, I just assumed he went and do whatever boys do back then. So he, to my assumption, he went - went missing for a bit, he went took some time out and.
Was anything said about the time span in which this occurred? I mean, you've got the fact of the girl going missing, the fact that he says he went 'up the hill', was there anything said about how long that happened between the girl going missing or how long passed between the girl going missing?---I don't really recall that part of the conversation, sir, I'm sorry.[12]
In cross-examination Mr Georgiou returned to this issue:
Let me ask you did Mick say anything about how long after Ms Membrey went missing that Shane Bond stopped drinking at the hotel?---No, I don't recall that sir.
You make a reference to some function in your statement. Do you remember that?---Yeah, that would be something just ---
Can you now recall anything being said about where the function was?---No sir.
In your statement you said, "Mick was talking about some function that they had on at the hotel that Shane did not turn up for"?---Yeah I don't - - -
Can you remember which particular hotel they were referring to? ---It - I know which hotel they referred to but I don't know what it was about or when it was or - - -
Which hotel were they referring to?---He, he spoke of the Manhattan Hotel when he was talking about Shane not turning up.
...
Can you now recall as to the function, when the function was meant to have been?---Well back in the old days when this had happened. Not in the recent times. I think you just answered your own question by saying it was not long after the girl had gone missing, that is when it happened. So I think you've already got your own answer there as yeah, it had happened at some time after she'd gone missing. And Mick was questioning why he wasn't about to attend or to catch up with the drinks and I had just assumed that he'd gone on holiday. Told the police officer what I've told in my statement, is this had happened after.
You told the police in your statement, "It must have been just after the girl went missing." Do you remember that appearing in your statement?---Yeah I'm pretty sure that was what was in the statement. Not word for word, I'm - to the gist of it, yeah.
Have a look at it if you like; it's on p.2 of your statement. You can open it up. Sorry it's not p.2, it's p.4 of your statement in the first full paragraph from the top of the page?---Yes.
About two-thirds of the way through that paragraph?---Half way through that paragraph. Yeah you can see here why it's typed, it was my assumption that's - that, "It must have been just after the girl went missing." So it's something that I have assumed obviously in my statement. [13]
25 I consider that Mr Wilkinson was an entirely honest witness who was doing his best to recall the conversation. There is no doubt that his reliability as an historian is significantly undermined by his partial participation in the conversation, his intoxication and the effluxion of time. Normally matters of reliability are questions for a jury and a judge ought be loathe to substitute his or her views for that of the jury.[14] Whilst I consider there are really significant limitations to Mr Wilkinson's evidence I do not consider that they reach such a level that no reasonable jury could act upon the evidence.
26 Having said that, there is, I consider, a fundamental question of relevance that is fatal to the reception of this evidence. The prosecution rely on the evidence to found an inference of an implied admission of guilt through post offence conduct, namely flight. Ordinarily evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by a consciousness of guilt of the offence with which he or she is charged.[15] I consider that, taking Mr Wilkinson's evidence at its highest for the prosecution (that is, ignoring all questions of reliability), no jury could legitimately infer that Mr Bond's trip "up the hills" was occasioned by his consciousness of guilt of the murder of Ms Membrey. A jury could perhaps infer that Mr Bond departed some time after Ms Membrey's disappearance, but I do not consider Mr Wilkinson's evidence would allow a jury legitimately to conclude how long it was after Ms Membrey's disappearance that that departure occurred. Mr Wilkinson, when pressed on this aspect, was perfectly frank. He didn't know. The reference to "just after" in his statement he accepted was his assumption. He did not point to any part of the conversation where he could say this was asserted by Mr Angelo or acknowledged by Mr Bond.
27 It follows that I do not consider that the impugned evidence, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. In more direct language there is nothing in any part of the conversation that Mr Wilkinson actually recalls that is capable of constituting an admission by Mr Bond that he went "up the hills" just after Ms Membrey disappeared. I do not propose to receive the evidence.
28 In 1994 and into 1995 Ms Fiona Phillips lived in a house on Mt Dandenong Road, Ringwood. Some time after she moved into that house the accused also moved in as a tenant. According to Ms Phillips' statement, at some stage during his tenancy 'he stormed in saying "the fucking bitch from (or at) the Manhattan." That was it. He stormed up the hallway to his bedroom and then he left.'[16] Ms Phillips asserts in her statement of 15 December 2009 that this remark was made by Mr Bond "prior" to her hearing in a news bulletin that Elisabeth Membrey had disappeared. She said that when she moved out of the house Mr Bond was still living there. The timing of this alleged remark was pursued peripherally at the committal. She said that Mr Bond moved in in 1994.[17] She said he made the above remarks in November 1994 at a time when he was living at that address.[18] On a voir dire this issue was explored in more depth. The witness confirmed her recollection that the statement was made in around late November and added that it occurred about 4 or 5 weeks before she heard the news bulletin.[19]
29 Mr O'Connell submitted that I ought exclude this evidence as irrelevant or having a probative value that is outweighed by the danger of unfair prejudice to the accused. He developed the submission by contending that the preponderance of the evidence in the case would demonstrate that Mr Bond did not move into Ms Phillips' house until January 1995 and, if that be the case, then this remark was not made until after the disappearance of Ms Membrey. Thus, so the argument went, the probative value of the utterance is diminished and outweighed by the degree of unfair prejudice.
30 Whether the statement is made before or after Ms Membrey's death, I consider that it is relevant. It is a demonstration of animosity towards a female who is either a patron, a staff member or in some other way attached to the Manhattan Hotel. It is a statement made at about the time of Ms Membrey's disappearance, give or take a month or two. I consider that, in combination with the other evidence in the case, it would be open for the jury to conclude that the statement was referring to Ms Membrey. If accepted, the evidence could rationally affect the probability of the existence of a fact in issue in the proceeding. I consider that it would be open to the jury to conclude that the remark related to Ms Membrey for the following reasons:
(a) The comment is, as I observe above, directed at a female in some way attached to the Manhattan Hotel.
(b) The comment was made at about the time of Ms Membrey's disappearance.
(c) The comment needs to be viewed in the context of the rest of the admissible evidence in the Crown case and in particular with the following:
iii. Rodney Simm says Mr Bond had a limp at about that time.
I am of the view that a jury could legitimately conclude that the statement attributed to Mr Bond by Ms Phillips was a reference to Ms Membrey, regardless of whether it was made before or after the death of Ms Membrey, and is capable of demonstrating animosity towards Ms Membrey either before her death, or continuing animosity towards her after her death.
31 I consider the probative value of the statement is high regardless of whether it was made before or after the fact. I can see nothing in the aspect of unfair prejudice that can be said to outweigh this probative value. Mr O'Connell submitted that unfair prejudice arose because a process of speculation was required before a jury could conclude that the remark was directed at Ms Membrey. I have already dealt with this. I consider a jury could legitimately conclude that the remark was directed at Ms Membrey. If speculation was required for this conclusion the evidence would not satisfy s 55 of the Act and would be irrelevant. Mr O'Connell further submitted that the language in the remark conjures an emotional response that's to the disadvantage of the accused. Juries are robust institutions and if there is any real danger of unfair prejudice from the language employed this can be dealt with by direction.
32 I am satisfied the evidence of Ms Phillips is relevant and that its probative value is not outweighed by the danger of unfair prejudice. I will allow the prosecution to adduce evidence of the impugned remark.
[1] Evidence Act 2008 (Vic) ("the Act") s 55(1).
[3] Mr Wilkinson's evidences comprises his statement sworn 5 January 2008, his committal evidence and his evidence before me on a voir dire.
[4] See committal T599.8; voir dire T737.28ff.
[9] Statement of Stephenson (formerly Angelo).
[13] Voir dire T751.15 - T751.31; voir dire T752.6 - T752.31.
[14] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228.
[15] R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510.
[16] See the statement of Fiona Phillips.
R
Bond
(2006) 66 NSWLR 228