R v White & ors

The notice 11The notice was of an intention to adduce tendency and coincidence evidence ("the notice"). It was said that the person whose tendency, and/or coincidental conduct, the subject of the evidence sought to be adduced was the accused White. The notice continues: The tendency sought to be proved is his tendency, and/or coincidental conduct, to act in a particular way, in particular circumstances. Namely, when enlisting the support of friends and/or colleagues to assist him as an accessory after the fact to murder, such assistance is sought to be secured by him by threatening that person with physical violence, including death or the infliction of very serious injury, unless that person does what is required of him/her in those requests. 12The substance of the evidence was identified by reference to a list of paragraphs and sentences in a number of prosecution witness statements. Also in this list was a brief summary of the evidence it is anticipated the accused Serone will give: That Rodney Boyd White threatened Todd Serone with death or serious injury if he failed to follow White's directions in performing the activities relied upon by the prosecution as amounting to accessorial conduct after the fact to the murder of Sid Zaiter. 13That is a reference to the fact in issue to which the proposed evidence relates rather than being evidence to establish the tendency/coincidence. 14The final paragraph of the notice provides that, "in the view of the lawyer with the current conduct of the matter", the tendency and/or coincidence evidence bears upon the facts in issue in this trial, including the following facts in issue:

• Whether Todd Serone was threatened with death or really serious injury by Rodney Boyd White at relevant times.
• Whether Todd Serone voluntarily performed the conduct alleged to constitute his acting as an accessory after the fact to the murder of Sid Zaiter.

Stephen Orams statement 29 December 2008 15This is the first of four statements made by Mr Orams. Paragraphs 3 to 21 set out the history of his relationship with the accused White. Paragraphs 22 to 35 set out an account of the events concerning White on 14 to 16 December 2008. Paragraphs 36 to 43 set out an account of events that occurred between 17 and 26 December 2008. Paragraphs 44 to 45 refer to a telephone call Mr Orams received from White on 29 December 2008. It was that telephone call that led to Mr Orams' decision to talk to the police and which, in turn, led to the making of this statement. The balance of the statement sets out some miscellaneous matters concerning White. 16On behalf of the accused Serone, it is proposed to cross-examine into evidence the following (I will summarise and partly quote with reference to the paragraph number; I have omitted reference to matters that are in the notice but which were not pressed in submissions): 8 Mr Orams had seen (on some unspecified occasion(s)) the accused White "flip out and yell at April (his former girlfriend) and threaten to hit her". 9 On an estimated five times in the past two years, Mr Orams had seen White "in a rage or a strange mood. There were times when he might have been angry with April or other members of his family. He would be off his head on drugs and he would tell me not to let him flip out and to keep him calm." 10 Mr Orams had a rule that White was not to use drugs at the Orams home but there had been two or three times when he was "going to flip out unless I let him use drugs". "He would say that he was going to kill us if I didn't let him take his drugs and that he hadn't slept for days". 12 White had a pistol which he produced from a bum bag. He always carried it. (I note that this is already in evidence. It was cross-examined in by Mr Bodor (T175-176; 184).) 15 White had told Mr Orams that "he had beat up people in the past and people were scared of him because he used to run the coast. I just thought he was big noting himself". 17 Mr Orams hired a storage shed for White in about 2006. It was in Mr Orams' name and Mr Orams paid the storage fees, but only when White gave him the money to do so. Mr Orams spoke to White about putting the lease into his own name. "Every time I tried to bring this up, Rod would threaten to bash me and my family". 24 White called Mr Orams on 15 December 2008 and said that he was not far away and that he and his current girlfriend, the accused Birkensleigh, wanted to stay the night. "By this stage I was never happy with him being around but I was scared enough and intimidated enough to do what he said". 17Paragraph 44, along with a corresponding paragraph in the statement of Mr Orams' wife, Sarah, (see below), was characterised by Mr Walmsley as being as the "centrally focussed areas" that he wished to elicit from each of those witnesses (T224.11). It is appropriate to quote it in full: About 11.30am, Monday 29th December 2008, I received a call on Sarah's mobile phone. The call came from the mobile number that Jess [Birkensleigh] gave me [number omitted]. It was Rod on the phone. He was pretending [to] be someone else but I knew his voice. He said, "What have you done with my belongings?" I said, "Tiffany your sister ..." He interrupted me and said, "You don't know who you're talking to. I'm just a mate of his." I said, "Tiffany and the police have got all your stuff." He said, "Why? They were safe with you." I said, "The police are involved and I had no choice in it."' He said, "Well expect a visit from some of my mates from Melbourne." I took this to mean that he was going to come and bash me or kill me. I was terrified. He knows my name, he knows my family's names, and I know that he is capable of doing this. 18Mr Walmsley conceded during the course of submissions that the last paragraph within paragraph 44 is not admissible (T223.35).

Stephen Orams' statements 31 December 2008 and 15 January 2009 19The notice also refers to Mr Orams' second statement of 31 December 2008, although no submissions were made about it. The passage identified in the notice is paragraph 11. The context is that Mr Orams was explaining how he and his family stayed at caravan parks at Ballina and Casino between about 18 and 27 December. Paragraph 11 includes that he booked under an assumed name in both places because he "was afraid that Rod would make enquiries with caravan parks in the area looking for me and my family". 20Another item referred to in the notice but not referred to in submissions was a portion of Mr Orams' third statement of 15 January 2009. Paragraph 6 includes, "You can never predict when Rob [a reference to White] is going to blow up about something. It could start as simple as him wanting a drink, and me not getting it for him immediately". 21Paragraph 13 of the third statement appears in the context of Mr Orams recounting events in the days following 16 December 2008. White had left but Ms Birkensleigh was still with the Orams. The portion of paragraph 13 identified in the notice is: "Previously Rob has told me that the people he deals with, if they turn on you, will also turn on your family. I was worried that having Jess there would make us a target. Even if we got Jess out of there, they may still have seen him come to our house. I was also concerned about who the people in the hire car with Rob were. I[n] paragraph 35 of my first statement, I mentioned that Rob told me that April had a contract on him. After seeing Rob's behaviour, I thought that this was the truth and she knows where I live". 22Mr Orams readily acknowledged that he was not entirely truthful with the police until he made his fourth statement of 5 March 2009. He agreed with Mr Bodor that a person could be untruthful by withholding matters, telling lies, or changing words so as to deflect from the truth. He agreed that "in varying forms" this is what he had done in his first three statements (T179.6). This raises a question as to whether, if the above matters are the subject of cross-examination by Mr Walmsley, Mr Orams would maintain that they were truthful. It was agreed, however, that I should proceed to determine the question of admissibility on the basis that the evidence would be to the same effect as it appears in the statements. If I determined that the evidence is, at face value, admissible, or any of it is, it would then be necessary to consider hearing the evidence on the voir dire before making a final determination.

Sarah Orams' statement 23Ms Sarah Orams made a statement on 15 January 2009. The notice identifies paragraph 20 as being admissible as tendency and/or coincidence evidence. It should be read in conjunction with paragraph 44 of Mr Orams' first statement set out above. It is appropriate to quote it in full: "I have recently received a few TXT's from Jess Phone number [number quoted] which include, "Hey guys this is not my phone anymore you know who this fucken is.people are coming up to visit you, were is all my fucken belongings.ring me now copper" received at 11:25:08 on 29/12/2008, then another one saying "Where are my fucken belongings I want them.australia is a small place.family you fucked that off it seems like" received at 11:29:55 on 29/12/2008. After receiving these TXT's Steve tried to ring Rob back on the number but the phone was off. After that I received a call from Jess' phone and Rob said, "Put me onto Bro" I said, "Is that you Bro" he said, "No it's another Bro" and I gave the phone to Steve. That is the only conversation I had with Rob on the phone from the time that he left our place on the Tuesday." (Grammar, spelling and punctuation as in original.)

Text messages sent by White 24The final matter that appears in the notice was an attachment to a statement by Detective Virginia Gorman of 7 March 2009. The notice identifies Attachment K, but it is in fact Attachment F and comprises a schedule of text messages sent to and from White's phone that are said to disclose "drug dealings in context with threats of violence". Many of the text messages are capable of being regarded as attempts by White to set up some sort of drug transaction with the deceased. The one upon which particular emphasis was placed was sent at some unspecified time on a date between 30 November and 4 December 2008 inclusive: "Call me chines do you want to see my m8 from melb you no I need to see ya china." 25It would appear that "Chines" was a term White used when referring to the deceased.

Submissions in support of admissibility 26Mr Walmsley submitted that the accused Serone's involvement in the events of 16 December 2008 commenced with him being requested to perform a relatively innocuous task of towing a vehicle for White. He had been asked to perform similar tasks in the past. It was shortly after the deceased's vehicle was set alight that, at some point down the road away from that scene, Serone and White had a conversation. It was in the presence of the prosecution witness Elefsen and the co-accused who has earlier pleaded guilty, Humphries, but not in their hearing. 27In this conversation, according to the proposed evidence of Serone, White referred to Elefsen and Humphries, who Serone had not previously met. He told Serone that they were hit men from Melbourne; they did not know the area; Serone had to take them to get a hire car; and he was threatened that he would die if he did not. White will also be said to have stated, "I know where your brother and father are" (T219.5). 28It was anticipated that this evidence would provide the explanation for Serone's involvement in going to the cabin at Chinderah, assisting in the removal of the body of the deceased and taking it away to a place where White and others took it further into bushland where it was dumped (T219.11). 29Mr Walmsley informed me that his client's case will be that he was a friend of White's and did a lot of work on cars for him. White was a very dogmatic character who prevailed upon people in his daily life to do things for him. Examples of that type of behaviour are already in evidence from Mr Orams. Serone and Mr Orams had separate, but similar, relationships of this nature with White. 30Serone's involvement in responding to the request to tow the deceased's vehicle was typical of the relationship. But then he was prevailed upon under threat of death to do more. 31Mr Orams did not refuse to assist White, even after he was drawn further into events by being required to act as a lookout at the caravan park at the time of the murder. Mr Orams had knowledge of White's violent and erratic behaviour and was not going to say "No" to him. It was submitted that this provided a parallel with what occurred in relation to Serone when he was threatened (T221.46). 32Mr Walmsley did acknowledge, however, that there was a different dimension to what occurred in relation to Serone; he was threatened with death or serious injury whereas Mr Orams, although panicked and frightened, was not. Mr Orams was not threatened to continue with participation. He just did what he was asked to do (T221.49). 33It was submitted that "the parallel becomes more complete" when regard is had to paragraph 44 of Mr Orams' first statement. Mr Orams received a call on his wife's mobile from White on the morning of 29 December. A threat was made by White, "well, expect a visit from some of my mates from Melbourne". It was submitted that a reference to "mates from Melbourne" or similar was a consistent theme in threats made by White (T222.23). The same reference was made in what Serone will say was the threat made by White to him by the roadside after the disposal of the deceased's car and before Serone involved himself in the accessorial acts. 34Mr Walmsley characterised the "fact in issue" as "whether or not [the jury] are satisfied beyond reasonable doubt that the Crown have negatived the proposition that White threatened Serone" (T222.40). I interpolate that this is not something the Crown is necessarily required to do. It is only one part of the duress issue. 35The probative value of the evidence was said to lie in the correspondence between the threat made to Mr Orams and the threat made to Serone. Serone will say that he was threatened and Mr Orams will also say that he was threatened and was petrified and "did certain things". Both were threatened, despite the fact that they were friends or colleagues. Serone was threatened with death or serious injury (T222.44 - 223.3). 36So, it was submitted, that if a thing occurred on one occasion, it assisted in determining whether it occurred on a second occasion; hence the probative value of the tendency and/or coincidence evidence (T223.5). 37In relation to the paragraph in Ms Orams' statement, the submission was that this tied in with, and corroborated, paragraph 44 of her husband's first statement and they were, as I indicated earlier, submitted to be the "centrally focussed areas" that Mr Walmsley wished to elicit from each of those witnesses (T224.11). 38As to the schedule of text messages, the reference to "my m8 from melb" was submitted to be a recurrence of a theme of White referring to mates from Melbourne. Other entries in the schedule were said to be related to drug transactions but Mr Walmsley focussed on "the threat", "because of its close parallel with each of Orams and that which my client will say was the threat offered to him as being quite significantly ... [of] potential or rational probative value" (T226.5). 39Aside from paragraph 44 of Mr Orams' first statement, Mr Walmsley characterised the other portions identified in the notice (and still pressed) as being "more general (T227.41). 40In relation to Mr Orams' evidence about White possessing a handgun, Mr Walmsley accepted that there was no suggestion of him having used it except on the occasion when he fired it at a time when the car he was in came across the tow truck driven by Mr Waters with Serone as passenger. It would seem this was done in order to attract the attention of Messrs Waters and Serone and have them pull over. Mr Walmsley conceded, however, that White's possession of a gun "might not be of great contention; it might be in a different category to which I'm raising" (T228.44). 41In relation to the passage in paragraph 15 of Mr Orams' first statement that was pressed, ("he told me he had beat up people in the past" etc), it was submitted to be significant that White said such intimidating things to friends and colleagues and raised "the spectre of danger to anyone if he gets crossed, things don't work according to his directions". It was conceded, however, that this was a "minor aspect". 42There was an implicit concession that the passage in paragraph 24 of Mr Orams first statement was of little significance: "This is in the general category and might not fit within the confines of this tendency notice" (T229.22). 43Those were said to be the matters that Mr Walmsley relied upon; which I take to mean that in addition to those matters which were explicitly not pressed, those that were not mentioned were no longer relied upon either (T229.41). It was reiterated that "the sharp focus" was upon paragraph 44 of Mr Orams' first statement and paragraph 20 of Ms Orams' statement (T229.42). 44The Crown Prosecutor submitted that the evidence relied upon by Mr Walmsley "shows a general disposition towards erratic and unpleasant behaviour that falls short of establishing a tendency to behave in a particular way such that the conduct has significant probative value on the issue as to whether or not it is a reasonable possibility that Mr Serone was acting under duress" (T234.1). 45Although Mr Walmsley did not, the Crown Prosecutor referred to the portions of Mr Orams statements of 31 December 2008 and 15 January 2009 that were included in the list of evidence in the notice. It was his submission that they fell into a category of evidence concerning Mr Orams' state of mind. Similar evidence in the statement of 29 December 2008 was not pressed, it being conceded that it was not admissible. The same view should be taken of the passages in the later statements (T234.10). 46The Crown Prosecutor submitted that paragraph 8 in the first statement simply shows a disposition towards violence in the context of a domestic relationship; no relevant tendency could be inferred from it (T234.20). 47Paragraph 10 (9 and 10 in fact) indicate threats made by White in the context of a significant state of drug intoxication; no relevant tendency could be inferred from that (T234.25). 48Paragraph 12 was not addressed and that is probably because the evidence is already before the jury. 49The admission by Mr White to Mr Orams set out in paragraph 15 of prior violence by him and that people were scared of him could not be led as evidence of the truth of the facts asserted. It could only be relevant to Mr Orams subjective state of mind; a matter conceded to be inadmissible (T235.3). 50Paragraph 17 was accepted to contain a clear threat by White to bash Mr Orams and his family. This was capable of being construed as a threat to inflict really serious injury which is the type of harm it is suggested that Serone will claim (at least) that he was threatened with on 16 December 2008. The Crown Prosecutor accepted that establishing "strict similarity" or even a close resemblance between the evidence in question and the facts in issue was not required under s 97. However, he submitted that this evidence was too dissimilar for any meaningful conclusion as to the asserted tendency to be inferred (T235.20). 51The Crown Prosecutor suggested that perhaps Mr Walmsley had pitched the requirement that the significant probative value of the evidence be relevant to the probability of Serone's account being true on the question of duress. Given the Crown bears the onus of disproving duress beyond reasonable doubt, it was submitted that it was only necessary for Mr Walmsley to establish a significant probative value of the reasonable possibility that the account was true. 52Finally, it was submitted for the Crown that "it's a big leap to transpose the behaviour in one relationship based on very isolated instances into there being conduct of the same kind in a different relationship with a different person in a different context" (T236.36). 53Doubt was raised as to the standing of Mr Bodor to object to the evidence sought to be adduced on behalf of a co-accused. In any event, he supported the submissions made by the Crown Prosecutor (T237.22). 54In submissions in reply, Mr Walmsley confirmed that he was not suggesting that the relevant tendency could be inferred from the individual items of evidence but that it could be inferred from their cumulative effect (T240.19).

Resolution 55I do not intend to set out in detail what has been said in the many authorities on the subject of tendency and coincidence evidence but record that I have had regard to R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [33]-[35]; DAO v R [2011] NSWCCA 63; (2011) 278 ALR 765 at [147]-[149]; and the collective references to authorities contained in R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at [56]-[70] and DSJ v R; NS v R [2012] NSWCCA 9 at [2]-[9]; [40]-[75]. 56First, it is necessary that the evidence is relevant. This is a question as to what the evidence is capable of establishing; whether it does so is a matter for the jury. It is necessary that the evidence has significant probative value, either by itself or having regard to other evidence adduced or to be adduced by the accused Serone. This is a question as to the degree to which the evidence could affect the assessment of the probability of the existence of the fact in issue. Is it to a degree that is more than merely relevant but something less than to a substantial degree? Is its probative value "important" or "of consequence"? R v Lockyer (1996) 89 A Crim R 457 at 459. These concepts are the subject of much discussion in the authorities, some of which I have referred to above. 57It is unnecessary for there to be a striking pattern or similarity between the incident in question (threats made by White to Serone) and the incidents the subject of the evidence sought to be adduced; the evidence need only be of a tendency to act in a particular way: R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286 at [38] per Campbell JA. 58It is must be borne in mind that because it is an accused who wishes to adduce the evidence, the fact in issue in respect of which the evidence must have significant probative value is one for which he only has an evidentiary onus. In other words, it is for the accused Serone to show that there is a reasonable possibility that his actions were committed under duress. It then becomes a matter for the Crown to eliminate that issue beyond reasonable doubt. 59Although the notice referred to the evidence being tendency and coincidence evidence, no real attempt was made to characterise it as the latter. I cannot see that it could be and so I have put that contention to one side. 60The notice asserts that the tendency of the accused White that is sought to be proved is that, when enlisting the support of friends and/or colleagues to assist him as an accessory after the fact to murder, such assistance is sought to be secured by threats of physical violence. That is not really the effect of the tendency sought to be established. There is no suggestion that White sought assistance of others as accessories after the fact to murder on any other occasion. The tendency that I understand is sought to be established is to secure the compliance of friends and/or colleagues in doing White's bidding by threats of physical violence. Mr Walmsley accepted that as a better formulation of the tendency he sought to establish (T243.11). 61Before turning to the evidence relied upon, it is worth noting that Mr Walmsley did not press some portions of the evidence listed in the notice. They generally fell into the category of the subjective reactions of persons to things said and done by White. The last three sentences of paragraph 44 of Mr Orams' first statement is an example. 62The evidence that White threatened to hit his girlfriend, and that he became angry and in a rage when he was either on drugs, or hanging out for drugs, are not suggested to have any connection with White securing the compliance of anyone in doing his bidding. It simply shows, at its highest, a propensity to be angry and intimidating. 63The evidence that he threatened to kill Mr Orams' family if he was not permitted to use drugs in their house is capable of being regarded as threatening violence for the purpose of obtaining something that he wanted, but it was not for the purpose of getting someone to do something for him. It was for the purpose of them allowing him to do something himself, or for the purpose of him getting his way. That might be a fine distinction when it is accepted that there is no requirement for a striking similarity or the like. 64Mr White's possession of a handgun does not support the proposition that he had the tendency in question. There is no suggestion that it was used to threaten anyone to secure their compliance with his demands. The only evidence of use of the gun is that he fired it in order to attract the attention of those in the tow truck, but that is all. 65The evidence that White told Mr Orams of having "beat up people in the past" and that "people were scared of him" would be relevant if Mr Orams' subjective state of mind was an issue. It is not. Evidence that White made such statements is not admissible to establish that he had in fact been violent in the past. Moreover, there are no details about the circumstances; it would be speculation to assume it was something to do with White threatening people with violence in order to have them do his bidding. 66There is the evidence of White threatening to bash Mr Orams and his family whenever Mr Orams brought up the subject of putting the lease on the storage shed in White's own name. The evidence is very imprecise and the situation is very much removed from the situation in question. 67In relation to the passage in paragraph 24 of Mr Orams first statement that he was "scared enough and intimidated enough to do what [White] said", Mr Walmsley made the concession: "This is in the general category and might not fit within the confines of this tendency notice" (T229.22). The concession was appropriate. It is evidence of Mr Orams' subjective state of mind and does not assist in establishing an inference that White had the tendency asserted. 68The major matter upon which reliance was replaced was the evidence in paragraph 20 of Ms Orams' statement and paragraph 44 of Mr Orams' first statement. It is capable of being regarded as White threatening violent retribution in response to Mr Orams having allowed the police to take possession of some of his belongings. In my view, it is so different from the situation that the accused Serone claims occurred that it cannot possibly be the basis for an inference that White had a tendency to act in the manner asserted. 69No submissions were made about the passages in Mr Orams' second and third statement referred to in the notice. They comprise a statement as to Mr Orams' subjective state of mind (2nd statement at [11]); an assertion that White was unpredictable and volatile (3rd statement at [6]); and a suggestion that White's associates were violent. None of these matters are capable of supporting the inference for which the accused Serone contends. 70Finally, the text message schedule annexed to the statement of Detective Gorman contains one message that was said to involve a threat of violence. I have set out its terms earlier. To divine a threat of violence from it, in my view, would be to engage in speculation or wishful thinking. In context, it seems far more likely to be a reference to a person who was claimed by White to be intended to be involved in a proposed drug transaction. 71I have had regard to each item referred to in the notice for which reliance was not withdrawn in the course of submissions. I have had regard to them both individually and in their collective force. On a generous view, the evidence could be said to be relevant. But it is, in many respects, imprecise, general, and/or completely unrelated to the situation the accused Serone claims to have experienced. Indeed, there is very little that concerns White making threats of violence when enlisting the support of friends and/or colleagues to do his bidding. 72I was unable to conclude that the evidence has significant probative value in relation to the fact in issue, whether it is a reasonable possibility that White threatened Serone with death or really serious bodily injury if he did not assist in the manner alleged by the Crown. 73For these reasons I ruled that the evidence was inadmissible.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2012