R v Camilleri [1999] VSC 159

Supreme Court of Victoria|1999-02-16|Before: VINCENT, J.

Prior to the empanelment of a jury, Mr. Langslow who, with Mr. Mullaly of counsel, appears on behalf of the accused man, objected to the introduction into the trial of the evidence which it is anticipated would be given by and relating to a young woman named Rose Gandarias.

Briefly described, that prospective witness, it is anticipated, would describe an event which, she asserts, took place approximately three weeks prior to the time at which the two victims in the present matters were abducted. According to her statements, Miss Gandarias was inveigled into a motor car owned by the accused man and in which he was present with a person, named Lindsay Beckett, who has already pleaded guilty to the murder of the two girls. During the ensuing period of 12 hours Miss Gandarias was, she claims, held captive, transported over a considerable distance from Canberra where she entered the car, and subjected to repeated acts of rape, physical violence and threatened violence until she managed to escape.

Mr. Hicks of counsel, who appears as senior counsel on behalf of the prosecution, has provided the Court with a list of a number of common features which, he contends, and which I accept, may be observed in the two occurrences.

Rather than set them out seriatim, that list has been incorporated as Appendix A to this ruling. The separate features contained in it, of course, vary substantially in significance and some, considered separately, may be perceived as inconsequential.

The evidence of Miss Gandarias possesses, the prosecution has argued, considerable probative value in the present context. Again, rather than recite the contentions as to relevance upon which reliance was placed in support of this argument, the written outline with which the Court was provided, and on the basis of which discussion proceeded, has been incorporated as Appendix B.

Similarly, I have incorporated (as Appendix C) the Outline of Argument which has been provided by the defence in response to the prosecution contentions.

As will be observed upon perusal of these appendices, there has been, for practical purposes, no controversy concerning the principles which a trial Judge must apply in such situations. The real area of dispute has centred around the effect of their application to the particular circumstances of the present case. Accordingly, I do not propose to embellish this ruling by the inclusion of a litany of non-contentious propositions of law. Some reference is, nevertheless, required to the impact of the relatively recently enacted s.398A of the Crimes Act 1998. I will return to this aspect.

Here, one of the two alleged perpetrators has specifically accepted that it was he who physically performed the acts which brought about the deaths of the two victims. However, he has asserted that he acted in concert with and under the direction of the accused. In his interview with the police, the accused repudiated this allegation. His version and that provided by Beckett are diametrically opposed in a number of respects. He denied that he was, in any way, involved in the murders or that he had sexual relations with either of the victims. He denied that he knew until some time later that Beckett had killed them. He claimed that he was under the influence of heroin at all relevant times, and in a drug induced sleep for virtually the entirety of the period that the girls were in the car. He asserted, that at the time that they were killed, he was in his car, either asleep or in a semi-comatose state.

Against this background, I consider not only that there is considerable force in the Crown contention that,

"If a jury accepts the Gandarias account, they would be entitled to reason that the Bega incident has all the hallmarks of a Camilleri/Beckett joint adventure. When taken in conjunction with the other evidence in the case (such as Camilleri's seminal stains on Lauren's shirt, his admitted presence throughout the journey and at the scene of the killings, the proximity in time between the Gandarias incident and the Bega incident (21 days), and Camilleri's subsequent role in the destruction of evidence) as a matter of common sense and experience it points with great force to the Bega incident having been undertaken jointly by Camilleri and Beckett. It readily permits the inference that Mr. Camilleri played the same active role in the events involving Lauren and Nichole as he did in the Gandarias incident. That is, the evidence makes it more probable that Camilleri played the role attributed to him by Beckett."

but that it would be an affront to common sense, (in view of the issues which are likely to arise in the trial), to withhold evidence of such a highly probative character from the jury.

In a case in which the prosecution contends that two men have jointly abducted, raped and then murdered two teenage girls, and the accused has denied that he played any part at all in these events, the existence and character of a continuing relationship between the alleged perpetrators from a time proximate to the occasion in question may well assume significance, as it could bear in more than one way upon the likelihood or otherwise that the accused was involved in the commission of such extraordinarily serious crimes.

Evidence, if accepted, that, only three weeks before the night of the abduction, the same two men had engaged together in the abduction and rape of another young woman, in circumstances bearing striking similarities would, in my opinion, clearly possess importance in this context, not because it would inevitably or even, of itself, probably follow that they had engaged jointly in the later crimes, but as a factor to be taken into account with other matters when considering the possible complicity of the accused in what the prosecution contends was a joint enterprise. Each of the aspects of possible criminality which may be observed in the narrative provided by Miss Gandarias could be legitimately perceived as significant to an understanding of the character of the association between the two men, an association which, on her version, was able to encompass joint activity of an extremely serious and relevant kind. Further, when considering the role attributed to the accused by Beckett with respect to the events leading to and including the killing of the two victims, the nature of the relationship between the men as evidenced by he incident involving Miss Gandarias would clearly assume relevance. It could be properly taken into account by the jury in their assessment of the degree of the likelihood that Beckett may have acted on his own or under the direction of the accused, the plausibility of the accused's version that he was so affected by heroin that he knew almost nothing of what took place over a period of many hours, and as providing support for the evidence of Beckett on a number of aspects.

It is, as I have indicated, apparent that at more than one level, the evidence of Miss Gandarias possesses considerable probative significance in this trial. It is also apparent that it is capable of having, and, indeed may very well have, an adverse prejudicial effect upon the accused.

Not only does the evidence of Miss Gandarias relate to the possible commission of very serious offences on a quite separate occasion, but crimes which have a special significance in the present context. There is a potential for the misuse of this evidence. This would include, but is certainly not confined to, the granting of undue weight to the propensity to engage in serious criminal behaviour involving violence and sexual abuse which it may be seen to disclose. It is clearly evidence which must be approached with the utmost care on this basis also.

I do not think that I need address the issue whether the evidence in question would have been admissible in accordance with the principles enunciated by the High Court in a number of cases over recent years, although I am reasonably satisfied that the tests laid down by the Court would have been satisfied. [See Harriman v. The Queen [1989] HCA 50; (1989) 167 C.L.R. 590; Pfennig v. The Queen [1995] HCA 7; (1995) 182 C.L.R. 461; Hoch v. The Queen [1988] HCA 50; (1988) 165 C.L.R. 292; Gipp v. The Queen [1998] H.C.A. 21; BRS v. The Queen [1997] HCA 47; (1997) 191 C.L.R. 275; see also R. v. Best (unreported, 23 July 1998, Court of Appeal (Vic.)).]

As mentioned earlier, there has been enacted in this State, a new provision, s.398A of the Crimes Act which reads:

"398A. (1) This section applies to proceedings for an indictable or summary offence.

(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).

(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.

(5) This section has effect despite any rule of law to the contrary."

I am mindful of the remarks made by Callaway, J.A. in R. v. Best (unreported, 23 July 1998) as to the proper approach to be adopted with respect to that section, including:

"The result is that s.398A adopts the English test of admissibility for all propensity evidence and questions of collusion and unconscious influence are left to the jury. I need not rely on the Attorney's express reference to R. v. H. in the second reading speech in order to reach that conclusion. It is entirely consonant with the common law as understood in Australia to leave the reliability of evidence to a jury. They are able, and in some cases better qualified, than a judge to assess the weight of an argument that evidence has been concocted or is the product of unconscious influence. Compare Rozenes v. Beljajev [1995] VicRp 34; [1995] 1 V.R. 533 especially at p.553 lines 40-44 and R. v. H. at pp.613-614. That is also a good deal fairer to the witnesses, whether the issue is determined on the basis of the depositions or after a voir dire. Compare Hoch v. R. at p.297 and R. v. H. at pp.616-617. Parliament must be taken to have rejected, not wholly but pro tanto, the analogy with the voluntariness of confessional evidence. See R. v. H. at p. 620 and R. v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133 at p.152; and compare Hoch v. R. at p.304. ... The probative value of propensity evidence depends on the kind of propensity evidence that it is. Similar fact evidence may have probative value for the reasons mentioned in Hoch v. R. at p.295. Relationship evidence may have probative value for quite different reasons. See, for example, O'Leary v. R. [1946] HCA 44; (1946) 73 C.L.R. 566 at p.577 and Wilson v. R. [1970] HCA 17; (1970) 123 C.L.R. 334 at p.344. The risk of prejudice also varies greatly from one kind of propensity evidence to another. The test in s.398A(2) is flexible. It applies whatever the reason that gives the evidence its probative value and whatever the nature of the prejudice that is apprehended. The flexibility of the test in sub-s.(2) means that, properly applied, it will not greatly alter the conduct of criminal trials. Propensity evidence will be admissible whenever it is just to do so "in all the circumstances". Those circumstances will sometimes include the impossibility of conducting the trial in a sensible fashion unless the evidence is received. Its probative value is correspondingly high. Similar fact evidence will still be received with great caution because, as McHugh, J. pointed out in Pfennig's Case at p.530, the risk of prejudice is ordinarily at its highest in such cases.

The task of a trial Judge in determining whether in the circumstances of the case it would, in view of such a risk, be in the interests of justice for the evidence to be admitted into the trial is an extremely onerous one. On the one hand, there is a very important social value in bringing before the jury as much of the relevant and admissible material available which bears upon the questions to be determined by them as is reasonably practicable in the circumstances, so the ultimate decision is based in what might be described as the "real world" and on a "real" factual matrix rather than some sanitised and artificial construct which excludes evidence probative of the actual dynamics of the situation; on the other hand, there is a potential that the jury may be diverted from the proper performance of their duty by the introduction of prejudicial material, one which must be approached with very considerable caution indeed.

Essentially, and always, courts must struggle to ensure that the trials which are conducted in them are fair. This notion of fairness is a multifaceted one which takes into account the interests of not only the accused and the prosecution, but of the wider society, the need to ensure that the verdicts at which juries arrive are properly based on evidence and are not contaminated by prejudice, and that the integrity of the system of justice upon which we depend is protected. It is in that context and against that background that I have ultimately reached the conclusion that the evidence can be admitted in this trial. I consider that the risk of prejudice can be addressed by appropriate instructions being given to the jury.

SIMILARITIES BETWEEN GANDARIAS INCIDENT AND PRESENT INCIDENT

2. Away from Yass (a long distance from normal place of residence).

4. Girls placed in rear seat (rear door locks not opening).

* Beckett and Camilleri both shooting each other up during the Lauren and

Note the use of the drug "Speed" both according to Gandarias and Beckett.

12. Camilleri producing his knife first on both occasions.

14. Camilleri saying - "Give us a head job properly" - not to use teeth.

16. Camilleri telling girl to get out of the car, take her clothes off.

17. Both Beckett and Camilleri participating in rapes.

18. Camilleri's dick - comment being too big for Gandarias' anus - being too big for Lauren's vagina (virgin).

19. Girls allowed to get dressed after first rapes.

20. Driving round different areas, often quite aimlessly -

* With Lauren and Nichole - going down to Eden to see if boat moored there.

21. Unusual features of repeated rapes at different sites, many miles apart over a lengthy period of time.

22. Gandarias and girls both told to keep their heads down.

23. Each rape scene mainly off the beaten track, up some dirt road or back way.

24. Demand for oral sex by Camilleri in back seat while Beckett driving car and whilst car driving along - Camilleri becoming more aggressive - slapping and hitting back of Gandarias' head - hitting Gandarias hard - hitting her hard for 10-15 minutes.

Compare the 30 times or so of hitting girls' head back of car whilst driving along.

25. Threat of knife and killing to have sex (or to be stabbed).

26. Threat to tie up Gandarias back of car, drag along - girls being tied up.

27. Camilleri giving Gandarias some clothes to put on - similarly with girls.

28. Further use of drugs - Speed, second time - second shot being given by Gandarias (see p.189).

29. Continued statements by Camilleri during oral sex for the girls not to use their teeth.

30. Ability to have sex by both men on numerous occasions throughout the night.

31. Car driven many hundreds of kilometres away from initial abduction - Gandarias from Canberra to where she saw a sign almost from Sydney to Campbelltown.

32. The time and duration of assaults remarkably similar - approximately 12 hour period.

34. The young age of girls abducted - Gandarias 19; Lauren and Nichole 14 and 16.

36. Peculiar nature of the hitting - to back of the head only, not to remainder of body or parts of body.

CROWN'S OUTLINE OF ARGUMENT RE ADMISSIBILITY OF GANDARIAS EVIDENCE

1. The common law position in Australia was definitively stated by the High Court in Pfennig. The High Court confirmed that propensity evidence is only admissible if its probative value outweighs its prejudicial effect. However, in undertaking the comparison between the probative force and the prejudicial effect, Pfennig required the trial judge to apply the very strict circumstantial evidence test. The evidence would be admissible only if there was no reasonable view of the evidence consistent with innocence, for otherwise its probative value could not transcend its prejudicial effect.

2. However, in England the trial judge must do no more than make a value judgment as to whether the interests of justice require the admission of the propensity evidence notwithstanding the risk of prejudice. See DPP v P (1991) 2 A.C. 447.

3. Section 398A of the Crimes Act 1958 has adopted the English test of admissibility, and constitutes a significant departure from the common law approach in Australia: see The Queen v Best Vic. CCA unreported, 23 July 1998. Accordingly, this more flexible criterion of admissibility now applies in Victoria. That being so, a value judgment must be made as to whether in all the circumstances it is just to admit the Gandarias evidence despite any prejudicial effect it may have upon the accused Camilleri. Of course such a value judgment will still largely be determined by the probative force of the evidence sought to be led.

4. The Crown seeks to have admitted the evidence relating to the Gandarias incident as propensity evidence pursuant to section 398A.

5_. "Propensity evidence"_ referred to in sub-section 398A(2) is evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged: Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at pp.464-5 per Mason CJ, Deane and Dawson JJ; Best at p.5 per Callaway JA.

6. That being so, the Gandarias evidence is propensity evidence within the meaning of sub-section (2) and as such is admissible pursuant to that sub-section "if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence."

7. Whilst it is not clear in the Statute, the Crown concedes that it bears the onus of establishing that the evidence ought to be admitted notwithstanding its prejudicial effect.

A. It permits the inference that Camilleri played the role attributed to him by Beckett.

B. It rebuts the defence that Camilleri was asleep throughout the present incident.

C. It goes to the relationship between Camilleri and Beckett.

D. It goes to Camilleri's knowledge of the likely consequences or outcomes in the present matter.

E. It affords an explanation for the words and directions used by Camilleri in the present matter.

A. PERMITS INFERENCE THAT CAMILLERI PLAY ROLE ATTRIBUTED TO HIM BY BECKETT

1. If a jury accepts the Gandarias account, they would be entitled to reason that the Bega incident has all the hallmarks of a Camilleri/Beckett joint adventure. When taken in conjunction with the other evidence in the case (such as Camilleri's seminal stains on Lauren's shirt, his admitted presence throughout the journey and at the scene of the killings, the proximity in time between the Gandarias incident and the Bega incident (21 days), and Camilleri's subsequent role in the destruction of evidence) as a matter of common sense and experience it points with great force to the Bega incident having been undertaken jointly by Camilleri and Beckett. It readily permits the inference that Mr Camilleri played the same active role in the events involving Lauren and Nichole as he did in the Gandarias incident. That is, the evidence makes it more probable that Camilleri played the role attributed to him by Beckett.

2. As to Camilleri's role in the Gandarias incident, the evidence discloses, as a minimum, that he:

b) drove the car away upon Gandarias being picked up;

c) pulled a knife on Gandarias and threatened her with it;

d) orally, anally and vaginally raped Gandarias on multiple occasions at multiple sites great distances apart;

f) actively participated in holding her captive for 12 hours.

3. There are underlying similarities between the two incidents.

4. Suffice to briefly state that like in the Gandarias incident, both Camilleri and Beckett were together in the car when the girls were picked. Like in the Gandarias incident, both Camilleri and Beckett were together in the car throughout the Bega incident. Like in the Gandarias incident, the Bega ordeal occurred in the Camilleri's Ford sedan. Like in the Gandarias incident, the victims were held captive for many hours. Like in the Gandarias incident, the victims were unusually transported many hundreds of kilometres from the original point of boarding. Like in the Gandarias incident, the vehicle stopped at numerous sites during the journey, many of which were dirt tracks. Like in the Gandarias incident, the victims were repeatedly raped.

5. It has to be remembered that as the Gandarias evidence leads to the inference that Camilleri was actively involved in the rapes of the two girls, it of course provides Camilleri with a strong motive of at least wanting the girls killed.

6. Additionally, the inference that he raped them and therefore had a motive to kill them (and by inference was present, awake and alert in the car over such a long period of time) permits the further inference that he actively participated in the killings.

7. In Rosemary West's case (1996) 2 Cr App R 374, where similar fact evidence of a participation in the sexual conduct against victims was led, the Court of Appeal said that this directly created an inference that they both participated not only in the sexual activities but that they also both participated in the killings.

"the similar fact evidence of the four witnesses demonstrated the Applicant was an energetic and committed participator, together with her husband, in the acts of sexual violence ... in short, this evidence showed the Applicant's role in the acts of violence and sexual abuse were certainly no less active than that of her husband. That, in turn, permitted the inference from the totality of the evidence (of which the similar fact evidence was an important part) that she too must have also participated with him in the killings." (emphasis added)

9. By way of comment, it is not to the point that Gandarias lived to tell her story. In some respects the fact that Gandarias escaped is very similar to Pfennig. There the evidence of "H", who escaped, was found to have been properly admissible in support of the prosecution of the murder of Michael Black. See also the Rosemary West case on this point.

1. The Gandarias incident also shows the relationship between Camilleri and Beckett. This is relevant to -

(i) Beckett's assertion that he killed (murdered) the girls on Camilleri's say so or at his direction;

(ii) The unlikelihood of Beckett suddenly, on a frolic of his own, in the circumstances of this case killing the girls without Camilleri's support and direction.

2. One can distill at least the following essential facts from the Gandarias account which bear upon the relationship between Beckett and Camilleri:

a) Once lured into the car, it was Camilleri and not Beckett who drove away;

b) It was Camilleri and not Beckett who launched and initiated the initial attack by pulling a knife on Gandarias;

c) It was Camilleri and not Beckett who first made sexual demands upon Gandarias and who first raped her. Beckett had to wait his turn;

d) That Camilleri unquestionably sexually assaulted Gandarias on many more occasions than Beckett;

e) It was Camilleri and not Beckett who exercised control over Gandarias throughout the entire ordeal -

* with the knife initially (p.185) and throughout the ordeal (pp.188-9)

* when out of the car at the apartments held her hand (p.188)

* told Gandarias to co-operate and threatened to hit her

* whilst Beckett was purchasing some lubricant, Camilleri restrained Gandarias in the back seat by holding the back of her neck and by holding the knife to her ribs (at this time he threatened to kill her if she tried to move (p.190).

f) Camilleri was the only one who was physically violent towards Gandarias;

g) that Camilleri exercised control over Beckett throughout the ordeal by giving certain directions to Beckett.

3. This relationship insight is provided of course from a different source than Beckett, namely Rosemary Gandarias.

4. Evidence of relationship is plainly a legitimate basis for the admission of propensity evidence; Harriman v R [1989] HCA 50; (1989) 167 CLR 590.

1. For the reasons already advanced the evidence is admissible independently of the conduct of the defence. The admissibility of propensity evidence does not depend upon the nature of defence - Harriman.

2. Nevertheless propensity evidence may be led to rebut a defence open to the accused. The Gandarias incident directly rebuts the defence raised in Camilleri's second Record of Interview.

3. In his first Record of Interview (dated 6 November 1997) Camilleri made denials of ever having known or picked up the girls at all.

4. In his second Record of Interview (dated 12 November 1997) Camilleri said that, whilst he picked up the girls, he was however asleep for most of the trip - that he was unaware of any raping of the girls, of any assaulting of the girls and any murdering of the girls - that he was passive (asleep) throughout the whole incident.

In particular, see Q.26 and 27 (pp.1673-1674). See also Q.310-317 (p.1711).

5. It is the Crown's contention that Camilleri's active and dominant role in the abduction of Gandarias over some 12 hours and his energetic role in her sexual and physical abuse makes it objectively improbable that he played a passive (asleep) role in the Bega incident. It therefore rebuts the defence advanced by Camilleri in his 2nd record of interview.

D. THE KNOWLEDGE OF LIKELY OUTCOMES IN THE PRESENT SITUATION

1. The Crown case in this matter will be put in three main ways.

2. First, Camilleri procured the girls' deaths. He instigated their deaths by asking and directing Beckett that they be killed.

3. Secondly (very similar to 1), that they acted in concert. That is, that they had a plan - an understanding - to kill the girls. Camilleri participated in the plan by tying them up, by taking them to the creek bed, by getting the girls to wash themselves out, by re-tying the girls, and giving directions as to how the girls were to be killed. (It is not anticipated that the case will be put on aiding and abetting, but rather the Crown will be maintaining that at all times Camilleri was an active principal.)

4. If of course the jury accept either of these first two propositions, beyond reasonable doubt, then Camilleri is guilty of murder.

5. There is, however, a third way that the Crown will be putting its case, namely common purpose. In the circumstances of this case there is a possibility that:

a) the jury might conclude that whilst there was an agreement or understanding to abduct, hold captive and rape Lauren and Nichole, there was no clear joint understanding to kill them;

b) the defence might advance such an argument. ie "I am a rapist, not a murderer";

6. The Crown says that the Gandarias incident provides relevant material as to the state of mind of Camilleri as to what consequences might be upon the possible rape of a girl or girls in circumstances.

7. As to common purpose, see Johns v R [1980] HCA 3; (1980) 143 CLR 108; McAuliffe v R [1995] HCA 37; (1995) 183 CLR 108.

8. As to the use of propensity evidence to prove a state of mind, see R v G.A.S (1998) 3 VR 862 at 884 per Batt J.A.

E. EXPLANATION OF WORDS/ DIRECTIONS USED BY CAMILLER1

1. The Gandarias and Bega incidents are factually linked, even though they constitute separate transactions.

2. The Gandarias evidence affords an explanation of words and directions used by Camilleri in the present matter. At p.276 of the depositions -

"I drove down the highway and just before Cann River Les woke up. He wanted to know where we were. I told him we were in Victoria and nearly to Orbost. Les cracked the shits and was abusing me. He was saying he wanted to go to Sydney. He kept saying 'the bridge'. I took this to mean he wanted to throw the girls off the bridge because he'd spoken about this before. There are some bridges on the way to Sydney on the Hume Highway which have great drops. "

3. It is submitted the Gandarias incident is relevant to explaining the meaning of these words and why they were given.

a) each of the five ways in which the Crown submits the evidence is relevant would of themselves justify the reception of the Gandarias evidence. That is, they stand alone.

b) in combination, they present a most powerful case for its admission.

1. Because of the inevitable high degree of prejudice that arises in matters of propensity evidence real caution must be shown before such evidence is admitted. Accordingly, the Crown in seeking to lead the evidence should state the purpose for its admission unequivocally. The Crown ought make it unambiguously clear what is said to be the probative value of the evidence.

2. The brief, ambiguous and vague outline provided by the Crown is of little or no value. The outline of argument set out below is the best response that can be made in the circumstances but it may be that having not guessed accurately enough what it is that the Crown contends to justify the leading of the evidence, further matters may need to be canvassed and further time allowed.

3. The fact that the purpose for seeking to lead the evidence has been stated so vaguely and ambiguously strongly suggests the weakness of the Crown's position.

4. The test of admissibility contained in s398A (2) is essentially a question of probative value weighed against impermissible prejudice. In this respect the law has not altered and indeed given the inherent "flexibility" of this balancing task it was predicted that the conduct of criminal trials would not alter greatly as a result of s398A(2).

Best [1998] VICSC 125 p 10, 14

5. That being so, the reluctance of the courts and the great caution they have exercised in the past, before acceding to a submission that propensity evidence be led, is not lessened by the legislation.

the probative value of the evidence must be so compelling that it remains just in all the circumstances to admit the evidence despite its prejudicial character.

Best [1998] VICSC 125 p 10, 14.

Gipp 155 ALR 15 at para 10 per Gaudron, para 141 per Kirby and 174-6 per Callinan

Pfennig[1995] HCA 7; , (1995) 182 CLR 461 at 480-1, 483-4, 487-8, 500-6, 512-3

B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 617-8

Harriman [1989] HCA 50; (1989) 167 CLR 590 at 594,608,633

DPP v P [1991] 2 AC 447 at 460.

7. What is important in the analysis of s398A(2) and the test as articulated above, is the interpretation of "just in all the circumstances." It follows that in assessing the probative value of the evidence against the prejudice created, it must be shown to be no less than just in all the circumstances before the evidence is to be admitted. This will be analysed in detail below. However, as a general proposition it is clear that the test has a high threshold. It must be an affront to common sense and artificial to keep the evidence from the jury.

8. The test for the Crown is that the probative strength of the evidence renders improbable any other proposition other than the one the Crown contends for.

9. A more detailed examination of what is required for the evidence to be admitted and for the trial to remain just in all the circumstances gives rise to four concepts, questions or considerations.

(b) What is the fact in issue sought to be proved by the evidence?

(d) What are the potential consequences for both parties should the evidence be admitted or excluded?

10. (a) Prejudice: In this case the prejudicial impact of the evidence sought to be lead is so high as to be fairly described as overwhelming. The more prejudicial the material the greater the likelihood of the jury acting upon a "forbidden chain of reasoning".

Donnini [1972] HCA 71; 1972 128 CLR 114 at 123.

11. Accordingly, for the trial to remain just in all the circumstances, the probative force of the evidence sought to be lead must be compelling. This evidence is not.

12. What is the relevance of the Gandarias evidence? Do the Crown contend that that proves that on that occasion:

(i) Camilleri and Beckett together committed a series of sexual assaults on Gandarias and/or

(ii) That those sexual assaults were committed in a particular identifiable manner and/or

(iii) That the joint nature and/or manner in which the sexual assaults were committed on Gandarias is probative of sexual assaults having been committed on this occasion and/or

(iv) Camilleri and Beckett having committed sexual assaults on that occasion are both likely to have committed sexual assaults on this occasion (is this what the Crown mean by item B in their outline?) and/or

(v) Whatever Beckett himself did on that occasion, he did at the instigation or direction of Camilleri and/or

(vi) That Camilleri and Beckett had a plan to kill Gandarias to avoid detection or for some other and what reason?

13. (b) Fact in Issue: In accordance with s398A(2) the evidence must be relevant to facts in issue. Given the high prejudice it ought be established that the evidence goes to a critical fact in issue. Anything less reduces its probative value.

14. The central fact in issue in this trial is whether Camilleri counselled Beckett to commit murder. It is not a fact in issue that Beckett committed murder. The central issue is whether Camilleri gave orders for murder not if or why Beckett may have acted on the alleged orders.

15. The contention that the evidence is probative relies on inherently faulty logic. It appears that the contention is that the Gandarias evidence establishes a particular relationship between Camilleri and Beckett on that occasion. This evidence does not go to whether Camilleri counselled Beckett on this occasion.

16. In other words, the contention relies upon faulty reasoning of a bootstraps kind, in that in order to prove that the counselling occurred on this occasion the Crown first assumes that the counselling did occur because Beckett committed murder and he would not have done so without being ordered to and secondly that because he did commit murder he must have done so because of an alleged particular relationship between himself and Camilleri said to be shown in the Gandarias evidence. Therefore because Beckett committed murder the counselling is proved.

17. The evidence regarding Gandarias is simply not probative of the critical issue as to whether or not the order was given. At best the evidence of relationship goes to the issue that if an order to kill was given by Camilleri to Beckett that Beckett may have acted on it. That assumes the orders were given.

18. If it is conceded that the evidence of the relationship contended for does not go to the central fact in issue, but rather to other matters that in themselves permit an inference to be drawn, for example that because Beckett committed murder Camilleri must have been involved, then it is clear enough that the probative value of the evidence is low and that it is neither compelling nor directly relevant to the central fact in issue.

19. (c) The proposition the evidence seeks to prove: There are two parts to be considered.

(i) The assertion by the Crown seems to be that there is a particular relationship between Beckett and Camilleri. That it is said that Beckett would kill at the direction of Camilleri by reason of the alleged dominance of Camilleri's personality. There is nothing in the evidence from which to draw such a conclusion. To be probative to the requisite degree, the evidence ought to be compelling by establishing such a relationship. This proposition does not offend s398A(3). That is, if by assuming that the Gandarias evidence is true, (as the sub-section requires), it does not follow that no serious issue can be taken with the particular interpretation the Crown would seek to put on the evidence. That interpretation ought be obvious and compelling, and it is not.

(ii) If the evidence established no more than a relationship between Beckett and Camilleri that they of committing a series of sexual assaults together, that fact it is not probative of the issue as to whether Camilleri gave Beckett an order to kill or that Camilleri was in any way party to the killings. There is no evidence from Gandarias of any order to kill her.

20. (d) Consequences of admission or exclusion: The term "just in all the circumstances" ought not be interpreted narrowly. As referred to above it ought operate "flexibly". The consequences of the highly prejudicial evidence being used improperly by the jury would be catastrophic for Camilleri in this case.

21. The removal of the Gandarias evidence from the Crown case would not be such as to be an affront to common sense. Gandarias evidence is not a necessary part of the narrative. No artificiality could arise from the exclusion of the evidence.

22. The fact that the allegations are unproven gives to some unnecessary and unfair predicaments for Camilleri. It creates a trial within a trial which would create such unfairness to Camilleri that his trial could not be just in all the circumstances. Unfairness would be created in the following ways:

(ii) If Camilleri were to give evidence he would be forced to risk self-incrimination on the Gandarias matter, and therefore his right to give evidence about the murder allegations would be unjustly fettered. This could not be just in all the circumstances. It renders the trial unfair. A discretion arises to exclude any evidence in order to secure a fair trial:

R v Peirce [1992] VicRp 17; [1992] 1 VR 273 at 274

Rozenes v Beljajev [1995] VicRp 34; (1995) 1 VR 533 at 549.

(iii) The jury will be unduly and unfairly distracted from the central issue raised on this presentment by this evidence of serious criminality upon which they cannot adjudicate. That is unlike many other trials where propensity evidence is led where the jury will determine all matters of criminality, and in doing so are permitted to use the evidence of one trial on the trial of other counts, or by seeing the evidence as essential part of the relationship between a complainant and Camilleri rather than between an alleged co- offender and Camilleri.

(iv) The evidence would unnecessarily and unfairly complicate the task of the jury who would have to follow directions that the evidence of the trial within the trial can only be used certain limited ways. Expecting such complexities to be understood and implemented in the context of such a highly charged matter is unrealistic:

R v Bullen unreported Court of Appeal 23 July 1998 p14.

(v) The evidence is so prejudicial that any direction could not be capable of avoiding an unfair trial:

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