Murder Case: Admissibility of Medical Consultation Evidence

In a murder case, the court decided that evidence of the accused attending a doctor's surgery on the day of the murder was not relevant and admissible, unless it directly related to the crime. The ruling was based on the Evidence Act 1995 (NSW) s 137.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] (No. 1) [2019] NSWSC 1572 Hearing dates: 11 November 2019 Date of orders: 11 November 2019 Decision date: 12 November 2019 Jurisdiction: Common Law Before: Davies J Decision: See paragraphs [23] and [32] Catchwords: CRIMINAL PROCEDURE - trial - opening address to [NAME] by [NAME] – whether Prosecutor should be permitted to pen case to [NAME] on alternative basis of [NAME] – whether there is evidence of involvement of another person

EVIDENCE – circumstantial [NAME] case – allegation that accused injured in attack on [NAME] -whether evidence of medical consultation by accused later on the day of the murder was relevant and admissible Legislation Cited: Evidence Act 1995 (NSW) s 137 Cases Cited: [NAME] v The Queen [2011] NSWCCA 258; (2011) 215 A Crim R 149 [NAME] v The Queen [2012] HCA 50; (2012) 87 ALJR 32 [NAME] v The Queen (1990) 171 CLR 207; [1990] HCA 51 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 [NAME] v The Queen [2010] NSWCCA 135 The Queen v A2; The Queen v [NAME]; The Queen v Vaziri [2019] HCA 35 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 Texts Cited: Nil Category: Procedural rulings Parties: [NAME] (Accused) Representation: Counsel: [redacted] [NAME] SC (Accused)

Solicitors: [redacted] [NAME] (Accused) File Number(s): 2017/331768

JUDGMENT 1. The accused is charged with murdering [NAME] on 21 or 22 December 1989. [NAME] was attacked in the garage of his home in Woolwich. He received blunt force injuries and a number of stab wounds. The forensic pathologist said that the direct cause of [NAME]'s death was the combined effects of stab wounds and multiple blunt force injuries.

2. The body of [NAME] was found lying face up on the garage floor with his arms outstretched. [NAME] was wearing a brown, suede, leather jacket which had been pulled up over his head. He was also wearing a green cardigan jumper and a light pink coloured shirt. Both had been pulled up from the normal wearing position. His trouser belt was missing and the trousers were undone or torn away at the fly. The trouser belt was bound around the ankles of [NAME], and [NAME]'s head had black electrical tape over the bridge of the nose and mouth.

3. There were drag marks in blood and partial footprints in blood about the head and shoulders of [NAME].

4. The [NAME] has formulated its case on alternative bases: a. The [NAME] alleges that the accused stabbed [NAME] with an intent to kill or inflict grievous bodily harm; b. In the alternative, the [NAME] alleges that the accused was part of a [NAME] with another to kill or inflict grievous bodily harm on [NAME], and that [NAME] was killed during the execution of the [NAME]; c. In the further alternative, the [NAME] calls in aid the "constructive murder" rule. In so doing the [NAME] is setting out to prove beyond reasonable doubt these four things: i. there was a [NAME] between the accused and another to [NAME] at knifepoint; ii. immediately before or after, or during the armed robbery either the accused or his accomplice wounded [NAME]; iii. the accused contemplated that in the carrying out of the common unlawful purpose of armed robbery such wounding might occur; and iv. that the wounding caused the death of [NAME].

1. By notice of motion filed 6 November 2019 the accused relevantly seeks the following orders:

1. That the prosecution not be permitted to allege that the offence charged was committed pursuant to a [NAME] to which the accused was a party. … 3. That evidence of the accused allegedly attending the surgery of [NAME] on 22 December 1989 not be admitted in the trial.

[NAME]

1. In support of the case based on [NAME] the [NAME] relies on what are said to be: i. admissions by the accused to [NAME] before and after the alleged offence; ii. admissions by the accused to [NAME] after the alleged offence; iii. observations by [NAME] and [NAME] that the accused was in possession of a large quantity of cash after the alleged offence; and iv. forensic evidence linking the accused to the alleged offence. Additionally, the [NAME] relies on inferences that can be drawn from the crime scene itself.

1. The relevant test is set out in [NAME] v The Queen (1990) 171 CLR 207; [1990] HCA 51 at 214-215 as follows: [I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the [NAME] in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the [NAME] for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

1. As the High Court pointed out in The Queen v A2; The Queen v [NAME]; The Queen v Vaziri [2019] HCA 35 at [89], that test stands in contrast to the test in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 that is applied in the determination of whether a verdict is unreasonable or unsafe and unsatisfactory. The High Court described the test in M v The Queen as being the more stringent standard of review and was compared to the "lesser standard identified in [NAME]" (at [90]).

2. In [NAME] v The Queen [2010] NSWCCA 135 McClellan CJ at CL (with whom Latham and Schmidt JJ agreed) said at [44]: To my mind, although there was only the slightest suggestion that someone else may have been involved in the fire, I am not persuaded that his Honour was in error by allowing the issue to go to the [NAME]. That did not prevent the Court of Criminal Appeal from reaching a view that the verdict on the basis of [NAME] was unreasonable because, as McClellan CJ at CL said at [46] "Of course that question is a matter for this court and not the trial judge", and his Honour made reference to [NAME].

1. The relevant evidence of [NAME] appears in the following portions of her statement of 19 June 2018:

21. Between about 3 weeks and 2 months prior to the robbery of the bookmaker [NAME]. I cannot recall the exact words but [NAME] told me that he was going to [NAME] a bookmaker who worked at the Dapto Races. A male by the name of [NAME] would come to my unit with [NAME] and they would talk about this Robbery. I sometimes over heard [sic] this conversation but did not get involved in the conversation. I remember this happening twice. This was the first time I met [NAME]. I met his partner one time, I cannot recall where it was but not at my house. I cannot remember her name. I recall each conversation being quite short. 22. [NAME] would go the Dapto races on Thursday nights and would return. On at least one occasion [NAME] and [NAME] went together to the Dapto Races I know this as they were talking about it and both left together to go to the races. I do not know about the other nights if [NAME] went every time or not. He did not tell me the results every Thursday night but near the date of the robbery he told me he had been looking at a particular bookmaker and was watching how much cash he took and he was going to follow him home to find out where he lived. He told me he did this over a few weeks and he was doing this with [NAME]. I do not recall [NAME] talking about it as it was [NAME] doing most of the talking that I recall. The conversation took place at my unit [in] North Wollongong. I did not go to the Dapto Races on any of the Thursday nights whilst they were looking at the male for the robbery.

23. I first met [NAME] through [NAME]. I met him when he came to my unit [in] North Wollongong and they were discussing this robbery. He was known as [NAME] not Tim. I would describe [NAME] as male, about 5'6" tall, short crew cut blonde hair, about 5 years younger than [NAME], white skin, Australian appearance, stocky man and very strong looking and fearsome looking. From overhearing him and [NAME] talking I was scared of this person. I had not seen him use any violence at this time. … 27. [NAME] told me he was going to do the robbery as he was short of money and he needed money to pay his barrister [NAME] for the sexual assault matter coming up to court. At this time [NAME] did not have any money. … 29. After dinner time on the night he was going to do the robbery on the bookmaker. I recall it was just before [NAME] came to my house at [in] North Wollongong with his son [NAME]. I cannot recall [NAME] being there. He told me that [NAME] and him were going to [NAME] the bookie that night. … 31. That night I was in the lounge room and [NAME] was there preparing for the robbery in the lounge room I saw [NAME] preparing his stuff. [NAME] was wearing blue jeans, shoes and a top but he had blue overalls with him. I did not see [NAME] that night so I do not know what he was wearing. … 42. [NAME] did not return until after midnight. I was in the loungeroom. I cannot recall if I heard the car come home or not but I opened the front door and let [NAME] into the house. I did not notice anything about [NAME] at this stage. I think he was wearing the blue overalls. We were both standing in the loungeroom, I cannot recall the exact words [NAME] used. [NAME] said almost straight away he told me what happened. He told me that [NAME] drove his car into the garage and [NAME] and I have gone into the garage we went into the garage and asked him for his money. [NAME] said he was not going to give us the money. [NAME] said words like, I tried to take the money off him and he struggled with me he was a big man and he was quite strong. He did not give me his bag and money and he put up a fight and I stabbed him and I twisted the knife in him and he dropped to the floor. He was very explicit about telling me that [he] twisted the knife. He told me he took the money from the man and he told me there is a good chance he is dead. He told me [NAME] was with him but he did not tell me what [NAME] did. … 44. In addition to the above I recall a bit more conversation [NAME] told me. He told me he had left the [NAME] early and gone to this house to be there waiting for him. He said we had been waiting there for ages a lot longer then [sic] we had planned, he came late. He also told me that he had already given [NAME] $5000 for his part. … 51. [NAME] told me he and [NAME] had done the robbery. They were both there and both took the money.

1. The evidence of [NAME] is in the following paragraphs of his statement of 5 June 2018:

27. In late 1989 [NAME] and I were both in our unit at [NAME]. I cannot recall the date other than late 1989. [NAME] came around and I think he was by himself. The three of us were in the loungeroom area [NAME] was talking to us and he was very serious. That is very unusual for him. [NAME] was telling us about something that had just happened in the last few days, I cannot remember the words 'Last few days' but what he said gave me that impression. [NAME] said words that portrayed to me 'we did a robbery and it went wrong and someone died or the bloke ended up dead, 'He is a [NAME].' I remember [NAME] talking about 'we were involved in a robbery' but he may not have used the word 'robbery'. I remember [NAME] saying some[thing] about 'it went wrong' but may be not those exact words. I remember [NAME] saying someone died or a bloke ended up dead. Again, he may have not used those exact words. I do remember him saying 'He is a [NAME].' I knew it was a bookie murder and I knew it was late 1989 it was at this house and it was in Sydney. I cannot remember if this was from [NAME] or [NAME]. I cannot remember any further conversation about this matter. I cannot recall what happened after that. I was very shocked I felt sick at what I had just heard and it still makes me feel sick about thinking about it now. I cannot recall the day of the week this was. I cannot recall what time of the day it was I cannot even say if it was night or day. … 34. A couple of years later I was at [NAME]'s and [NAME]'s house in [NAME] was there. [NAME] was not there. [NAME] approached me when [NAME] was out of the room. [NAME] was in gaol at the time I think and [NAME] was very serious and tried to raise the subject of the Murder of the Bookie that [NAME] was involved in and [said] "It was [NAME]''. The topic of the conversation was about [NAME]. I took that comment to be about the Robbery and the Murder of the Bookie. I assumed [NAME] knew what I knew as she was so close to [NAME]. I shut her down and did not want to talk about it and let her know this. [NAME] has tried to tell me another time but again I told her I did not want to talk about it. I cannot remember when or where this was. … 36. When [NAME] tied [scil. tried] to tell me about what [NAME] had done she mentioned the name [NAME]. She did not say a surname. At the time it [scil. I] took it to be a [NAME] who knew [NAME]. I do not recall seeing [NAME] and [NAME] together but I knew they knew each other. [NAME] using the word [NAME] as opposed to Tim meant to me a particular person who hung around [NAME] and his Berkley associates. I knew [NAME] had been to gaol. He lived in the Berkley area. I have never spoken to him but I have met him at least once maybe twice. I would describe this person as male, shorter than [NAME] 5'6" tall, solid but not fat build, fair complexion, light brown hair, weird eyes possibly a lazy eye.

1. The evidence of [NAME] is found in the following paragraphs of his statement of 7 June 2018:

33. Around mid-evening, probably 9:30pm or 10pm on either a Thursday or Friday night in December of 1989, I remember because I was working as a houseman at the [NAME] [sic] and around that time I had first met my wife at the [NAME] [sic] Christmas Party. I got home from work and entered our unit at [NAME]. When I walked inside the unit I saw [NAME] and [NAME] in the loungeroom . [NAME] had a very shocked look on his face, he is normally very relaxed but he seemed to be upset about something. [NAME] was walking towards me.

34. I walked further into our unit and as I did [NAME] was walking out. As [NAME] got closer to me as I walked into the lounge room. I could see that [NAME] was very edgy, he seemed agitated, like he was in a hurry. As I neared [NAME] he opened a bag that he was carrying and directly showed the contents towards my face. I could tell that he wanted me to look inside like he was showing off to me. I saw an amount of cash around the size of a soccer ball. It was around twenty bundles of $100 notes that were grey in colour and the size of a toilet roll. They were rolled up very tightly and held with possibly a rubber band. If they were all $100 notes there would have been around $2000 dollars in each bundle approximately.

35. When I saw the money I immediately felt very scared and shocked because what was he doing here showing this amount of money to us. I have never seen [NAME] with that amount of money before, I knew the type of person [NAME] was and I was scared where it came from because he didn't win the lotto. Ever suspicious of [NAME] I remember saying something like "fuck off" and motioned towards the front door because I didn't want that in my place. … 38. [NAME] left the unit, I could see that [NAME] was still in a state of shock and was crying. I asked [NAME] what was [NAME] was up to, [NAME] replied something like "He's told me he's just been involved in a stabbing and a robbery". This was so heavy and shocking, we were so annoyed at [NAME] for putting us in this situation. [NAME] also informed me that [NAME] had bought another oz (ounce) of cannabis off us which back in the day cost around $450. 1. [NAME] for the accused sought to rely on what was said by Latham J in [NAME] v R. Her Honour said: [144] Invariably, a [NAME] case based on [NAME] arises in circumstances where the accused and another, or other persons, are present together at the commission of an offence, and the accused does not perform the act constituting the offence. … [145] In such a straightforward case of [NAME] … the existence of the agreement and the participation in that agreement by the accused are matters of inference established by the circumstances in which two or more persons are participating together in the commission of the offence, and the presence of the accused at the time the offence is committed, coupled with intentional assistance to, or encouragement of, the other participant. … [147] In the instant case, there was a complete absence of evidence of that character. There was no evidence of the identity of a potential co-offender. There was no evidence of conversations between the accused and others that were capable of amounting to an agreement to commit an offence. There was no evidence of acts on the part of the accused, such as the transfer of a large amount of money to another or the purchase of material linked to the fire, that suggested an intention to carry out such an agreement. [148] In my view, the [NAME] was well aware of the difficulty it faced in satisfying the [NAME] beyond reasonable doubt that the accused himself lit the fire. That difficulty is well illustrated by the matters outlined at [118] to [120] of the judgment of the Chief Judge at Common Law. [149] Faced with these irreconcilable aspects of the evidence, the [NAME] sought to sustain a secondary basis for a conviction, which was so tenuous that a no case submission was more than arguable, for the reasons I have given above.

1. Her Honour did not suggest that it was not appropriate for the [NAME] to have opened the case in the alternative as one based on a [NAME]. Indeed, her Honour expressly agreed (at [142]) with the reasons of McClellan CJ at CL. At best, her Honour was suggesting that after the [NAME] had closed its case a no case submission was more than arguable.

2. Similarly, [NAME] relied on what was said by McClellan CJ at CL in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21, a case where it was suggested that in the alternative the accused was guilty by a [NAME] between him and an unidentified man in throwing [NAME] in that case off the Gap.

3. McClellan CJ at CL said at [670]-[671]: [670] Although I would not myself make this finding, it was possible that the [NAME] concluded that [NAME] was the woman seen by Doherty and that the applicant was with her. They may also have accepted the evidence that there was another man in the vicinity who walked with [NAME] and the applicant towards the Gap. However, the evidence is otherwise silent. There is no evidence to indicate the identity of the other man or suggest that the other person remained at the scene at the time [NAME] went to her death, much less participated in the alleged crime. There was no evidence of any conversation between the men or evidence from which it could be inferred that there was an agreement between the applicant and the other man to do anything. There was quite simply no evidence to establish the existence of a [NAME]. [671] The [NAME] submitted to this Court that it was enough for the prosecutor to satisfy the [NAME] that the applicant was at the Gap at the relevant time with [NAME] and that another man was present. Surprisingly it was submitted that "the fact that the second man's identity was unknown, and the absence of direct evidence [I interpolate there was no evidence at all] of conversations between the applicant and this unknown man such as to evince an agreement to commit the offence of murder, does not equate to there being no foundation upon which to leave a secondary basis for the applicant's conviction." As Latham J's reasons in [NAME], with which I agree, make plain, this submission must be rejected. See also the discussion by Beazley JA in [NAME] v The Queen [2011] NSWCCA 258 at [67].

1. The first ground of appeal in [NAME] v The Queen [2011] NSWCCA 258; (2011) 215 A Crim R 149 asserted that the trial judge ought not to have left [NAME] to the [NAME]. It is, therefore closer to, but not the same as, the issue presently being determined; namely, whether the [NAME] should be permitted to open the case to the [NAME] on that basis. ([NAME] was overturned in the High Court but without casting doubt on the correctness of what follows: see [NAME] v The Queen [2012] HCA 50; (2012) 87 ALJR 32 at [4]). Justice Beazley ([NAME] JJ agreeing) said: [68] The appellant submitted that the [NAME] failed to prove any agreement for the purposes of the case based on [NAME]. He contended that there was no evidence of antecedent agreement, nor did the [NAME] contend for one.

Accordingly, any [NAME] in this case had to be based upon some other form of involvement in the crime. The appellant contended that there was no evidence of an agreement arising during the course of the crime being committed, or any evidence from which an agreement could be inferred, or any evidence of encouragement or willingness to assist the appellant in murdering [NAME]. … [72] In my opinion, the appellant's submission should be accepted. There was no evidence to support a [NAME]. There was nothing in C's evidence that proved an agreement, express or tacit, or any assistance or encouragement either by [NAME] of the appellant or by the appellant of [NAME]. Rather, it was evidence of [NAME] reacting, independently, of her own initiative, to a situation in which she thought the appellant's life was in danger. C's [NAME]-examination made even more explicit the independent basis upon which [NAME] acted.

Accordingly, even if the [NAME] accepted C's evidence that [NAME] struck a blow or blows with an axe, that evidence did not constitute evidence of a [NAME] as between [NAME] and the appellant.

1. However, the position is otherwise in the present case. The evidence in the statement of [NAME] is sufficient alone to justify permitting the [NAME] to open the case on the basis of a [NAME]. While the defence case will be that the admissions were never made by the accused, that is ultimately a matter for the [NAME] after all of the evidence has been led. I accept that the form of the evidence as contained in [NAME]'s statement might prompt some objections if it is given in that form, but I am satisfied that sufficient of it is admissible to satisfy the relatively low threshold required by [NAME].

2. There is also the evidence in [NAME]'s statement. I accept that there may be admissibility issues in relation to paragraphs 34 and 36 of [NAME]'s statement. Nevertheless, what is contained in paragraph 27 of that statement seems to me, prima facie, to be admissible and refers to a statement by the accused that "we did a robbery".

3. The evidence in [NAME]'s statement is only probative (to the extent it is admissible) of the accused being involved in the robbery. I do not place reliance on that evidence to support the view to which I have otherwise come that there is sufficient evidence to justify the [NAME] opening on the basis of a [NAME].

4. Unlike the position in [NAME], the evidence in the present case is not silent as to the existence and involvement of another person. [NAME], there is evidence of an arrangement. The person is identified, and the admissions made by the accused show that the other person was involved although precisely the extent of that involvement remains unclear. I note that the evidence tends to suggest he was paid $5,000 for his involvement.

5. As noted earlier, the [NAME] seeks also to rely on inferences from the forensic evidence and the state of the crime scene to suggest that a second person must have been involved. This is said to arise from the matters set out at [2] and [3] above. It is not necessary at this stage to say anything more about those matters because the [NAME] does not intend to open in relation to them. If any evidence is referred to in the opening in relation to the [NAME] it will be confined to the evidence in the statements to which I have already made reference. Whether the [NAME] should be permitted in final address to submit that those inferences should be drawn by the [NAME] will need to be determined before the parties address, in the light of all of the evidence in the matter.

6. I decline to prevent the [NAME] from opening the case in the alternative as a [NAME].

Visit to [NAME]

1. The Medicare records in relation to the accused contain an entry on 22 December 1989 for an item 00023 visit to [NAME]. No further information about the consultation is available. [NAME] died in 2000 or 2001. 2. [NAME]' son, [NAME], worked as a doctor in the practice during the 1990s. He said that when he retired in 2007 the medical records from the practice were all destroyed some seven years later. He was only contacted in 2017.

3. He has provided a statement about his father's system of itemising consultations for Medicare purposes. His statement relevantly reads:

8. On page 8 of 24 of Medicare Report for a [NAME] of DHS - Information report, on the date of service 22/12/1989 [NAME] is listed as the treating Doctor of [NAME]. The Date of Service refers to the date the Doctor treated the Patient, the item number on this date is 00023 - Consultation at Consulting Rooms - Level B. This is the most common item code charged by most General Practitioners for most consultations unless it was an exceptionally long consultation. Bulk billing was common practice for my fathers [sic] medical practice. In 1989 the Medicare was manual system and was posted in by the secretary so this is why the lodgement date is listed later. There is no way now of knowing why [NAME] came to see [NAME] on the 22/12/1989 as it is only listed as 00023 - Consultation at Consulting Rooms - Level B. There are hundreds of different Medicare Item numbers which a GP can claim for specific items. For example if there was a laceration (cut) which needed stiches there was a separate item number for this. [NAME] would generally charge item 00023 regardless of what was involved in the consultation. I know this from working with him and talking about it with him in general conversation. [NAME] could not be bothered with the extra work involved in looking up extra items numbers which could be charged for. He did not care that much about the money.

1. In her statement, [NAME] says at paragraph 53: When I was interview [sic] by police on the 10 October 2017 and I was first asked when [NAME] came home that night if [I] recalled anything about him. I did not remember anything different but when the police asked me if there was anything I noticed about [NAME] again I recalled he had had been hurt in some way and had an injury. I think he had a cut of some sort of cut to his hand [sic]. I do remember an injury or him talking about one but cannot [remember] where on him it was.

1. The [NAME] submits that the whole of the [NAME] case is a circumstantial one and that the evidence of [NAME] about the cut on the hand means that evidence of the visit to [NAME] on 22 December 1989 is a relevant circumstance. The [NAME] seeks to link the cut on the hand to blood found on a sock worn by [NAME] at the time he was killed. The accused's DNA profile matched the DNA taken from the blood in that sock.

2. Paragraph 53 in [NAME]'s statement is the extent of the evidence concerning any injury to the accused. No person gives evidence concerning him attending a doctor.

3. Even if it is accepted that the blood on [NAME]'s sock was the blood of the accused, that would say very little in support of the proposed [NAME] case, even taking into account the evidence that the accused had a cut on his hand, that it was an injury sustained in the attack on [NAME] which required him to attend the doctor's surgery on 22 December. In my opinion it would be entirely speculative for the [NAME] to conclude that the accused attended because of an injury he obtained whilst involved in the robbery and killing. The Medicare item number is of no assistance.

4. The medical records indicate that the accused was attending [NAME] in the weeks and months surrounding 22 December 1989. I was informed that one reason for that was that the accused was serving a sentence of periodic detention, and had obtained a number of medical certificates from [NAME] to justify his non-attendance at the prison where he was serving his sentence. The admission of the evidence of the visit to [NAME] on 22 December might require the accused to disclose the reason for those attendances and, accordingly, the sentence that he was serving at the time. That would certainly be prejudicial to the accused. If that situation arises consideration will need to be given to s 137 of the Evidence Act 1995 (NSW).

5. As the evidence currently stands, I do not consider that evidence of the visit to [NAME] on 22 December 1989 is relevant and admissible.

6. The [NAME] indicated that it would not open the case by referring to the visit to [NAME]. That indication was properly made. The views I have expressed do not foreclose the issue of the admissibility of the evidence of the visit if there is additional evidence given during the trial. However, if the evidence remains as limited as I have set out earlier, I would not permit evidence of the doctor's visit to be adduced.

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Amendments 16 December 2021 - Publication restriction lifted. 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: 16 December 2021