R v Memery [2002] VSCA 223

31. The main issue at the trial was that of self defence and, as argued, it was the principal ground of appeal. According to the notice of application for leave to appeal, Ground 1 was that the verdict of the jury was unsafe and unsatisfactory and ground 4, that the Crown failed to exclude self-defence beyond reasonable doubt. These two grounds were argued together. There were no eye-witnesses to the altercation that occurred in the street between the applicant and the deceased, though some of the sounds were captured on the audio recorder; and, as the applicant stood mute, the jury had his version only as recounted in his record on interview. As the Crown contended that much of this was lies, I shall describe the interview in some detail.

34. The interview began with the applicant describing the details of his movements on the night of 12 May, including his drinking with friends and ending with his routine at home. His next recollection, he said, was running up the hill in the street, and turning to find the deceased there 15 metres away cursing him and threatening him. He said he turned to the deceased and said "Let's talk" and walked to him. In apparent explanation of his earlier acts of vandalism, the applicant said to the deceased: "You bastards have been givin' me a hard time" and "Let's talk". The deceased then put his hand around the applicant's throat (the applicant claimed) and pushed him to the ground, his face "virtually in to the ground", cursing him. The applicant then "half got up" and they were "walking back" down the street. The applicant asked where they were going and the deceased said "Never you f'n mind ...". He stopped walking and the deceased began cursing him again and grabbed him by the throat and pushed him to the ground. They then wrestled around and the deceased was hitting the applicant's head against the asphalt and he could not breathe at all. So he stood up again and asked to talk again. Then they started walking down "with his arm around my throat". They actually hit the ground a number of times. The last time it happened the deceased said "I'll fucken kill ya" and "gone right off his tree". He had the applicant by the throat and his knee in his back and he could not breathe. He was going dizzy and thought he was going to die. He said "That's when I put my hand in my pocket, pulled out the knife and just pushed backwards. Pushed the knife backwards. Behind me. I have no idea where he went after that". He did not know if he lost consciousness, but the deceased just disappeared. He looked around, saw a police car outside Ms Hartney's house, and walked down the hill to his car and drove towards his home. On the way home he had an accident: he called his sister and arranged for a tow truck. Of the actual incident involving the deceased he said to the police: it was "more of self-defence than anything else. I must've been unconscious on the road. `Cos he just disappeared ... the next thing I know ... I remember being in the gutter ... remember looking up and seeing the brake lights of the police car ... so I must've been unconscious there for a while."

37. In the course of the interview, the applicant said that he recognised that he had violated the intervention orders against him by being there at all. He did not know why he stopped to confront the deceased. During the incident, the deceased was calling out "real loud for someone to get the police". After he yelled to the police, the deceased also yelled at the applicant to drop a motor cycle lever which was in his hand. He did drop it and the deceased picked it up and threw it away. Not long after that the deceased was strangling the applicant, the applicant said.

40. As for his relationship with Ruth Hartney, the applicant told the police that he did not know if Hartney and the deceased were in a relationship, but had seen the deceased with his arms around Ms Hartney. He said he was saddened by his relationship failure, not angered. He said he did not even feel anger when he was being bashed by the deceased. That was why he did not fight back. He said he did not recall going into Ms Hartney's driveway that night or committing any acts of criminal damage. He said that the tyre lever was his and that it was normally stored in his shed. The knife was also his, and he normally carried it for work. He denied having committed any earlier acts of criminal damage at Ms Hartney's. He said also that he had not meant to stab the deceased, he just wanted him to let go. He was half kneeling and the deceased was behind him with his arm around his throat and he thrust the knife back. He had not felt the impact of the knife. He knew the deceased was hurt, from his not being there, but thought he might have a wound in his arm. The applicant and the deceased had had a confrontation at the applicant's home earlier that day. In final questions, the applicant confirmed that he thought that he had acted in self-defence, and that the deceased was going to kill him. He had not fought back, save (it must be said) for the one stabbing action.

44. The prosecutor opened by describing first the relationship between Ms Hartney and the applicant, and in particular since 21 January 2000 when, as counsel put it, "even the accused man ... had begun to realise that things were never going to be the same." Counsel said that on 21 January, the applicant went to Ms Hartney's home, looked through the window of the house and saw her inside in the arms of the deceased. He became agitated which led to the police attending and the applicant's being moved on. From that date, said counsel, there was "a period of around about five months of fairly continuous harassment" (harassment which, I add, the applicant in fact denied). There was damage done to the deceased's motor vehicle when parked at Ms Hartney's on 26 February; on 2 April, damage to Ms Hartney's vehicle when parked in the driveway; and further damage to that vehicle on 8 April, and again on 26 April. This led to the installation of the security video camera which was triggered into operation on 13 May. Ms Hartney obtained the intervention order in March (although, again I would add, the applicant consented to the order while denying involvement). As to events on 13 May, counsel told the jury of the telephone call at 2 a.m. and of the applicant's arriving at Ms Hartney's home at about 3.30 a.m., bringing with him a motor cycle tyre lever and the knife which he then used to slash the tyres. When the deceased went outside the house, clad only in trousers, the applicant ran away up the street.

47. What followed was described thus by counsel in opening:-

"Even the accused man in his record of interview subsequently was to tell the Homicide Squad that: He decided, even though he could've escaped, and was much quicker than Trevor Tamme, to go back and confront the deceased person. He said: He went back to confront the deceased person only to chat to him, only to talk to him. At that stage the deceased is armed with nothing, just his pants, no top, bare feet, the accused man has got a motor cycle tyre lever and a knife. It's at that stage, it's our contention, that things go wrong for the accused man. That in fact that at that stage he bites off more than he can chew and in fact the deceased starts to get the upper hand with him. That there's a scuffle up in Eadie Avenue and that the accused man gets the upper hand. The accused was subsequently to tell the Homicide Squad that he, in effect, was then frogmarched down from Eadie Avenue into Westmount Road and then back down towards Ruth Hartney's house. In effect, the deceased was placing the accused man under a citizen's arrest. The accused man, in fact, even told the police that whilst he was going down the hill he'd stopped, he didn't want to go, naturally, with the deceased. He didn't want to go back to Ruth Hartney's place and in particular, the deceased, when he's basically frogmarching the accused man down Westmount Road, the deceased is calling out, `get the police, get the police'. It's the Crown's case that clearly, at that stage, the accused man starts to resist. It's the Crown's case the accused man decides to take things into his own hands and at that stage stabbed the deceased with a knife that he had with him."

52. The trial occupied some ten days, including one day spent on a view. There were 23 witnesses called for the Crown and a forensic pathologist for the defence. As to events prior to 13 May, Detective Senior Constable Ross gave evidence of the complaints made by Ms Hartney on and after 21 January of harassment and of the intervention order, notice of which was first given to applicant on 3 March 2000. (The order was confirmed on 14 March.) There was evidence from the deceased's son, the mother of Ruth Hartney and from some of the neighbours. The applicant's father gave evidence and so did his sister and her husband (the Websters). As to events on the night of 12-13 May, there was evidence of the applicant's drinking that night and evidence about what followed from Ms Hartney, her brother in law and the neighbours. As to what the applicant had said afterwards, both about what happened in Westmount Road and in his car accident, evidence came from Mr. and Mrs. Webster, the tow truck driver, Noel Knight, the applicant's father and, of course, the doctors and the police. Mention has been made of Dr. Lew and Dr. Gall. In addition there was evidence from Dr. Lynch, a forensic pathologist, who attended at Westmount Road where he found the deceased lying in broken glass and with a stab would in the chest, and who later performed the autopsy. Professor Cordner gave forensic opinion about the deceased's injuries after reviewing the reports of Dr. Lew and Dr. Gall, and Dr. Collins, the only witness called by the defence, expressed his opinion about the injuries to the deceased, substantially agreeing with Drs. Lew, Gall and Cordner. Finally, the police gave evidence about their investigation.

55. It is plain enough that the evidence of the medical practitioners, to a greater or lesser extent, all confirmed that the applicant was showing injuries consistent with his having been throttled at some stage by the applicant. Mention has already been made of Dr. Gall's findings and there is no need to explore it any further because it was no part of the Crown case to deny that, at some stage or other in the altercation between the two men, the applicant had been held in a choking type of head lock. Building in particular on what the neighbours said they heard in the street at the time, the Crown case was that the episode of choking, or one or other of the episodes of choking, "did not occur at the time [the applicant] decided to stab."

58. So far as the applicant's own version of events went, the Crown contended that the applicant was lying and counsel pointed to, inter alia, other versions of events given by the applicant himself. For example, when recounting what he was told by the applicant after the car accident, the tow truck driver, Mr. Knight, said this:

"So he's been dragged along by the hair, along the concrete and being kicked; anything else he said had occurred to him? --- Yes, he sort of - he said to me, he tried to ask the chap to stop. Yes?---Something to the effects, `Stop, we don't need this; don't make me hurt you' and the guy didn't stop, naturally. Yes?---And so Norm told me that he then put his hand in his pocket and pulled out his pocket knife and just swung it over his shoulder and the chap rang off - ran off screaming and Norm jumped in his car and took off."

When speaking to the first doctor he saw, Dr. Lew at the Maroondah Hospital at about 12.15 p.m. on 13 May, the applicant told of the assault on him in which he had been punched and dragged along the asphalt, though, he said, he had not lost consciousness. He mentioned the car accident, too, but made no reference to the choking episode. That is not to say that the applicant did not describe the choking episode to others: he described it to George Webster, his brother-in-law, and he mentioned it too to Dr. Gall; but for present purposes the way in which the prosecutor put the case may be described from the judge's charge.

64. As the judge told the jury, prosecuting counsel contended that the applicant had told a pack of lies to the police in the record of interview and was a person who "could camouflage his feelings as he did to his friends". There were ten specific lies relied upon. First, when the applicant told the police that he did not know if Ms Hartney and the deceased were in a relationship. Secondly, when he denied that he had been responsible for earlier incidents of damage to the vehicles of Ms Hartney and the deceased. (Yet there had been no incidents before January 2000 and none after 13 May). Thirdly, the applicant lied in telling police that he could not remember damaging the vehicles on the night of 13 May. Fourthly, when he said that he was only sad, not angry, that night. Fifthly, when he tried to portray himself as a pacifist who just wanted to talk. Sixthly, the accused lied when he told his sister that he only went to Healesville because he wanted to talk. Seventhly, he lied when he told police and others that he had got a massive hiding from the deceased, when the evidence of his injuries as relatively minor came from all the doctors and was apparent from the photos. Eighthly, he was lying when he said he did not know it was the deceased who was chasing him (though the man came out of Ms Hartney's home where the deceased's utility was parked). Ninthly, the accused was lying when he claimed that he suffered no injuries at all in the motor car accident and tenthly, when he denied making the telephone call at 2 a.m.

67. Prosecuting counsel argued (continued the judge) that as at 13 May the accused was full of malice and anger against both Ms Hartney and the deceased and was carrying on a personal vendetta against the deceased. His conduct that night in breaching the intervention order and in damaging the vehicles "could be seen as a key to the mind of the accused that night". That he was angry was clear "from his taking with him that night both a knife and a tyre lever", and the deceased's conduct in getting him to drop the tyre lever and then throwing it away demonstrated, said counsel, "the more reasoned attitude of the deceased". As for the claim that the applicant had struck only in self-defence: the judge said this of the Crown case:-

"Mr Hicks [prosecuting counsel] put to you that there was clear evidence that the accused had been held in a choking type headlock at some stage on the night in question but the accused himself said in his interview with the police that he had been in a headlock, not just at the end, but three times starting in Eadie Avenue, and there had been a time early on when he claimed that he could not breathe. On any view, the accused had been able to get up and continue moving at least twice. Very importantly, the accused when interviewed said that the deceased had called out for the police. That evidence fitted in with the clear evidence of the accused breaching the intervention order and damaging the vehicles. The clear inference was that the deceased was aiming to take the accused to the police. There was, therefore, no need to stab; there was no need to kill. There are good reasons why you should conclude that the accused was not being held in a headlock when the knife was actually used. The evidence of neighbours clearly showed that progress was from Eadie Avenue down Westmount Road. That evidence was consistent with there being a headlock in Eadie Avenue; that evidence was also of voices being heard into Westmount Road. There were three particularly strong indicators that the accused was not in a headlock at the time of the stabbing. Two came from the first two independent and reliable witnesses to whom the accused spoke. The first was Noel Knight. The accused said nothing to Noel Knight of being held in a headlock. Moreover, the accused said nothing to Noel Knight of losing consciousness. On the contrary, the accused told Noel Knight that the other man ran off screaming. Moreover, the accused told Noel Knight that he had said to the other man: `Don't make me hurt you' and then used the knife. The second was Dr. Lew; the accused was asked to say how he came to be injured. The accused said nothing about being held in a headlock. Furthermore, he denied losing consciousness. The third strong indicator of the accused not being in a headlock when he stabbed the deceased was that two voices can be heard on what was recorded at the time of the stabbing."

72. As I have said, self defence was the main issue at trial. The judge directed the jury accordingly, and no criticism is now made by appellant's counsel of the judge's charge (either in respect of directions relevant to self defence or otherwise). The alternatives to murder, as put to the jury, were manslaughter by unlawful and dangerous act or the killing of the deceased after provocation. Provocation was not addressed either by the prosecutor or by defence counsel, but the judge charged on provocation, regarding it as his duty to do so. The more likely explanation of the jury's verdict, however, is manslaughter by unlawful and dangerous act, once the jury had decided to reject self-defence. As counsel for the applicant stressed, self-defence must have led to an acquittal; to convict of manslaughter, the jury must have rejected self-defence - and, given the evidence before the jury, that made the verdict unsafe and unsatisfactory. It had not been open to the jury, he contended, to reject self-defence.

75. It my opinion there was clearly enough before the jury to enable them properly to reject the applicant's claim to have been acting in self defence when he stabbed the deceased. The case to that effect was plainly put to the jury by prosecuting counsel and the rest was a matter for the jury to decide. In so far as the claim depended upon the applicant's own version to police, there was ample ground for the jury's concluding that the claim was a lie. Mr. Gillespie-Jones sought then to rest the case upon what he called the objective facts, contending that there was insufficient known directly about what occurred in the street between the two men for the jury to be satisfied to the required standard that the Crown had excluded self defence. I do not agree. Indeed Mr. Hicks' closing address to the jury, as described by the judge in his charge[1]

, seems to me to contain sufficient by reference to the evidence given to sustain the jury's decision in that regard. This was in substance the argument put to us by Mr. McArdle and I think that his submission should be accepted. I would therefore reject grounds 1 and 4.

81. I turn then to the other grounds of appeal. According to the notice of application filed on 1 August 2001, there were two other grounds of appeal. Ground 3 was not argued before us and Ground 2, which was argued by Mr. Gillespie Jones under the heading of "Unsavoury conduct", related to "evidence of prior uncharged acts of criminal damage to property owned by the deceased and/or Ruth Hartney". This was a reference, we were told, to evidence of damage to property on occasions before 13 May, evidence which was not needed, said Mr. Gillespie-Jones, because evidence of the damage done on 13 May was quite sufficient in itself, and without more, for the purposes of the prosecution. There was argument at trial about the evidence of previous acts of criminal damage at Ms Hartney's property, the more especially as there was no direct evidence that the applicant was the person concerned. It was contended at trial that the prejudicial value of the evidence of the earlier acts of criminal damage far outweighed its probative value, but this argument was rejected by the judge.

84. As articulated in the notice of application for leave to appeal, ground 2 was that the judge had erred in allowing the Crown to lead evidence of the prior uncharged acts of damage when (i) there was no sufficient evidence that the applicant was the person responsible for the criminal damage and (ii) the prejudicial value of the evidence did outweigh its probative value. In his helpful outline of argument, applicant's counsel abandoned reliance upon the first, accepting that, if the evidence was allowed in, it was open to the jury to conclude that the applicant was the person responsible for that earlier damage - a concession that was plainly right, in my view.

87. As for the second, that prejudice outweighed probative value, this had been the argument put by counsel at trial and it was the argument rejected by the judge. Mr. Gillespie-Jones was able to hand to us his Honour's reasons for so ruling (reasons which were delivered on 26 July 2001, well after the conclusion of the trial). Counsel said that, on examining those reasons, it appeared that his Honour had dealt with the matter as an exercise of the Christie discretion[2], but that, he now contended, was error in that what should have been considered was s.398A of the Crimes Act 1958. The evidence in question was propensity evidence, he submitted, and as such its admission should have been considered under that section, and not its possible exclusion in the exercise of the Christie discretion. It has been at least suggested that where s.398A applies, there is no room for the exercise of the Christie discretion; anyway, said counsel, they were altogether different, the one dealing with the admission of evidence and the other with its exclusion. The statute was not considered at all, and so there was error.

90. As a result of the foregoing, counsel made application orally, without objection, for leave to amend the grounds of appeal by substituting a new ground of appeal, ground 2A which read:-

"The learned trial judge erred in failing to apply s.398A of the Crimes Act to the admission of evidence of conduct of the applicant from the 21st January 2000 to the 26th April 2000."

When asked, counsel said that the evidence in question was indeed that of "prior uncharged acts of criminal damage to property owned by the deceased and/or Ruth Hartney" as mentioned in ground 2, but only such damage before 13 May.

95. The difficulty with ground 2A is that nobody, at trial, mentioned s.398A (just as no express mention was made either of Christie). The argument put to the trial judge was simply that the evidence should not be admitted because, as stated in the earlier ground 2, the prejudicial value of the evidence outweighed any probative value it might have. That was the submission put and that was the submission rejected, on the ground the evidence did have probative value and that that probative value was not outweighed by the prejudice. It is difficult then for the applicant to establish any miscarriage of justice in the failure of the judge to refer to s.398A. If the judge fell into error in failing to refer to s.398A, I agree with Mr. McArdle that it can have made no difference. The question under s.398A in relation to propensity evidence is whether, "in all the circumstances it is just to admit the evidence despite any prejudicial effect it may have on the [accused]". The argument for the applicant, as described in paragraph 2.11 of counsel's outline, is that "the evidence did not have the high degree of probative force required" for its admission. The argument therefore came down to this: that under s.398A, the evidence did not have such a high degree of probative force as to make it just that it be admitted, despite its prejudicial effect. Plainly that requires a weighing of the probative value and the prejudicial effect, and that is just what the judge did. In the circumstances of this case I am not persuaded that there was a miscarriage of justice because s.398A addresses the admission of evidence, while the Christie discretion addresses its exclusion.

98. The second part of the submission headed "Unsavoury conduct" depended upon grounds 6 and 7. These were two of three new grounds of appeal which the applicant sought leave to introduce by amendment, notice of which had been given in writing but recently, on 19 November 2002. We heard counsel on them subject to our decision whether leave to amend should be granted or refused. The new ground 6 alleged miscarriage by the late service of a statement of Ruth Hartney dated 29 May 2001, a statement which counsel alleged was directed principally to showing bad blood between the applicant and the deceased. Ground 7 alleged miscarriage by the admission of evidence that Ms Hartney was petrified of the applicant, that she did not trust him, and that her daughters too were terrified of the applicant.

101. In relation to the new ground 6, Mr. McArdle gave us the chronology of events. The matter was raised with the trial judge on 28 May, when the prosecutor foreshadowed that he would be talking further with Ms Hartney, who had not yet gone into the witness box at trial, about the past incidents of harassment by the deceased. A statement was then taken by counsel from Ms Hartney and a copy was faxed to applicant's counsel on the afternoon of 29 May. A "Basha" enquiry was held on Friday 1 June and the witness was not called to give evidence until Monday 4 June. Thus the evidence was led before the Crown case was concluded. In all the circumstances there was no miscarriage of justice arising simply from "the late service" of the statement.

104. Indeed, in the course of argument Mr. Gillespie-Jones abandoned reliance on ground 6 and sought instead to substitute a new ground 6A (sometimes called ground 5A) alleging that miscarriage was occasioned by the failure of the prosecutor "to disclose to counsel for the applicant the intention to lead evidence of animus between the applicant and the deceased". The evidence of animus between applicant and deceased, said counsel, significantly changed the case being made against the applicant and that "sudden change" compromised the applicant as to his defence and gave to the prosecution "a tactical advantage" by letting the defence go on in ignorance (as I understood counsel) of what was intended. Counsel called in aid R. v. Lewis-Hamilton[3] and R. v. G.A.S.[4], but neither case seems to me to advance the argument here. Ill feeling between the applicant and the deceased must have been obvious from the slashing of the tyres on the latter's vehicle on 13 May and the filling of the petrol tank with water; it was obvious too from the recounting of past damage done to the deceased's vehicle, if it be inferred (as is now accepted was open) that that previous damage was done by the applicant, something which one may suppose was alleged by Ms Hartney when seeking the intervention order in March. The complaint now made was not much explored in oral argument, perhaps because of the late formulation of yet another new ground, but such as it was the argument failed to persuade.

107. The complaint made in the Ground 6A is in some respects akin to that made in Ground 7 and I turn now to that. Ground 7 alleges miscarriage by reason of the evidence led about fear of the applicant. In fact that evidence came out, not because it was sought by the prosecutor but because of the answers in examination-in-chief (on 4 June) which were unresponsive to two questions asked, the first of the brother in law of Ms Hartney and the second of Ms Hartney herself. Mr. Gillespie-Jones repeated to us the complaint made by counsel at trial: that the reception of this evidence had put the applicant into a position of serious disadvantage in that the evidence of relationship between him and Ms Hartney was now made so much worse for the applicant, he being painted as "some sort of monster", a consequence which led him, he said, to renew an application earlier made to have the jury discharged. The application to discharge the jury failed and I cannot say that the judge erred in so ruling.

110. The complaint now made in Ground 7 is about evidence of fear in particular, not about evidence of the relationship generally; yet the one is but the obvious result of the other and I doubt that the jury learnt anything that they would not otherwise have inferred, if they thought it material. After all, the applicant had been sufficiently concerned to obtain an intervention order, and in respect not only of her own house but also her mother's. Moreover, evidence of past acts of criminal damage had not only been opened but had already been given by Detective Senior Constable Ross and, given the circumstances in which the further evidence was led and the way in which it came about, I am not persuaded of any miscarriage of justice as claimed in ground 7 - or indeed in ground 6.

114. Ground 5 was the third of the three new grounds of which notice had been given on 19 November 2002. Like ground 3, ground 5 concerned evidence of the motor vehicle accident that occurred shortly after the stabbing of the deceased. Applicant's counsel abandoned reliance upon ground 3 and instead focussed on ground 5 under the heading "Explanation of Injuries". Ground 5 related solely to the evidence of Professor Cordner as to the possibilities concerning injury by the applicant in the car accident. Counsel's argument was that Professor Cordner should not have been asked by the prosecutor about injury if the applicant had not been wearing a seat belt; for, he said, the only evidence was that the applicant was wearing a seat belt. By asking Professor Cordner about the possibility of injury if no seat belt was being worn and obtaining answers to the effect that the rib injury was more likely if a seat belt was not being worn than if it was being worn, the

prosecutor had impermissibly opened up a possibility that the applicant had sustained the injury in the car accident and not, as he himself claimed, only at the hands of the deceased.

118. There is nothing in this submission. Professor Cordner was only asked about the possibilities and was asked about injury on the hypothesis that a seat belt was not being worn and also on the hypothesis that a seat belt was being worn. There was no reason why the jury had to accept the applicant's version of events, that he was wearing a seat belt; as already mentioned, there was ample ground for rejecting what the applicant claimed in his record of interview. Mr. Gillespie-Jones argued that Professor Cordner's opinion was flawed, because it was based upon a fact not established by the evidence, and he cited R. v. Anderson[5], but that was an altogether different case. There, two doctors had offered the medical opinion that certain injuries sustained by the accused had not been inflicted by an assailant, as he claimed, but were self-inflicted. It then turned out, in cross-examination, that neither of the doctors had had any sound basis for their opinion. That is not the position here. Professor Cordner was not shown to have been wrong in opining that the rib injury was more likely to have occurred if a seat belt was not being worn, than if one was worn. He offered no opinion whatsoever about whether or not a seat belt was being worn; nor did he offer any opinion about whether the rib injury was sustained in the car accident. There is nothing in the attack on his evidence, and no error in its admission. There is nothing in ground 5.

121. As in my opinion there is nothing in any of the grounds taken, whether in the original notice of application or those foreshadowed by the several applications for leave to amend, I would dismiss this application.

126. I agree that the application should be dismissed for the reasons stated by Phillips, J.A.

[1] See paragraph [[] above.

2] R. v. Christie [1914] A.C. 545.

[3] [1998] 1 V.R. 630 at 634.

[4] [1998] 3 V.R. 862 at 879.

[5] [2000] VSCA 16; [2000] 1 V.R. 1.