R v Lambaditis

The Crown Case

1. It is sufficient for the purposes of the pre-trial issue to briefly refer to certain of the central facts.
2. At about 2:59am CCTV footage from Scruffy Murphy's Hotel recorded the accused, one of a group of males, speaking to security guards outside the hotel. They were refused entry. The group decided to go to Cheers Bar and started walking up Goulburn Street towards George Street, Sydney.
3. At about 3:02:20am the CCTV footage records the accused and his group walking past the deceased and Mr Heward. The accused is depicted on the CCTV looking back toward Scruffy Murphy's as they started walking past the deceased and Mr Heward.
4. The accused is alleged to have called out an offensive comment following which he turned and continued walking in the direction of George Street.
5. After he and his group walked past the deceased and Mr Heward the accused turned around at 3:02:26am and walked back to Mr Heward.
6. The accused is alleged to have hit Mr Heward with his right fist once to the chin at 3:02:29am without warning. This caused Mr Heward to stumble backwards and fall to the ground.
7. The Crown case is that the deceased, who was standing next to Mr Heward, stepped in and used his right hand to punch the accused once to the left-hand side of his head, just before Mr Heward fell to the ground. That blow caused the accused to take a couple of backward steps.
8. The deceased is then alleged to have taken a step towards the accused and kicked towards him with his right foot. The accused blocked the kick with both of his hands and took a backward step. At this time, Mr Heward was trying to get up off the ground.
9. The Crown case is that the accused threw a punch at the deceased with his right arm at 3:02:32am that narrowly missed the deceased. The deceased stumbled backwards a couple of steps before regaining his balance. The accused moved towards the deceased with his left arm extended towards the deceased before throwing a punch at the deceased with his right arm at 3:02:34am that connected with the front of the deceased's head. This caused the deceased to fall backwards onto the ground without stumbling, striking his head. The deceased did not move after falling to the ground. Witnesses are alleged to have heard a large crack or breaking noise.
10. At about 9:23am on Tuesday, 5 November 2013 life was pronounced extinct from the deceased.
11. The Crown case is that the accused intended to cause at least grievous bodily harm to the deceased when he struck him.

Proposed Evidence

1. The Crown proposes to call as a witness in its case Mr Walt Missingham. Mr Missingham provided a report (undated) having been requested by police to view the CCTV footage of the incident and to provide an opinion on whether or not boxing/martial arts training was being used by the accused in the incident.
2. The Crown tendered on the voir dire the following: 1. Crown Case Statement dated 26 September 2014. 2. The Statement of Mr Missingham. 3. The Statement of Christian O'Shea, an instructor with the Krav Maga Defence Institute (KMDI) ("the Institute") based in Surrey Hills, Sydney, dated 20 November 2013. 4. The Statement of Alex Trafton, a Senior Instructor with the KMDI dated 26 November 2013. This statement was directed to establishing that the accused had been enrolled with the Institute in December 2012 and that his membership was cancelled in June 2013. 5. The Statements of Jarrod Krafczyk, Operations Manager and Certified Instructor with the KMDI dated 2 and 4 March 2015 (as to the accused's enrolment in the Institute and relevant documentation concerning the same). 6. Various documents related to the accused's registration, attendance and departure from martial arts training at KMDI.

Crown Submissions

1. The Crown relied upon its written submissions dated 26 February 2015. The following "issues" were identified by the Crown: 1. Between December 2012 and May 2013 the accused is alleged to have undertaken training in Krav Maga, a martial arts course intended to provide an exponent with, amongst other things, fighting skills: Statements of Christian O'Shea and Alex Trafton. 2. The accused is alleged to have deployed martial arts skill when assaulting Mr Heward and Mr Rodrigues: Statement of Mr Missingham.
2. The Crown submission was that Messrs O'Shea, Trafton, Krafczyk and Missingham could give evidence relevant to the proceedings: s 56 Evidence Act 1995.
3. The Crown submitted that the relevance of the evidence lies in it establishing that the accused possessed martial skills and that:

• His training afforded him the confidence to confront alone two young men;
• His training afforded him the skill to counter the response of Mr Rodrigues before moving back in to deliver a forceful blow that appeared to knock the latter heavily to the ground;
• His training had taught him that the jaw was the vulnerable target during combat;
• When deploying his martial skill, he was aggressive contrary to the warnings of his trainer.

1. In the course of the Crown's Reply Submissions, the learned Crown Prosecutor was asked to identify which of the above dot-point matters were said to be specifically relevant to state of mind issues. In answer, the Crown submitted that the first two dot-points were relevant to the accused's state of mind.
2. The first was related to the fact of his "confidence" to attack his alleged victims whilst the second, the accused's asserted martial arts skill, it was submitted, was part of the "mindset" that the accused took into the confrontation: T 15:25-40.
3. Given that the evidence establishes that the Institute's course was directed towards training in defensive rather than attacking strategies, the learned Crown Prosecutor sought to establish relevance in stating: "… one man's defence is another man's offence insofar as once an attacker is disabled he is further disabled if he is delivered a blow which takes him out of the fight and in my submission that is precisely what the CCTV demonstrates: T 16:10-15.
4. Further, insofar as it was said that the accused had the claimed "proficiency" based on Mr Missingham's opinion evidence according to the Crown, the jury would be entitled to say "Well, he is someone who it may be safely inferred knew what he was doing in the fight". The submission continued: "… He appeared to handle himself in such a way that he not only protected himself from injury but he took not one but two men out of the confrontation. It is further open to the Crown to argue that with the arrival of indeed the second man, the deceased, in the confrontation, the Crown will argue to the jury that he elected to use his skill in such a way that he intended to do really serious harm to the second attacker in order to take him away as someone whom he had to fight: (T 16:25-35).
5. The learned Crown Prosecutor subsequently again emphasised that the Crown was entitled to have proved beyond reasonable doubt the fact that: "… being possessed of some proficiency, some skill out of the ordinary, because of his training … the jury is entitled to have before them an argument that he intended to cause really serious harm as a result of that superior skill that he has above and beyond someone who didn't undertake the training": (T 16:45-17:1).
6. Mr Ozen of counsel, on behalf of the accused, relied upon written submissions dated 5 March 2015 supplemented by his oral submissions. It was submitted that the evidence did not meet the threshold test for relevance. In the alternative should the Court consider there is relevance in the material, it was submitted that the evidence would not satisfy the test in s 79 of the Evidence Act which provides for an exception to the hearsay rule in respect of opinions based on specialised knowledge.
7. Even if the material was "relevant" and properly admissible as "expert opinion" then Mr Ozen submitted the evidence should not be admitted in the exercise of the court's discretion. Reliance was placed upon the provisions of ss 135 and 137 of the Evidence Act.

Submissions for the Accused on Relevance

1. It was submitted that the evidence of the proposed witnesses as to the accused's actual and perceived level of training are irrelevant.
2. It was submitted for the accused that: "Having regard to the 4 matters pleaded in the Crown's written submission, it is submitted that the evidence of these witnesses to the accused's actual, and perceived level of training, are irrelevant."
3. It was contended that it was unclear on the evidence as to the number of Krav Maga classes that the accused actually attended at the Institute. Even on the higher estimate of these attendances it was submitted that the evidence does not establish that the accused had attained a proficiency that would permit a qualification under the relevant grading system The accused had not satisfied the requirements for the first or easiest grading, "P1".
4. Accordingly, in those circumstances, it was submitted, it was clear, that the accused did not have any special or particular training at all. It was submitted that what Mr Ozen described as his "very low level of martial arts experience" is "not a relevant factor". It would not assist the jury in any way in respect of the real issues to be contested at the trial. Those issues included: 1. Whether the jury could exclude, beyond reasonable doubt, at the point the accused struck the deceased, causing him to fall and ultimately die, the reasonable possibility that the accused was acting in self-defence; and 2. Whether the jury could be satisfied beyond reasonable doubt that the accused intended to do at least grievous bodily harm to the deceased when he dealt with blow.
5. Nothing in Mr O'Shea's statement, it was submitted, would permit his evidence to be used as the basis for a finding the accused had the requisite state of mind for murder. A "beginner level training" in any martial arts, it was submitted, would not of itself, together with the CCTV footage, permit the jury to safely reason as to the accused's state of mind.
6. Additionally it was argued that there is nothing in Mr Missingham's report that was of assistance to the jury in determining the issues. Whether the accused is shown on the CCTV to have employed a classic "X-Block" was a question of fact for the jury who would see the CCTV footage. The witness's statement on that point would not assist the jury to make the determination.
7. Additionally, as to the block and the punches thrown by the accused, (which Mr Missingham said were classic defensive and offensive traits of "Karate" or "Tae Kwon Do" (or a derivative of them)) there was no evidence that the accused has had any relevant training in "Karate" or Tae Kwon Do or a derivative of them.
8. Whilst Mr Missingham concluded that the accused has had some martial arts training, he did not provide an opinion, it was submitted, as to the level of training in them or their derivatives.
9. It was also submitted that no expert would be able to give evidence as to the effect of the training on the accused in terms of the level of "confidence" he would have had in confronting two men.
10. The submission was that Mr Missingham's report simply describes what the jury could see in the CCTV footage themselves and attaches a label to it. It was submitted it did not add to the jury's ability to assess and weigh those matters for themselves at all.
11. Finally, as to the statements of Mr O'Shea and Mr Krafczyk their evidence established that the special characteristics of the training which the accused would have received was essentially defensive in nature and not the classic pattern or style of training utilised in Karate or Tae Kwon Do (for example, it involved training with respect to grabs, holds, weapons etc). There were not classic patterns utilised in more orthodox forms such as Karate or Tae Kwon Do.
12. It was conceded that each of the three witnesses relied upon by the Crown had the training that would qualify them as experts. However, it was submitted the evidence sought from them would not satisfy the test in s 79 of the Evidence Act. In this respect reference was made to the well-known principles enunciated in Makita Australia Pty Ltd v Sprowles [2001] 52 NSWLR 705 per Heydon JA at [85].
13. It was submitted that if matters relevant to the opinion are not made or identified explicitly it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge.
14. It was argued that the opinion that the actions of the accused as shown on the CCTV was indicative of someone that had "some" martial arts training was contradictory to the other evidence as to the nature of the training that the accused has had (essentially defensive strategies etc).
15. The description of the body movements as given by Mr Missingham, it was submitted, required no expertise. It was submitted that Mr Missingham's opinion was not expert opinion evidence that was admissible under s 79. There was no explanation, it was contended, that would enable a jury to differentiate what someone who has no martial arts training might do in the circumstances.

Discretionary Exclusion - Submissions for the Accused

1. The evidence, it was submitted, is of marginal probative value at best. It was contended that the purpose for which the Crown had indicated it would be used in its case were peripheral to the central issues in the trial and there was a real danger that the evidence may be misleading, confusing and result in undue waste of time.
2. The accused would be required to test the opinion and to establish that the training given to him can be shown as not having been extensive or substantial and that it would have little impact on his abilities at the time. It was submitted there was a danger that the jury would embark on an inquiry as to whether they think that level of training gives a person special abilities, and there is a danger that undue weight would be placed on that evidence.
3. Finally, it was submitted in terms of s 137 of the Evidence Act that there was a danger of unfair prejudice which lies in the real risk that the jury will attach a significance to the proposition that the accused had some sort of martial arts training and he was therefore "more dangerous". The court should not, it was submitted, permit the risk of that infecting the jury's consideration of issues arising from an incident that they can see on the CCTV footage.

Consideration

1. Before turning to the issue of relevance of the evidence, it is necessary to identify the particular factual matters which the evidence is said to establish concerning the accused's training and skills.
2. The evidence as to training has two aspects. The first is the evidence as to the nature and content of the course in which the accused was enrolled at the Institute. The second aspect raises a question as to whether or not the evidence establishes the nature of any proficiencies the accused is said to have acquired that equipped or enabled him to strike or attack with martial arts skills.
3. The evidence of Mr O'Shea and Mr Krafczyk, as noted above, was directed to the accused's enrolment in the Institute's course and that the course essentially taught defensive strategies and techniques rather than attacking manoeuvres or methods. In that respect the evidence may be seen to a point as contradictory of Mr Missingham's opinion to the effect that the accused's manoeuvres, as depicted in the CCTV, was consistent with him having some martial arts training, either Karate or Tae Kwon Do or derivatives of such arts. In other words, the evidence from Mr O'Shea and Mr Krafczyk is somewhat at odds with the proposition that the accused acquired at the Institute attacking techniques in the course he attended and does not assist in these respects in establishing an express basis for Mr Missingham's opinion.
4. In so saying, I have not overlooked Mr O'Shea's statement to the effect that the accused's training included some techniques to hit a person if attacked and defensive front kicks: Statement at [23]-[24].
5. As to the level of proficiency, if any, acquired by the accused during his instruction at the Institute, the evidence is silent. Whilst Mr O'Shea's statement indicates that he recalls the accused attending the Institute course and recalls certain particular matters about him, his evidence does not go to establishing the skills or proficiency he acquired, including any defensive attacking techniques. The closest the evidence goes in that respect is the reference in para [23] of his statement of 20 November 2013 in which he said that the accused "would have" received training which outlined safe strike zones to hit a person if they are under threat. No reference is made to the methods or techniques, if any, of an attacking nature, in particular, concerning the use of the upper body in delivering a punch to another.
6. Accordingly, the evidence on training is limited to a description of the nature of the course undertaken and little is disclosed in it as to any skills or proficiency actually acquired by the accused.
7. It is for that reason, as earlier stated, that the evidence of Mr O'Shea and Mr Krafczyk fails to establish that the accused was trained in attacking skills of relevance to the present case, or of him having undergone training in either Karate of Tae Kwon Do or derivatives as opined by Mr Missingham.
8. Mr Krafczyk's statement distinguishes Krav Maga from the latter. He states that Krav Maga is: "… a system of self-defence. The training is not considered to be a 'martial art' and the techniques taught centre on the safety of the person and those around them through defensive tactics: at [8]. See also [14].
9. Section 55 of the Evidence Act is in the following terms: "(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence."
10. The provisions of the section require a connection between the evidence and a "fact in issue in proceedings". In terms of the "probability" referred to in s 55(1), it is sufficient if the evidence only makes the fact in issue more probable or less probable than it would be without the evidence. Accordingly, in evaluating the evidence sought to be relied upon by the Crown, it is necessary to determine: 1. Whether there is a connection between the evidence and facts relevant to the case; and 2. Whether the evidence ultimately bears upon a matter in issue in the trial.
11. The reference to "if it were accepted" in s 55(1) requires relevance to be determined on the assumption that the tribunal of fact accepts the evidence. The assessment of probabilities is to be made in the context of other evidence that has been admitted at the time of the tender of the evidence or subsequently to be adduced. In the present case, the issues in the proceedings are to be determined by reference to the factual elements of the charged offence and any defence: Smith v R (2001) 206 CLR 650 at [7].
12. With these matters in mind, any training that the accused received which may have afforded him "confidence" to confront alone two young men, cannot, in my assessment, be said to be relevant to a fact in issue going to the accused's state of mind or intention. Accordingly, I do not consider that the issue of his "confidence" is a matter that can be said to be either directly or indirectly related to an issue in the trial.
13. In determining whether the evidence is relevant to the issue as to whether the accused had the alleged intention to cause grievous bodily harm to the victim it is necessary, in my opinion, to consider the following matters: 1. Whether the evidence establishes that the accused acquired knowledge or skill in martial art fighting skills or techniques. 2. Whether the evidence establishes that, as at the date of the alleged offence, he was aware that the use or deployment of the technique or skills he allegedly acquired, was capable of causing grievous bodily harm if deployed in a physical attack.

Analysis

1. The requirements for the admissibility of expert evidence were enunciated in Makita Australia Pty Ltd v Sprowles at [85]:
2. In particular, under s 79: "(1) an opinion must be at least based on specialised knowledge. (2) the reasoning process leading to the formulation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (Makita, supra; Bellavista Pty Ltd v Sovereign Motor Inns Pty Ltd [2002] NSWCA 279 per Sheller JA at [62]). (3) the specialised knowledge upon which the opinion is substantially based must be established to be a reliable body of knowledge and experience: Velevski v The Queen 76 ALJR 402 at [82], [154]; R v G (1997) 42 NSWLR 451 at 459.
3. The evidence of Mr O'Shea, Mr Trafton and Mr Krafczyk is evidence that goes to the question as to actual training (in particular, the nature and level of training) that was undertaken by the accused prior to the offence. The Crown relies upon such evidence as evidence of fact - namely, that the accused did receive training in martial arts (referred to below as the "training evidence"). The evidence is also relied upon by the Crown as evidence that supports the opinion expressed by Mr Missingham (referred to below as the "opinion evidence").
4. The evidence of Messrs O'Shea, Trafton and Krafczyk in those respects is accordingly interrelated with the expert opinion of Mr Missingham which the evidence is said to support.
5. Before examining the issue of any interrelationship between the "the training evidence" and "the opinion evidence", it is necessary to identify what issue or fact in issue the opinion evidence is directed to.
6. The evidence that the accused allegedly held martial arts skills at the time of the offence must relate to one or possibly two matters, namely, (i) the actus reus of the offence or the circumstances of its occurrence; (ii) relevant state of mind issues arising in the proceedings.
7. An example of the former may be seen in the case of R v Rose [2002] NSWCCA 455 where there was an issue as to the cause of death and the likely time at which the relevant injury (involving an infant) occurred. A critical issue in the Crown case in Rose, was that the Crown had to establish beyond reasonable doubt that the appellant had applied pressure to the neck of the deceased, that this act had caused her death, and that by it, he had intended to kill her or cause her grievous bodily harm.
8. The cause of death, taking the Crown case at its highest in that case, was that death was probably caused by a blow, or by the application of pressure to the neck of the deceased in the area of the haematoma, thereby causing vagal inhibition. On this issue, the Crown relied upon evidence concerning the appellant's training to Brown Belt Karate level and this was said to have assumed significance at trial in view of the Crown case theory that the death of the deceased had been due to vagal inhibition of the kind which can be caused by some types of Karate holds or actions.
9. It is clear from the Crown's submissions in the present proceedings that it does not seek to rely upon evidence as to any martial skills held by the accused, to prove either the fact of the cause of death or any other issue concerning the person who is said to have punched the deceased causing him to fall to the ground and sustain a head injury from which he died. Rather, it appears from the Crown's submissions, that the evidence is said to be relevant in some respects as to matters going to the state of mind of the accused at the time he punched the deceased. The four matters referred to and relied upon in the Crown's submissions are extracted in para [20] above.
10. It is possible to envisage, in some cases, how evidence of training and proficiency in martial arts may be relevant to a state of mind issue arising in a case. Thus, by way of example, a person who is extremely proficient in martial arts could be taken to be fully aware of the fact that he or she was capable of delivering a punch with potentially lethal force. Evidence of that kind may be relevant to determining in such a case the intention with which that person on a particular occasion vigorously assaulted another. It may be "relevant" in terms of s 55 of the Evidence Act in establishing the state of mind or intention at the time of delivering the assault, that is, an intention to cause grievous bodily harm.
11. I return to the question of the validity of any interrelationship between the "training evidence" and the "opinion evidence" to which I have earlier referred.
12. The opinion expressed by Mr Missingham in his report is, as earlier noted, that the accused had "some" martial arts training, either Karate or Tae Kwon Do or a derivative of either. That opinion is said to have been based upon him viewing the CCTV footage and noting particular matters such as the accused's ability to block a kick with an X block (said to be a trained response), that he did not look down at the time he kicked but reacted to it peripherally (also said to be a trained response) and that the punches were delivered from the central part of the body involving hip and shoulder torque and from a wide-based stance (said to be trained actions). He considered that the punches thrown by the accused, when able to be clearly seen, were in a classic Karate lunge punch form. I consider these are the matters that formed the bases for Mr Missingham's opinion.
13. The evidence of Messrs O'Shea, Trafton and Krafczyk as to the training evidence, however, does not in fact interrelate with Mr Missingham's opinion. Their evidence is to the effect that the accused was only trained in defensive techniques, the Krav Maga centres offering a form of self-defence against real life attacks. The techniques include defences, as earlier noted, against basic grabs, holds, strikes etc do not teach a person how to become a fighter or how to attack as an aggressor. Some of the techniques may be similar to boxing or other techniques used in a defensive manner.
14. That evidence is contrary to the proposition advanced by Mr Missingham that the accused was trained in Karate or Tae Kwon Do techniques or derivatives of those martial arts. Accordingly, the training evidence of Messrs O'Shea, Trafton and Krafczyk does not in fact support the opinion of Mr Missingham given that their evidence establishes that the training which the accused undertook at the Institute was very different to either Karate or Tae Kwon do etc.
15. There is a further difficulty that arises concerning the expert evidence which the Crown proposes to rely upon. The evidence does not, in my assessment, relate to any relevant specific state of mind question, such as, for example, in the hypothetical illustration referred to in [68] above.
16. As to the two matters relied upon by the Crown in its submissions at [8], I do not, as earlier indicated, consider that the "confidence" that may have arisen from his training at the Institute to confront the two young men is relevant to a fact in issue in these proceedings. Whilst the accused may have had a level of confidence, any such "confidence" does not go towards proving the state of mind issue.
17. Similarly, the fact that such training as he received from Krav Maga training courses provided him with the skill to counter a response or attempted punch by moving back and then deliver a forceful blow does not, in my assessment, go directly or indirectly to prove an intention to inflict grievous bodily harm or any other state of mind issue. Such skill as he may have had in that respect was not, on the evidence, the result of any training that he received from Krav Maga Institute. It is at least consistent with some other form of experience the accused may have had.
18. Even if contrary to the conclusion I have expressed above, the evidence sought to be admitted was admissible as expert evidence relevant to a fact in issue, as a matter of discretion under s 137 I consider the evidence should not be admitted as it would be likely to create unfair prejudice to the accused. Against the evidence of his actual low level of training in Krav Maga (and no evidence of training in Karate or Tae Kwon do), an undue amount of attention in the trial would be given to the accused's alleged capacity to effect a lethal assault upon a victim. In those circumstances, I consider there would be a real risk that trial directions could not adequately address what would amount to a disproportionate level of attention on that issue.
19. Consideration to excluding evidence in a particular case under ss 135 or 137 may need to be given where the probative value of evidence is minimal and there exists a real danger of the jury giving the evidence too much weight.
20. In this case, Mr Missingham's opinion, based as it is on the physical actions or techniques of the accused shown in the CCTV, is that the accused has had "some" martial arts training "either Karate or Tae Kwon Do or a derivative of these martial arts". The learned Crown Prosecutor fairly conceded that his opinion, insofar as it entirely rests upon him viewing the accused's actions as being "consistent" with trained action, is identified "but narrowly": T 18:45-50.
21. Where it is alleged that there is evidence of an accused person having a special skill or proficiency and such is said to be probative of a state of mind issue (in this case an intention to cause grievous bodily harm) the evidence would, in my view, need to establish the level of training, proficiency etc the accused person has had or achieved. The opinion as expressed by Mr Missingham as to the accused's level of training is expressed in very general or non-specific terms ("some training"). Additionally, on the basis of the evidence on the voir dire, there is no independent evidence that the accused has in fact ever undertaken the types of training about which Mr Missingham speaks (Karate or Tae Kwon Do etc). These, in my opinion, are all matters that go to any assessment of the probative weight of the evidence and the possible risks of a jury giving the general evidence in this case disproportionate weight.
22. I have concluded that the proposed evidence is inadmissible by reason of its lack of relevance. Alternatively, even if the evidence was capable of being admitted, it should be excluded as a matter of discretion under s 135 or 137 of the Evidence Act for the above reasons.

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