RUSSELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 246 (10 November 2011)

RUSSELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 246 (10 November 2011) - WASCA 2011 case summary — Zoe

[94]

[A] lot of what the State says is not in dispute from [KLA's] point of view and we're going to accept the evidence that the State puts forward on the three areas where the State says [KLA] did something that assisted [the appellant], because she did all of these three things, and this is not in dispute between the State and [KLA]. She did help [the appellant] clean up after what had happened, after the murder. She did help mop up the blood, she did help move [the deceased's] body. We'll say, and it's a question for you, you accept what you find proven by the evidence, but we will say that is what happened. We will accept that [KLA] fobbed off various friends of [the deceased] and relatives and told them lies about what had happened to [the deceased]. People asked after [the deceased] and she lied to them. The State says they were deliberate lies about [the deceased] and we accept that she lied to those people. The final thing the State says in the case against [KLA], she lied to the police. Well, that's absolutely right, she did lie to the police. She did the first video with the police where she lied to them about what had happened ... That's her case, that [the appellant] forced her to do what she did. Now, I said apply your commonsense and you will hear evidence that suggests that [KLA] had every reason to fear [the appellant]. First and foremost, she's just come into the kitchen and there's her flatmate bleeding on the floor, not moving, and [the appellant's] standing over her. That's the first thing that she's faced with. That would, you have thought, given her quite a lot of concern. Secondly, [the appellant] has a history of violence, there will be evidence of that, towards her; that is, towards [KLA], during their relationship and also towards others, and you're going to hear about the reason that his arm's in plaster during the course of this trial. [The appellant] was someone with a temper, he was someone who used a lot of drugs himself, and she had every reason to be afraid of him. So when she was in that position when [the appellant] then made a threat to her, and it's pretty much as clear as this: 'You help me or the same is going to happen to you'.

[159]

You've got a criminal record for assault, haven't you, Mr Russell---Yes.

And included in those assaults are assaults of other people who you knew. Isn't that correct---Pardon?

Included in those assaults are assaults of other people who you knew---Yeah, I think one of them.

One of them---Yeah, one of them was, yes.

All right. Well, 23 November 2006, you committed an assault on a person called Michael Galloway(?). He was somebody who you knew, wasn't he---Yeah. Yeah.

You rode up to Mr Galloway and accused him of discussing his relationships - meaning yours---My relationships, yes.

With other people---I walked up to him. He was on a pushbike, yes.

Yes. And you started striking him to the head with both your fists---No.

And then used your right knee to strike him to the left side of his chest---No. I pushed him off his bike, threw his bike around and told - took off with his backpack.

Well, he put his hands up, didn't he? And he got bruising to the left side of his face as a result of you punching him---No I didn't - didn't---

... You pleaded guilty to that, didn't you, Mr Russell---Yes, I pled guilty to common assault I think it was.

You got a sentence of six months and one day imprisonment, suspended for 12 months. Is that correct---Yes.

13 October 2005, the police were speaking to you about a matter and you didn't particularly want to be arrested by them, did you---I don't know.

Well, you threw your hand back in a backhanded punch with your left fist at------That was at---

- - - one of the officers, didn't you---That's at - no, they gripped me and pulled me out of the van and I nearly went face first.

Mm---That's all I did. I just shrugged my arm basically.

You pleaded guilty to that, didn't you? Assault public officer---Yeah, it was part of a deal thing. But yes, I did.

Yes. And you got a fine---Yes. A $300 fine I think it was.

13 January 2004 you were dealt with in the Busselton Court for assault occasioning bodily harm and you got sent to gaol. Do you recall that---Yes, I do believe so, yes.

And that was another person you knew, wasn't it---Yeah, that was---

A man called Benjamin Hearn(?)---Yeah, he was having relations with our other mate and I just didn't want to know about it. I asked him to stop and it just - ended up getting hit.

Well, you went up to him while he was sitting in a car. Is that right---I was talking to him, yes, cos we were friends, yes.

And you punched him in the jaw with your right fist while he was sitting in the car---Not immediately, but eventually, yes.

While he presumably couldn't defend himself while he was sitting in a car, could he, Mr Russell---No.

... The force of that punch propelled him - Mr Hearn - into the windscreen of the car and caused a crack in the windscreen. Isn't that right---Yes. I think so, yes.

You hit him pretty hard, didn't you---I think that was more from him moving forward than me hitting him.

So he threw himself into the windscreen, did he---Well, he went forward, yes, in the passenger seat.

Right. And you continued to abuse him and told him that he deserved it. Is that right---I didn't - no, I didn't continue to abuse him. I said, 'You shouldn't be doing this to Nick'.

The same way you think Mr Gaunt deserved it. Is that right---No.

And then he had a friend with him at the time, didn't he---Yeah, driving. I think so, yeah.

What did you say to the friend---I asked him for a smoke.

Didn't you tell him to leave or you'd do the same to him---No I didn't know him.

...

I'll move on, your Honour. But that - you pleaded guilty to that offence. Is that right, Mr Russell---Yes.

And you received nine months' gaol. Is that correct---I don't know. I received gaol, yes.

And then you were dealt with also in the Bunbury Court in October 2002 for two counts of assault occasioning bodily harm. Do you recall that---No - yeah, sort of vague - vaguely. It was a long time ago.

It was. A man who you knew called Paul Reynolds(?). Is that right---I don't know a Paul Reynolds off the top of my head.

All right. You rode up to him from behind without warning, struck him to the back of his head, causing him to fall forward. Recall that---No I don't recall that. I don't remember.

Grabbed him around the neck with both arms and pushed his head into the window of a Bedshed store---No. I don't remember that incident.

Tripped him up. Punched him in the back of the head with a closed fist several times. Do you recall that---No I don't recall that incident.

And then you stood up and kicked him while he was on the ground---No I don't remember that one.

You got 12 months' gaol on each of those two counts, didn't you, Mr Russell---I know I've - I've been to [gaol], yes.

But you got sentenced to gaol for that, didn't you---I don't remember that incident.

...

All right. If you could give that to the usher. I'm going to suggest to you, Mr Russell, that you got 12 months' gaol for each of those two offences. Is that correct---12 months concurrent, I think it said, yes (ts 660 - 663).

[185]

Now, I'll return to what I said right at the beginning about separate trials and this is a very, very important - everything I've said is important but this is a very important matter because this is a matter which is going to tax you. You are going to have to ruthlessly put aside some of the evidence you've heard in considering the separate cases. If you don't do that, then a miscarriage of justice is going to occur. Now, although both Mr Russell and [KLA] are before you in the same courtroom and when you retire to consider the evidence, you'll have to read verdicts in respect of each of them, there have, nonetheless, as I've said, been two quite separate and distinct trials in this courtroom over the last couple of weeks; one in respect of Russell, one in respect of [KLA]. When you retire to deliberate, you must consider the case of each accused separately. The State has brought charges against both. Their trials have been heard together because, of course, they arise out of a common background of fact and a lot of the evidence is, indeed, relevant against each of them. However, not all of the evidence that you've heard is admissible in respect of Russell and not all the evidence you've heard is admissible in respect of [KLA] but it is particularly the evidence in respect of Russell that I want to talk to you - I've given you an example of that. You remember when each of the records of interview were tendered, I told you they were admitted in the case against the person who'd made it. They were not evidence against the - in the case of the other person.

... Why? Well, they were made out of court, not under oath, the other person had no opportunity to contradict or say, 'No, that's wrong,' and so they're admitted for what you make of them; Russell's record of interview admitted against him, for whatever you make of it, but you cannot supply a gap, if there is one, in the evidence in [KLA] by resort to that, nor can you do it vice versa. The records of interviews stand alone. They are not the difficulty. You've heard evidence of the details of Russell's record of assaults. Now, they are relevant in the case of [KLA], as I will come to, but they have no relevance in relation to the case of Mr Russell. It may sound surprising but a moment's thought will show you why. They are relevant against - well, not against but in the case of [KLA] because they show the background by which it is submitted on her behalf that she may have been frightened of him. So they can be used by you in her case in that way. But they cannot be used in any way in the case against Russell. If these people were being tried separately, you would not have heard of the evidence of his records of assault and some other evidence that I will refer to. You simply wouldn't have heard about them. As a general rule, that evidence is not adduced before juries. So treat it as if you haven't heard about it. Now, I know that is hard to do. You have heard about it. Maybe you've formed some prejudicial view of him. Well, now that you are really coming to the crunch time - I'll speak more about this shortly in 'prejudice' but now you're coming to the crunch time, put it out of your minds. If you can't put it out of your minds, just be aware whenever you start to think about it, that it is not relation to Russell. Particularly, you may not reason that because he has previous convictions for assault, that in some way he is more likely to have unlawfully killed Ms Shaw. Such reasoning is not only illogical but it's impermissible. The record does not form part of the case against him. He is to be judged solely by the evidence that the State has adduced in his case, not by any prejudice that might arise from evidence that does not relate to his case that on other occasions an in completely different circumstances, he may have been violent towards others.

... That relates to his record but it also relates to something you have heard a lot about and that was the assault on Gaunt a few days before. That has very limited relevance. It has a relevance to the question of the credibility of Perich. Perich's credibility is very much in issue. You're going to have to weigh it up, and the fact that he had witnessed or observed a violent confrontation is relevant to how he may have reacted. What he may have done, how he gives his evidence, are all matters for you to weigh up. It is not, however, relevant to say, 'Well, this shows that the accused was violent shortly before, therefore, he must have been violent on the night.' It simply is inadmissible for that form of reasoning. The State doesn't put it forward that way. The State doesn't say, 'Well, it shows violent tendencies on the part of Mr Russell.'

... The State simply puts it forward as I have explained, as part of the background of the relationship between Russell, Perich and the other witnesses, which of course works both ways. The State uses it to say, 'Well, this is why these witnesses acted this way,' you might more readily believe them. The contrary may be, because they had witnessed this violence, they are more likely to be anti-Mr Russell and more readily be prepared to stitch him up ... But what it does not do, or allow you to do, is to use the evidence of that assault or the evidence of the records in any way to reason that because he has committed these crimes, he therefore must have committed the crime which the State alleges against him, which is an unlawful killing with intent. Now, you'll also recollect that a couple of days ago, I directed you and I do again, but in shorter form because I directed you fully then, the age at which [KLA] and Mr Russell started their relationship is evidence only insofar as it may, from [KLA's] point of view, explain the nature of the relationship as she asserts it to be. It is not evidence - any view that that was an inappropriate age or relationship, has no relevance whatever to the issues in this case. In a sense, what this case is about is what occurred, in the kitchen, on the night. And evidence that can throw light on that in Russell's case is all available for your consideration. Evidence that is admissible in his case and irrelevant to his case and cannot, in any event, throw ... light on that, such as his previous convictions, [KLA's] record of interview, the fight with Gaunt and the relationship with [KLA] are all irrelevant and must be excluded from your consideration when you are considering the case against Russell (ts 912 - 915).

[325]

Something snapped. [Ms Shaw] went absolutely mad. She seized two kitchen knives, one slightly smaller than the other. For no reason at all and with not much more being said than that, she slashed at [the appellant] with one of the knives. Why would she act that way? Among the evidence that you're going to hear in this trial will be evidence from Professor Joyce who's a toxicologist from the University of Western Australia and he will give evidence to allow you to understand that people who have been using methylamphetamine for a long time can develop psychotic rages ... we're going to suggest it was in a methylamphetamine rage, an irrational, almost delusional rage, that poor [Ms Shaw] took it into her mind to attack [the appellant] with knives. Now, a knife goes into a human body very easily. [The appellant] reacted instinctively. He seized her in a bear hug. He couldn't get hold of the knives but he pinned her arms, sort of from her back to the side. He pinned her arms against her. She was holding the knives vertically in the way that I'm demonstrating now. The shorter of the two knives was in [Ms Shaw's] right hand. This struggle took place about the corner of the kitchen that we can see ... At some stage, we know that [Ms Shaw's] had a sharp impact to the back of her head, a single sharp impact ... During the course of the struggle, for some reason, the parties fell to the floor. [The appellant] has [Ms Shaw] in a bear hug, the two knives are pinned somewhere to her body by him. As she's fallen to the floor, her full weight has pressed on the tip of the silver blade which has entered the top of her neck, approximately in the area that I'm indicating. It sliced through the back of her neck ...

... At the same time - she's of course gone down and rolled - the knife, the longer knife which she's held in her left hand, and again these are pinned by [the appellant] to her body, has caused a puncture wound, we think, to the lower right-hand part of her right lung ... Very soon after she fell to the floor, she was unresponsive (ts 30 - 31).

[468]

And then you and [the appellant] lived in Midland and then went down to Busselton for a period of time, is that right---Yes.

Did anything happen in your relationship while you were in Busselton that you recall---We fought a lot.

All right. What was that about---Him using drugs and one of the fights was I found out that he cheated on me.

All right. And what happened as a result of that fight---After he found out that I knew he came home and we had an argument and he punched me on my arm.

Was that the first time that he'd ever done anything like that to you---Yes.

...

What drugs did you see him use---He smoked cannabis and used speed.

All right. And when you say he used speed, how did he use speed---With a needle.

...

You've mentioned that when you were in Busselton, [the appellant] hit you on the arm, was that the only incident of violence in your relationship or not---No.

How many other times would you say during the course of your relationship that there was violence---At least once a week when we had moved in with [Ms Shaw].

All right. And so you've moved in with [Ms Shaw] roughly when? How many months before she died---I think it was about four, four or five.

Okay. So four or five months back from February, so October, November 2007, around about then---Yep.

So during the months that you were with her, you say that there were incidents of violence every week, is that right---Yes.

And when you say incident of violence, what sort of things would [the appellant] do---He would hit me, throw stuff, yell, anything.

All right. So when you say hit you, where would he hit you and how, with what---He would punch me on my arms.

All right. Did he ever punch you anywhere else---He hit me on my head but I don't think it was with a closed fist.

Okay. And you said he would throw things, what sort of things would he throw---The TV remotes, he threw Emily's nappy bag at me a couple of times.

And did you ever get hit by any of those objects that he threw---Yes.

All right. During those occasions when you were hit in the arms or had things thrown at you, was Emily ever in the room during those occasions---Yes.

All right. I want to ask you about an incident that I've already asked [the appellant] about, it was an incident in December 2007 when the police came to the house and took him away. Do you recall that incident---Yes.

All right. What happened before the police came to the house---He was yelling at me and if I was to yell back, he'd get angry and he was punching on my arm and he hit me that hard that I fell back and I smashed my head on our doorframe.

And what happened after that---He stopped after a while, but I was left with a big lump on my head.

...

Did it happen again after that incident---Yes.

Did you call the police or did [Ms Shaw] call the police about any of the other incidents when things were thrown at you or you were hit in other places---No.

Did anything in terms of violence between you ever happen in any place outside of the houses you were living at---Yes.

Where was that---At Belmont Forum.

And what happened there---?---He had told me that he wanted me to wait for him to get home from work but I thought he just didn't care, and I went to the shop. I had finished eating my lunch and he come up behind me and grabbed me by my hair.

Were you on your own at that time---I was with Emily.

All right. So he told you to wait at home but you went to the shop and he came down to the shop and grabbed you by the hair, is that right---Yes.

What happened after he grabbed you by the hair---He eventually let go and he made me go home (ts 752 - 756).

[489]

What about [the appellant] then and now? Well now, clean and tidy, has a nice short, tidy haircut, speaks very quietly. So quietly that he has to be told to speak up. Well, that's not the real [appellant]. The real [appellant] in February 2008 was a violent young man of 24 ... He's a solid bloke, he throws a good hard punch. The sort of punch that knocks out [Mr Gaunt]. The sort of punch that, a few years earlier, had put a friend of his in a situation where his head smashed into the windscreen so hard that it cracked the windscreen. He's a frightening man. He bashed [Mr Gaunt] into unconsciousness in front of several witnesses. Not just punches; kicks, kicks to the head when he's lying on the ground, and then to follow up - because apparently that's not enough to kick and punch a man into unconsciousness - he picked up a car battery, held it above his head. Well, it's not difficult to guess what he was going to do with the car battery ... He's loud, he's argumentative. He argues with [Ms Shaw], he argues with [KLA], and he's using drugs heavily ...

So he's using drugs, he's using violence, and he's got no difficulty threatening to kill people ...

And as I think I've hopefully pointed out as I've gone along, there's every reason to fear [the appellant]. [KLA] is not the only one who fears [the appellant]. It seems that just about everybody he comes into contact with fears him. He frightens [Ms Shaw], when they're talking about the rent, according to Amber Shaw. He frightens [Ms Posavac]. He frightens [Mr Perich] badly. One of the reasons why is because they saw what he did to [Mr Gaunt]. That would just about frighten anyone. But [Mr Perich] has also seen [the appellant's] handiwork out at Hazelmere. He's seen the dead body of [Ms Shaw]. Now, [KLA] is in that situation as well. She's seen the dead body of [Ms Shaw]. She's seen what [the appellant] is capable of, and she's frightened. And that makes sense ... He'd been violent towards her, you've seen the violence towards [Mr Gaunt], and you've heard about it. He'd been violent towards others, and you know that from his criminal record. You know over the period leading up to this, the period of about seven years I think, back to 2001, he had four other assault convictions of various types. Including some assaults so serious, he got 12 months' gaol. He's not the nice, quiet, polite man who appears in court. He's violent, he's aggressive, he's threatening, and frankly he's a scary person to be around (ts 940- 942).

[566]

When [C] came to be tried, he duly put forward his defence of duress and it succeeded and he was acquitted. His defence involved an attack on the character of this applicant. [C] gave evidence and was allowed to put in evidence the previous convictions of this applicant, but he was not allowed to go further than that. Quite properly the judge ruled that general evidence, such as was suggested in [C's] solicitor's notice, that this applicant was terrorising the people on the estate generally, that he had a propensity to commit offences of violence and matters of that sort, the judge ruled was not admissible, and not properly part of [C's] defence.

Of course we appreciate that for the jury to hear of this applicant's previous convictions would make it much more likely that they would not believe any protestations he had made, that he had not taken part in the particular burglary with which he was charged together with [C], and it would make it much more likely that they would believe [C]. That of itself does not make it so unfair that he should be tried together with [C] that the judge should have severed their trials. The normal rule, and this has frequently been reiterated, is that where it is alleged that defendants are jointly guilty of the same offence they should be tried together: (see the matters set out in paras 1 - 167 and 1 - 168 of the current edition of Archbold (1994).)

The fact that one defendant is intending to say that he has acted under duress by the other defendant is not of itself a valid reason for severing the trial of the individual defendants. Indeed, the interests of justice may well dictate that they should be tried together so that the whole truth can be put before the jury. The interests of justice of course demand that a particular defendant has a fair trial, but they also demand that all material matters which can properly be admitted in the circumstances of the particular case are elicited. For those reasons, had we come to it, we should have concluded in any case that the judge was certainly acting well within his discretion in coming to the conclusion to which he did come, and we should have refused leave to appeal on that ground, if indeed we thought there was any valid right to appeal (211).

[672]

371 When Detective Sergeant Marsh gave the evidence in question no basis existed for its admission under s 8(1)(e) of the Evidence Act. The prosecutor did not make an application to the trial judge at any stage of the trial for leave to adduce evidence of the appellant's bad character or disposition (including his prior convictions) under that provision. Although it is arguable that counsel for the appellant's cross-examination of Mr Perich involved imputations on his character, I am satisfied that if the prosecutor had made an application under s 8(1)(e) considerations of fairness would have required the exclusion of evidence as to the appellant's bad character or disposition (including his prior convictions). See Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 56 - 58 (Mason, Wilson, Brennan & Dawson JJ). Further, as I have mentioned, the prosecutor did not, at any time, seek to adduce any 'propensity evidence' or 'relationship evidence' in its case against the appellant either pursuant to s 31A of the Evidence Act or at common law. If the prosecutor had made an application under s 31A to adduce evidence of the appellant's prior convictions for offences involving violence as 'propensity evidence', I am satisfied that the application should have been dismissed in that the probative value of the evidence, compared to the degree of risk of an unfair trial, was not such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The evidence of the prior convictions was not evidence which directly related to the facts in issue at the trial. The admission into evidence of the prior convictions would have created inordinate suspicion against the appellant and undermined the presumption of innocence. The risk of an unfair trial was real and substantial. The application of the common law principles relating to 'propensity evidence' would not have produced a different result. See Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 512 - 513 (McHugh J).

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RUSSELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 246 (10 November 2011)

The facts and circumstances of the appellant's assault convictions

Legislation Cited (3)

Cases Cited (35)