R v Gould [2007] VSC 421

2 The issue is of more than passing significance, because the date of commission of the offence will govern what law will be applicable if the issue of self-defence is raised in the trial.

3 In relation to any offence of murder committed on or after 23 November 2005, Part 1 Division 1 Sub Division 1AA of the Crimes Act 1958 will apply to the case. That is of importance because s9AC defines self-defence and s9AD raises the alternative offence of defensive homicide. Those sections create in Victoria a statutory regime somewhat similar to that which existed at common law prior to Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645. Mr J. Saunders of counsel who appeared for the accused has indicated that all matters are in issue. Whether self-defence will be left to the jury will depend upon the evidence. It is clear that on 20 November 2005 there was hostility shown by the deceased to the accused and that when the deceased was last seen, he said that he was heading back to the accused's house to have it out with him.

4 The deceased died as the result of one stab wound to the back of the shoulder. The knife "nicked" the axillary artery adjacent to the heart. The accused died as a result of injury. Multiple organ failure resulted from blood loss. The injury itself was an unusual one and had never been seen by the pathologist, Dr Malcolm Dodd in a single stab wound case. In the circumstances, the question of what was intended by the person who stabbed the deceased will be open. That being so, it will be necessary for manslaughter to be left to the jury. Self-defence for manslaughter is now in accordance with a statutory formulation in s9AE of the Act. That formulation is in accordance with R v. Zecevic.

5 For the purposes of these rulings the facts of the case may be stated briefly. On Sunday 20 November 2005 the deceased was drinking with a number of friends at 34A Aberdeen Road, Macleod. At about midday the group was joined by the accused and his friend, Slavko Monev.

6 The accused and the deceased had known one another since primary school. At some stage the group was asked to leave the house. The accused, the deceased, Lance Venn, Robert Venn and Slavko Monev went to the accused's place at 1 Portree Street, Macleod. The deceased had been drinking all day and was hostile to the group, accusing the men of having a sexual relationship with Amy Fowler and of mocking him. At the accused's house, the accused's son Jesse was at home but did not join the group. As the deceased consumed more alcohol he became increasingly aggressive, particularly towards the accused, and particularly with reference to Amy Fowler. The accused responded verbally. The accused asked Lance Venn to remove the deceased from the house about six times as he was sick of the abuse. Lance Venn took the accused home at about 9.30 pm.

7 Back at 34A Aberdeen Road, the deceased was behaving irrationally. Lance Venn went to bed and the deceased started to abuse Lonnie Davis, who was at the house, saying he wanted to fight him. The deceased had also smoked cannabis that evening.

8 At some time after 10.00 p.m. the deceased left the house saying that he was going back to the accused's house. He did not say why, although earlier he had said to Lance Venn that he wanted to "sort Darren out". When the deceased left Aberdeen Road, Davis believes he took a couple of VB cans with him and nothing else. No knives were found to be missing from Aberdeen Road.

9 The deceased was next seen at the roundabout at the corner of Portree Street and Wungan Street, Macleod at about 11.15 p.m. He was stumbling about and came eventually to the unit of Michael Snare and Arnia Elderton at 2/77 Wungan Street, Macleod. He said he had been stabbed. (He said he had been stabbed by "Andrew" across the road round the corner). Snare rang 000 at 11.20 p.m. The deceased was taken to hospital where he died on 25 November 2005. There was a trail of blood which led back to 1 Portree Street, Macleod.

10 At that time the accused was on bail for a number of offences, the most serious of which was intentionally causing serious injury. Those charges arose out of the stabbing of a train driver in March 2005. After a contested committal on 21 June 2005, it was a condition of the accused's bail that he report to the Heidelberg Police Station between 6.00 a.m. and 9.00 p.m. daily.

11 It would appear that the accused was less than assiduous in relation to that reporting condition, having failed to report on more than 50 occasions between June 2005 and November 2005. After he reported on 19 November 2005, the accused did not report again. He was arrested on Tuesday 28 February 2006 and charged with murder.

12 The accused had been living at 1 Portree Street, Macleod on 20 November 2005. He gave that as his address at the time of his arrest. After 20 November 2005, the accused did not reside at home, but went to the house of a friend, Tracey Brennan, at 63 Wungan Street, Macleod. (That is only about 120 metres away from 1 Portree Street). Later he went to live with another female friend in Thomastown.

13 Mr Maitland Lincoln, who appeared on behalf of the Crown, submitted that the post offence conduct of the accused in not continuing to report on bail and otherwise keeping out of the way of the police, is capable of being used as an implied admission of guilt of the crime of murder. (See R v Ciantar [2006] VSCA 263).

14 The Crown sought to rely upon evidence that the accused had made a number of telephone calls, which had been intercepted and recorded pursuant to warrant, which showed that he was keeping out the way and deliberately not reporting on bail. There are further considerations, it is put by the Crown, that show that the accused was discussing the case with others and encouraging them not to cooperate with the police. It was submitted that such conduct would also be post offence conduct capable of being an implied admission.

15 Mr Saunders submitted that the material relating to bail introduced material into the trial which was unduly prejudicial. It should be noted, however, that this was not one of those cases where there was some other "embarrassing" explanation which the accused could only reveal at great prejudice to his case. As the matter stands, no explanation has been advanced. Matters such as panic, fear, concern about being falsely charged would all have to be considered by a jury. The question is really whether or not the fact that the accused was on bail is of itself prejudicial enough to warrant the exclusion of evidence which is probative. Mr Saunders has also relied upon the general discretion to exclude evidence, the admission of which would render a trial unfair.

16 There are several ways of approaching the problem. The Crown submit that it is quite a serious matter not to report on bail. The failure to report is post offence conduct, which, coupled with generally keeping out of the way, does amount to an implied admission; i.e. it would be open to the jury to conclude, after a proper consideration of the Edwards criteria, that the conduct did amount to an implied admission of murder. I am satisfied that on the authorities it could be used for such a purpose (see Ciantar (supra) and R v Jakimov [2007] VSCA 9).

17 The question arises whether or not I should exercise my discretion to exclude the evidence either because its prejudicial value outweighs its probative value or whether it be unfair in all the circumstances to admit it.

18 It is true that revealing that the accused was on bail is prejudicial. It means, however, no more than the fact that the accused has been charged with a criminal offence. It does not reveal what offence and it makes no assumption of guilt. It is a matter about which clear and rational direction may be given. The jury would need to be instructed that no inference adverse to the accused could be drawn merely from the fact that he happened to be on bail with a reporting condition. It seems to me that apart from the fact that the accused was on bail with a reporting condition and that he did not report after 19 November 2005, there is no additional prejudice arising from those two facts. It could be made clear that there is nothing unusual about a reporting condition.

19 The decision by the accused not to report on bail is one which a jury might regard as serious when considering post offence conduct. It cannot be said to have little or only slight probative value in the circumstances. I would not exercise my discretion to exclude the evidence subject to careful directions which I have foreshadowed.

20 That leaves, in this category, the evidence of the recorded telephone calls. The prosecutor nominated a total of 12 calls on which he sought to rely. In argument he abandoned one call, number 114, and did not press calls 558, 563 and 565. I regard his decision in relation to those calls as sound and do not regard the content of those calls as taking the Crown case any further.

21 One call, number 113, is a different category and will need to be considered separately.

22 The other calls, 60, 99, 117, 331, 484, 498, 506, 509 and 513, contained various passages which might be capable of being interpreted as indicating that the accused was keeping out of the way and that he was prepared to interfere with the police investigations. In my view, all of those calls, with the exception of call 99, are not sufficiently probative to warrant their introduction into evidence. Calls 506, 509 and 513 have been characterised as showing an attempt to interfere with the police investigation. It is true that the accused showed no inclination to assist the police, but I am not satisfied that those calls go far enough to give rise to the inference that they constitute post offence conduct capable of being an implied admission. The calls do not of themselves represent an attempt to interfere with the police investigation.

23 Call 99, which was made on 14 February 2006, a transcript of which appears at p.421 of the depositions, was a call between the accused and one Kent Henderson. In that call the following exchange took place at p.422:

D. Gould: Just fuckin' walkin' down to the station.

K. Henderson: (Laughs) Well what are you fuckin' doin'?

D. Gould: I can but I can't, I'm not ready to go anywhere yet, mate.

D. Gould: If I go to sign on - if I go to sign on they'll fuckin' probably fuckin' plow me up.

D. Gould: Yeah, I know, but fuckin' if - they haven't been around I don't know.

24 That passage is relevant in that it is part of the material which the Crown could use to show that the accused was deliberately not reporting on bail and was keeping out of the way of the police. It touches the question that he was on bail but I have dealt with that matter earlier and do not regard the prejudicial effect of it as outweighing its probative value.

25 The next matter which falls for consideration is part of call 113 which in the Crown's submission amounts to an admission. It is a critical piece of the Crown case because without it, it is almost impossible for the Crown to make a causal connection between the accused and the wound suffered by the deceased.

26 The transcript of call 113 appears at p.440 of the depositions.

27 It is a call between the accused and Daniel Tavo on 14 February 2006. The passage reads:

"D. Gould: Fuckin' hell. Some -, yeah, somethin' else has happened and I just let me phone fuckin' - thing.

D. Gould: And I can't - like 'cos, oh, I'm not fuckin' getting' locked up again sort of thing.

D. Tavo: I'm like (inaudible) locked up and like - fuck.

D. Gould: I'm just waitin' for them to come around, but it's another bad thing what I did. Like do you remember what I - when - when - I seen you - when we were locked up what I said I did?

D. Gould: The train thing. No, but it has somethin' like I've shived another cunt sort of thing.

D. Gould: Fuck was you out - was - was - was you out fuckin' like flat out, no parole or anything?

D. Tavo: Yeah, yeah, I've got to see 'em once a week.

28 The probative value of the evidence is clear. If accepted as truthful by the jury, it is capable of being an admission to the stabbing and is also evidence that the reason that the accused is keeping out of the way of the police is because of the stabbing.

29 There are prejudicial aspects of the evidence. They are the statements -

(i) "I'm not getting locked up again sort of thing".

(iii) "Remember what I - when - when I seen you - when we were locked up what I said I did?"

(iv) "The train thing. No, but it was something like. I've shived another cunt sort of thing".

30 From that material it might occur to some or most jurors that the accused had been in trouble previously and had been to gaol. The reference to the "train thing" is a reference to the incident for which the accused was on bail and did involve the use of an instrument (an umbrella).

31 From the Crown's point of view the importance of the evidence is around the words "It's a bad thing that I done and I've shived a cunt sort of thing". The use of "another" in those two contexts is not particularly relevant to the Crown. In any event, the word "another" does not necessarily carry its correct grammatical sense when used in the phrase "another cunt", it may mean a second occasion, but it might, however, be a turn of language.

32 It is argued by Mr Saunders that the evidence should be excluded in the exercise of my discretion on the basis that the prejudicial effect of the evidence outweighs its probative value (the so-called Christie discretion). He further submits that even if I declined to exercise that discretion, I should exercise the overriding discretion to exclude evidence which would render the trial of the accused unfair. (R v Swaffield, R v Pavic [1998] HCA 1; (1998) 192 CLR 159).

33 Whether they are properly described as two separate discretions is not clear. The two discretions look at "the risk that an accused may be improperly convicted" (R v Pavic (supra) Toohey, Gaudron and Gummow JJ). Put another way, would the admission of this evidence give rise to a miscarriage of justice?

34 In this case there can be no criticism of the way in which the confessional material was obtained. The telephone call was recorded in accordance with an interception authorised by warrant of the Federal Magistrates' Court. No question of Tavo acting on behalf of the police arises. The confession is made without prompting on the initiative of the accused. No question of reliability arises from the circumstances of the making of the confession.

35 The other matter to be observed is that the material which is prejudicial, i.e. the background of the accused said by Mr Saunders to be evidence of propensity is in no way relied upon by the Crown, that is the prejudicial matters are incidental.

36 On the other hand, the evidence of the confession is highly probative. I disregard for these purposes that there would be little or no Crown case without it.

37 It is very hard to see how the unfairness discretion would operate in this case. Fairness, when considered separately, has almost always turned on the circumstances of the obtaining of the confession. It has almost always been applied to the conduct of the investigating authorities. Even if the conduct of the authorities is not a prerequisite to the operation of the discretion, it would still require something about the circumstances touching the obtaining of the confession before this aspect of unfairness could arise (see R v Loban [2000] SASC 48; (2002) 112 A Crim R 357).

38 After R v Swaffield and R v Pavic (supra) it is not clear whether there are now distinct discretions. It may be that the so-called "Christie" discretion has now been absorbed into the concept of unfairness. There is nothing anathema about characterising the exercise of discretion to exclude evidence where its prejudicial value exceeded its probative value as rendering a trial, in which such evidence was admitted, unfair.

39 In this case it is the existence of the prejudicial material associated with the admission to which Mr Saunders objects. The additional matter relied upon by Mr Saunders is that the admissions are made about 12 weeks after the stabbing. It is submitted that that fact undermines the probative value of the admission.

40 The material in the admission contains prejudicial material in the sense that it reveals the possible involvement of the accused in prior criminal conduct. The references probably have more meaning to those who know about the accused's history than to those who will hear this one reference.

41 This is a murder case. The probative value of the evidence is very high. The prejudicial value while present may be ameliorated in several ways. The references to not wanting to be locked up and having been locked up with Tavo can be easily removed. That leaves the use of the word "another" twice. I have already pointed out that at least one of those references may be incidental.

42 I have listened to the taped conversation. I have considered the submissions put to me and read the relevant authorities. It is open for a jury to find, as the matter stands, that the references are to this particular incident. The lapse of time does not significantly reduce the probative value. I have come to the conclusion that there is nothing so prejudicial about the material when compared to its probative value which would justify the exclusion of the material. Even if that no longer be the test, there is nothing in the admission of the evidence which would render the accused's trial unfair.

43 It follows that the conversation recorded as call 113 may be used in evidence. I direct that the passages referring to the accused being "locked up" not be led in evidence. When I foreshadowed the ruling with counsel I gave Mr Saunders the opportunity to discuss with Mr Lincoln whether any other words or phrases can be removed. In any event I intend to direct the jury that they may not use this admission for any purpose other than that for which it has been admitted. I will give a detailed propensity warning about the material.