The Queen v Hague [2018] VSC 26

2 Ricky Balcombe was 16 years of age at the time of his death and a member of a group or gang of youths known as the 'Main Stream Criminals', also known as the 'Red Bandanas'. According to the Prosecution in their summary of opening, the members of this gang used to assemble around the mall in Little Malop Street Geelong as well as at local billiard halls. From time to time there was trouble caused as a result and there was some rivalry with other gangs.

3 At the time of the stabbing of Balcombe, the accused Karl Hague was 21 years of age and resided in Corio. He was not part of the gang that Ricky Balcombe was in and was part of some different group.

4 The prosecution case will contend that the fatal stabbing of Balcombe occurred following an attack on a vehicle, in which the accused was located, on 21 April 1995. That attack had resulted in substantial damage to the car and put the occupant, or occupants, in fear. That had, in turn, followed an alleged earlier attack on Balcombe by the accused. The attack on the motor vehicle was thus said to be in retribution for that.

5 The single issue in this trial, if it proceeds, is whether or not the prosecution can prove that the accused was the person who fatally stabbed Ricky Balcombe.

6 Again, according to the summary of the prosecution opening, there are a combination of circumstances which, they will argue, prove that the accused was the killer of the deceased. First, by way of motive, it is argued that the killing was likely to have been in retribution for the earlier attack on the accused or the vehicle in which he was sitting. As I said, that was some days earlier and it was apparently something about which the evidence suggests the accused was very angry. The prosecution also rely on the presence of the accused in the vicinity of the murder scene shortly before it occurred, with the accused being hostile to another of Balcombe's associates shortly before the incident. The prosecution further rely on the similarity of the appearance and clothing of the killer and the accused, and the fact that later on that day the accused apparently changed his clothes. The accused is also alleged to have confessed his involvement in the killing to two witnesses, Janelle Landy and Craig Barlow. Finally, the prosecution will rely on the telling of lies by the accused which, in their argument, will reflect both on the credit of what the accused says about this incident and some of those lies will be sought to be relied upon as implied admissions of his involvement in the offence of murder.

7 Central to the prosecution case is the evidence which is sought to be led from the witness Paul Bellia. As I said at the outset, Bellia was with the deceased when he was fatally stabbed. In essence, and after a chequered history in giving his account of who the attacker was, Mr Bellia now proposes to give evidence that the person who stabbed Ricky Balcombe was the accused Karl Hague, although that has not always been his recorded position. Bellia is the only prosecution witness who identifies the accused as the person who stabbed Balcombe.

8 This ruling is concerned with an application on behalf of the accused, in advance of a jury being empanelled, that the evidence of Mr Bellia should be excluded and I will deal with the merits of that application directly. The submissions proceed on the basis of both limbs of s 137 of the Evidence Act; that is the evidence is not probative but instead inconsistent and therefore unable to rationally affect the assessment of the probability that the accused is the killer and/or the prejudice of admitting the evidence outweighs any probative value it may have.[1]

9 In a separate outline of submissions, the accused has also applied that I should stay the indictment in this matter. It is accepted that the second application only arises for determination once I have dealt with the first.

10 For reasons which will become apparent, this ruling should be read in conjunction with the ruling I gave in relation to the application by the accused for a change of venue of this trial.[2] The reason for that link is that this case and the accused has been the subject of continuing publicity in the Geelong area since the offence was committed. In 1996 he was charged with the murder of Balcombe and in 1997 a committal proceeding occurred resulting in the accused being committed for trial on 8 May 1997. However a nolle prosequi was subsequently entered and so the trial did not commence. In 2017 another indictment was filed in this Court charging the accused with murder and he was taken into custody. The trial of that indictment is about to commence.

11 For the purpose of this ruling, it is necessary to pay some careful attention to some of the detail of Bellia's prior statements and other utterances in an effort to understand what evidence he will give before the jury.

12 At 5.22pm on 5 May 1995, some two hours after the stabbing of Balcombe, Bellia made a statement to a member of the police force about the incident. In part, that statement read as follows:

We (meaning himself and Ricky Balcombe) left the Golden Cue and walked towards Safeway supermarket at Market Square. We were inside the passage that leads past Safeway. We were about 10 metres away from the lifts. I think we were talking about Ricky's bag that he was carrying. As I looked up I saw a guy walking towards us. He was alone and he looked dizzy or stoned. His eyes were all watery. He looked crazy, he looked as if he was going to do something.

Ricky and I didn't say anything to each other. The guy walked straight up to us. He said something like, 'Do you remember me mother fucker'. We didn't say anything to him because he then stabbed Ricky.

The guy had his hands near his pockets. I then saw the guy move his right hand across the front of his jacket. His hand disappeared, either into the inside of his jacket or his jacket pocket, I'm not sure which. The guy then grabbed Ricky round the back of his neck with his left hand and pulled his head forward. As Ricky's head has come forward I saw something silver in the guy's right hand. I saw the guy's right hand and arm move forward towards Ricky's stomach. After this Ricky fell forward on his right side. As Ricky was falling I saw the guy take another stab at Ricky. He may have stabbed him in the shoulder.

The guy let Ricky go and then came after me. The guy still had the knife in his hand. I would say the knife was 22cm in length. There was a bit of a patter on the handle and it was shaped like a tiger knife only thinner. The handle was dark in colour.

He then chased me. I ran back up towards the Golden Cue. When I got near the door of the Cue I stopped and looked around and saw the guy near the entrance to the passage that leads to Safeway. I think he went back into the passage. The door to the passage from the mall was open both when Ricky and I entered the passage and again when I ran back outside.

I ran to the Cue and told Nick Munn, Travis Langley and Steven Cramer. Nick rang down to look for the guy who had stabbed Ricky. I don't know who called the police and ambulance.

13 Later in the statement, Bellia said that he did not know the name of the person who stabbed Balcombe, but on either Monday or Tuesday night of that week he had seen him in the mall. He said:

Someone went up to him and asked him who had stabbed him. I can't remember what else was said. The guy then got punched by someone and everyone then chased him into the market square. I don't know why he was punched or chased. I have seen him before but never taken much notice. I think I was told the guy's name before the stabbing but I can't remember it.

14 At 7:26pm on 5 May 1995 a handwritten document headed "Description of Offender" was prepared and signed by Bellia. It described the offender as Australian and 5'7" - 5'9". The offender's build was slight with dark brown wavy shoulder length hair and tied in a pony-tail. There is no description of the offender's eyes. He described the clothing of the offender as a dark blue sports-type jacket with writing and worn-out blue jeans with sneakers.

15 On 16 May 1995, an identification parade was held by the police. Prior to that, an interview had been conducted with the accused by Detective Senior Sergeant Iddles of the Homicide Squad. The identification parade that was later conducted was viewed by four witnesses including Bellia and no identification was made.[3]

16 It would appear to be agreed that the implication from Bellia's first statement was that the offender was a person named Blair Anson, although Anson is not named in that statement.

17 The next significant development was on Saturday 20 October 1995 when Bellia and his friends attended the Geelong Show. He was with Nick Munn, Corey Munn, Steven Cramer, Matthew Davies and Travis Langley. On 20 February 1996, Bellia made his second police statement and described what happened at the show. In that statement he acknowledged that the person he thought had stabbed Balcombe was the person who had been bashed, possibly on the previous Monday or Tuesday night though it was unclear how long beforehand this had occurred. He said that at the time of making his first statement he was confused and upset and that he realised the offender was not Blair Anson.

18 The witness went on to describe an incident on the night of 21 April 1995 which began with a bashing of Balcombe and then a revenge-style attack by Bellia and others on a brown Holden Kingswood sedan that was parked at the front of a place known as Kev's Carpark. In the course of describing that incident, Bellia said:

We smashed the car up with our weapons and the Kingswood started up. The driver started to reverse the car away. I noticed that the driver had long dark coloured hair, looked to be a white Australian and aged about 20. I got a look at the driver's face and he looked scared.

19 It is to be noted, that in his later preliminary evidence in this Court in December 2017, Bellia is not clear whether Balcombe was actually present when the attack on the Holden Kingswood occurred. According to his evidence, it may have been that he was waiting somewhere else with the person who drove them to the incident.[4]

20 Bellia also described being involved in the first identification parade conducted by police. He said he was scared and did not identify anyone. He went on to describe being taken to the St Kilda Road police complex a few days after that line up and preparing an identikit drawing of the person who committed the offence. He assisted in the preparation of a drawing which he knew was misleading but did not correct it. He then said:

It was about a week or so after Ricky's death that I was talking to Nick (Munn) about the murder. Nick then told me that one of the persons in the brown Kingswood that we trashed was a guy called Karl Hague. I didn't know anyone by that name.

21 Bellia then described an incident in July 1995 where he was threatened by the driver of a red Falcon GT whom he noticed had similar facial features to the person in the brown Holden Kingswood.

22 He then described what occurred at the Geelong show as follows:

I was walking ahead of our pack with Steven Cramer following me. We were near the main entrance and I noticed a guy staring at me. I guess he was about five metres away from me, walking in the opposite direction. There would have been thousands of people at the show at that time and probably several hundred just in that area. I immediately knew that the person staring at me was the killer of Ricky. He was the same person that I saw stab Ricky in the mall. He had cut his hair shorter with a sort of undercut style, but nothing else was different. I never spoke to him and just kept walking. As I passed him I stared back at him and I was sort of shaking a little bit. Steven asked me if that was him, meaning the guy who stabbed Ricky, and I nodded by head yes.

23 In that statement he also asserted that there must have been a discussion with Matthew Davies because he heard Davies tell Steven Cramer that the person he had seen at the show was the accused Karl Hague.

24 Mrs Pamela Munn, who is the mother of Nicholas Munn, in her statement and during a preliminary voir dire in this Court, gave evidence that she saw Paul Bellia after the incident at the Geelong show in October 1995 and he confirmed to her that he had seen a man named Karl Hague at the show and that was the man he witnessed killing Ricky Balcombe.

25 In his statement, Bellia described going to the police on the Monday after the Geelong show to tell them what had happened and speaking to a police officer named Marx and saying 'I had seen the person who killed Ricky at the show and I was sure the person was Karl Hague'.

26 Thus, it is the position that as at 20 February 1996 Bellia had asserted to police that Karl Hague was the person who stabbed Ricky Balcombe but that had not found its way into a formal police statement.

27 On 28 March 1996 there was a further identification parade. What occurred on that day is described by Bellia on 13 August 1996 in a further statement. He agrees that he did not identify anyone in the identification parade and said:

I have been informed by Detective Sergeant Iddles that Karl Hague was in the line-up I viewed on 28 March 1996. I did not identify him or anyone else on that day as I now do not have a vivid recollection of what the person looked like that killed Ricky.

28 On 6 May 1997 Bellia, among others, gave evidence at the committal proceedings in Geelong to which I earlier referred. In that evidence he appeared to be equivocal about the correctness of the police statements that he had made which were shown to him.

29 In cross-examination at the committal, he agreed that his memory of events was now poor and that all he could remember was seeing 'the guy's eyes'.[5] He was asked the following:

So that it is fair to say isn't it that really although you might have had some thoughts at the Geelong Show, you were never able to say, you were never able to say that whoever you saw at the Geelong Show was definitely the man that was involved with your friend Ricky Balcombe, isn't that right?---Yes.[6]

Just listen to the question. What is it that you're now prepared and able to say about the person you saw at the Geelong Show on that occasion outside the steam engine as compared to the person you saw kill your friend in the mall on 5 May 1995?---(No audible response).

You understand the question?---Yes.

Well, what is it you're about to say, if anything?---That it could have been anybody. [7]

31 It appears from additional evidence that had been filed, that on 22 July 1997 Bellia met with Detective Senior Sergeant Iddles and told him that he knew it was the accused who killed Ricky Balcombe.

32 On 30 July 1997, Bellia made a fourth police statement in which he said he had not always told the truth as he was scared of being the victim of 'payback'. He said the person he saw at the Geelong Show was the person who killed Balcombe and he had been told that person was Karl Hague. As to his evidence at the committal, when he said the person at the show was not the same person who killed Balcombe, he said he was afraid of Nick Munn and of retribution. He also said the third statement was not true when he said he did not have a vivid recollection and confirmed he did see the offender in the identification parade, not identifying him because of fear.

33 That is where the matter stood until 23 October 2017. On that date, Bellia made a further statement. That statement is intended to be the basis of the evidence he would give in this trial if it proceeds. In that statement there were a number of reasons why he did not tell the police about what had actually happened, the primary one being that he was scared for his life and for his family. He was told by a number of people not to say anything, that he would be in trouble if he spoke. He also said there was a code which required members of the gang that he was in not to talk to the police. He describes Ricky Balcombe being involved in the purchase of a pound of marijuana from the accused and he understood that Balcombe and others were selling marijuana for the accused.

34 In this statement, Bellia said that on the night the car was smashed up, prior to the stabbing of Balcombe, he overheard others describing the person who was driving that car as being Karl Hague. He said the person who stabbed Balcombe is the same person that he saw in the driver's seat of that car. He also described seeing the accused in the identification parade at the Geelong Police Station and recognised him straight away but was overcome with fear and did not point him out. He gave a similar account of why he did not identify anyone in the identification parade on 13 August 1996. The essence of the rest of the statement is that he proposes to tell the truth, which clearly he intends to describe as the accused being the person who carried out the stabbing.

35 In December 2017, Bellia (and other witnesses) gave evidence on a preliminary voir dire before Jane Dixon J. In summary, in that evidence, Bellia confirmed that until October 2017 he had been too afraid to identify Karl Hague as Ricky Balcombe's killer but had always known that it was him.

36 Cross examined by counsel for the accused about the moment Ricky was stabbed, Bellia agreed that he could not remember if he saw the killer at the doorway of the passageway, where the stabbing occurred, after he had run from the scene and reached his friends,[8] later saying: 'I'm not sure if there was some point when I did look back'.[9]

37 When questioned about the person he saw at the showgrounds he insisted he knew it was the same person who had killed Ricky; stating that he had 'recognised' him, was 'told the name' of the accused and from that was able to 'put it together'.[10]

38 Further, Bellia conceded that before attending at the showgrounds he had used marijuana but maintained that while it was enough to affect his judgement, it was not enough to impair his ability to recognise the accused.[11] He later said that he was able to see the accused clearly at the show as he was within a few metres of him.[12]

39 Mr Bellia was questioned at the voir dire about the evidence he gave at the committal hearing in 1997 and why he had said he could no longer remember what the attacker looked like. His explanation was that he did not want to be in Court at that time as he did not want to 'deal with it' and that he was heavily medicated on the day.[13]

40 He was also questioned about the identification parades and whether he examined 'the faces of the people on the identification parades'. He said he was too scared to look at the time.[14]

41 I will return to the history of Bellia's prior statements and other matters shortly in order to briefly analyse what I consider to be the weakness of his evidence.

42 In relation to the identification evidence of Paul Bellia, it was argued by Ms Gerry, on behalf of the accused, that the evidence he would give is so poor and contradictory that it is without any probative value. It is also argued that the circumstantial identification evidence is not capable of rebutting a reasonable alternative hypothesis consistent with innocence. Ms Gerry urged me to conclude that the prejudicial effect of the evidence so outweighs any probative value it might have that I should exclude it pursuant to s 137 of the Evidence Act. She also argued that there is a real risk that the evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. It was further contended that the admission of the identification evidence is contrary to, or inconsistent with, the right of the person to a fair trial and the manner in which the evidence has been collected and relied upon is so improper that a discretionary exclusion of that evidence pursuant to s 138 of the Evidence Act ought to be applied, particularly given the risks of a miscarriage of justice.

43 Those contentions are in contest so far as the prosecution is concerned. In essence, Ms Flynn submitted that the inconsistency and contradictions in the evidence of Bellia will be central to the assessment of his credibility and reliability. She argued that this was not an identification by name, as Ms Gerry had contended, but that he had identified the accused both as the person who was sitting in the brown Holden in the earlier incident and the person who stabbed Balcombe.[15]

44 Ms Flynn effectively put that these were quintessentially jury issues and that a jury would well understand how to deal with the historical inconsistencies and shortcomings of Bellia's evidence and observe the directions that I would give about the unreliability of Bellia as a witness and the dangers of his identification of the accused.

45 In her submissions, Ms Gerry referred to a number of authorities supporting the submission that I should exclude Paul Bellia's evidence for the reasons she outlined. For my purposes, those relevant principles have been recently and helpfully assembled in the judgement of the Court of Appeal in Bayley v The Queen.[16]

46 In that case, concerning a much more straightforward set of facts, the Court reviewed the authorities concerning s 137 of the Evidence Act noting the effect of the judgment of the High Court in IMM v The Queen and in particular what was said by the majority concerning cases where '..[t]he circumstances surrounding the evidence may indicate that its highest level is not very high at all'.[17] The Court of Appeal concluded that the identification of the accused by the victim from a photograph on Facebook, twelve years after the offences had been committed, was not just 'weak' but 'simply unconvincing' and should not have been admitted by the trial judge.[18] That identification had occurred in the context of the victim knowing that the accused had been involved in another rape where a murder had also occurred and which was the subject of significant publicity. In the Court's opinion, a later photo board identification by the victim was virtually of no probative value whatsoever and the evidence should not have been admitted by the trial judge. The Court noted that '..[t]here are many examples, at trial level, of weak identification evidence having been excluded rather than left to the jury, with strong warnings, for their consideration'.[19] The Court also referred to several cases where at trial level, weak identification evidence was excluded rather than being left to the jury for their consideration with strong warnings.[20]

47 The dangers of identification evidence, with its potential errors and risk of misuse by juries are well known. This is a case where the witness Paul Bellia has seen the death of an associate, at close quarters, on 5 May 1995 and is the only witness to identify the accused as the assailant. In my opinion, the weaknesses in his evidence fall to be assessed by the following features which will include some references to relevant publicity and its possible effect:

(a) The killing of Balcombe as witnessed by Bellia occurred 22 years ago during which time he has been subject to all the influences of associates, local gossip and publicity;

(b) At the time of the killing, Bellia did not know the accused though he believed he had seen him on a prior occasion sitting in a motor vehicle during an attack on that vehicle, in which he had participated;

(c) On the day of the killing of Balcombe, the only description Bellia gave of the attacker in a his later statement is that he had 'watery eyes' and 'looked crazy'. He suggested to the police that the killer was Blair Anson but did not name him in the statement. He is not clear whether he looked back as he ran from the scene; describing himself as being in shock and overwhelmed by the circumstances;

(d) At an identification parade on 16 May 1995, in which the accused participated, Bellia failed to identify the accused;

(e) In February 1996, some nine months after the incident, Bellia made a statement describing the incident that had happened at the Geelong show in October 1995 when he claimed to have seen the man who stabbed Balcombe. He heard his friends say that the man he saw was the accused. He described that to Pamela Munn that evening and police officer Marx the following Monday;

(f) In March 1996 a second identification parade was held. The accused participated and Bellia again failed to identify anyone. In a later statement about that process he said he did not identify anyone on that day because he did not have a vivid recollection of what the person looked like;

(g) In October 1996, the accused was charged with the murder of Ricky Balcombe. Two years after the stabbing had occurred, on 6 May 1997 Bellia gave evidence at the committal in relation to that charge and said, among other things, that the killer 'could have been anyone';

(h) In July 1997, he made a further statement admitting previous lies and claiming the person he saw at the Geelong show was the killer and was Karl Hague. He also said, his evidence at the committal was a lie in several respects;

(i) In February 1998, the murder charge against the accused was the subject of a nolle prosequi and the fact that the trial was not proceeding was the subject of local publicity in Geelong;

(j) In June 2002, local publicity was given to the fact that the accused was sentenced for theft in the County Court;

(k) In 2009, the accused was charged in this Court with attempted murder which was unrelated to this matter. It arose from a shooting at a pizza shop. The committal hearing for that charge was publicised in Geelong in May 2010;

(l) As I described in my ruling on the application for change of venue in this case, on 11 August 2010, Coghlan J ordered that the trial of the accused for attempted murder be transferred for hearing in Melbourne,[21] on the application of the accused. He did that because he considered the extensive publicity about the allegations of murder, that I am now concerned with in this case, would have a significant effect on the prospect of a fair trial. His Honour said, 'I regard the particular insidious [sic] nature of this material as warranting [a change in] the place where the trial would take place';

(m) In June 2011, the accused having pleaded guilty to lesser charges than attempted murder, substantial publicity was given to the sentence imposed on him in this Court in August 2011. That sentence was one of four years with a minimum term of two and a half years. As I noted in my ruling on the application for change of venue for this trial, the front page publicity in Geelong concerning that sentence for firing gunshots into a pizza shop, was linked to this case on the basis that in the opinion of Ricky Balcolmbe's mother if the applicant did not kill Balcolmbe, he knew who did. Thus it was reported that was the reason she attended the sentencing of the applicant on the unrelated matter;

(n) In May 2015 the case was again commanding front page attention in the Geelong Advertiser featuring the applicant quoted as saying that he wanted the killer found also;

(o) In March 2017, substantial publicity accompanied the announcement of a million dollar reward under the headline 'Avenge Ricky's Murder'. Then on 24 March 2017 came the publicity which featured the case again including the accused and carrying the suggestion that witnesses have been 'done away with' because of the importance of their evidence. That was followed by front page denials by the applicant that he was the killer of Ricky Balcombe and more analysis of the murder;

(p) Further in March 2017, a program on the Seven Network was aired under the title 'Million Dollar Cold Case'. It is enough to observe that the clear message from the program was that the applicant was guilty of the murder in the opinion of police, that his alibi had been 'cracked' and that they were 'building a case' against him;

(q) On 23 October 2017, Bellia made his final statement. Apart from the factual matters, he described being diagnosed with paranoid schizophrenia and being placed on anti-psychotic medication. This diagnosis was later changed to one of drug induced psychosis and post-traumatic stress. He acknowledges that he watched the program on the Seven Network concerning this case. That statement also describes an arrangement involving marijuana alleged to have been sold by Balcombe and Nick Munn for the accused which he identifies as another reason why he failed to tell the truth about Ricky's death until now.

48 I must examine the admissibility of this evidence without regard to other circumstantial or direct evidence that may be available to support the prosecution case. My summary above underlines the point made on behalf of the accused about the significant inconsistency in Bellia's various accounts. In my opinion and given the history, the evidence of Bellia has very little weight, with his final definitive position provided 22 years after the death of Balcombe. Honest and convincing witnesses can be mistaken when making identifications, however such a high level of inconsistency in this case undermines the honesty of the witness and heavily impacts the reliability of his evidence. In my view, this evidence, taken at its highest ' is not very high at all'.[22]

49 In addition, and to answer the rhetorical question posed by the prosecutor in argument, there is significant prejudice to the accused in admitting this evidence. This evidence would be the only positive identification of the accused as the attacker of Balcombe and would achieve considerable significance in the minds of the jury. Yet the means by which the evidence would have to be challenged would necessarily involve reference to material, some of which I have just referred to, which would carry substantial prejudice for the accused. That process may need to involve aspects of the prior history of the accused and allegations of other criminal conduct by him. It may also involve examining aspects of the evidence which now, 22 years later, have reinforced the conclusion the witness has come to as to who he saw on 5 May 1995, including the very large volume of historical and contemporary publicity. Over a period of 22 years of various versions given by the witness, in my opinion, it would become extremely difficult to adequately test the circumstances under which he gave his various versions and why he decided to give them.

50 In those circumstances, I have come to the conclusion that the probative value of this evidence is overtaken by the unfair prejudice of admitting it and that judicial directions to the jury would not be sufficient to avoid the significant risk of a miscarriage of justice. Pursuant to s 137 of the Evidence Act I will therefore not permit the prosecution to lead any evidence of the identification by Paul Bellia of the accused as the person he saw stab Ricky Balcombe. Bellia can, of course, give evidence of what he saw on 5 May 1995 to the extent he is able to describe Balcombe's assailant but he will not be permitted to go any further than that.

[1] Evidence Act 2008 (Vic) s 137, sch 2 pt 1 definitions.

[2] In the matter of an Application for Change of Venue by Karl Hague [2017] VSC 716.

[4] Voir Dire Transcript 119 (14 December 2017).

[8] Voir Dire Transcript 89 (14 December 2017).

[9] Voir Dire Transcript 167 (15 December 2017).

[10] Voir Dire Transcript 142 (14 December 2017).

[11] Voir Dire Transcript 152 (15 December 2017).

[15] Preliminary Argument Transcript 68.

[16] [2016] VSCA 160.

[17] IMM v The Queen (2016) 330 ALR 382 [50] 392 quoted in Bayley v The Queen [2016] VSCA 160 [53] 14.

[18] [2016] VSCA 160 [55] 15.

[21] Unreported, Supreme Court of Victoria, 11 August 2010.

[22] IMM v The Queen [2016] HCA 14 at [50] 392.