Murder Joint Criminal Enterprise Evidence Admissibility

In a murder case, the court decided that evidence of a defendant's failure to inquire about the victim's welfare during a joint criminal enterprise is admissible if it has significant probative value and does not reverse the burden of proof. The court considered the relevance of the evidence to the defendant's alleged encouragement and assistance in the crime.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] (No. 1) [2015] NSWSC 444 Hearing dates: 20 April 2015 Date of orders: 20 April 2014 Decision date: 21 April 2015 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Question 259 and its answer in [NAME]'s ERISP should not be excluded. Catchwords: CRIMINAL LAW – murder – joint criminal enterprise - evidence – answer in [NAME]'s [NAME] asserts co-[NAME] killed [NAME] – [NAME] claims to have left the room as killing commenced – [NAME] denied enquiring of [NAME]'s welfare at any time – inference of encouraging and assistance – whether probative value outweighed by danger of unfair prejudice Category: Procedural and other rulings Parties: [NAME] (Defendant) Representation: Counsel: [redacted] [NAME] (Defendant)

Solicitors: [redacted] [NAME] (Defendant) File Number(s): 2012/175139

Judgment 1. [NAME] has been charged with murder, alternatively being an accessory after the fact to murder. He has also been charged with breaking and entering a dwelling house and committing a serious indictable offence therein, namely larceny, alternatively that he did steal in a dwelling house.

2. The Crown wishes to tender his ERISP made on 7 June 2012. The parties have agreed on which questions and answers should be omitted from that ERISP with the exception of question 259 and its answer. So that this question and answer can be put into context I will set out questions 256 to 260 with their answers. Q256 [NAME], I'll just bring you back to when you, when you, you stated that you saw [NAME] strangling which you said with a belt. Was that correct? A Yeah, a belt or a leather strap or something. Q257 And then you said, what, sorry, what was [NAME]'s, how, how was, how was she? Did she say anything or -- A No. Q257(sic) -- what, what was she doing? A She was trying to strangle her like, she had like, a, like, a fucken, a smile on her face. Q258 What do you, what do you think she was, she was trying to achieve by that? A I'm not sure. DETECTIVE SENIOR CONSTABLE GROVES Excuse me. DETECTIVE SENIOR CONSTABLE KING Q259 At any time did you become aware that or did you inquire about the welfare of [NAME] or Marlboro as -- A No. Q260 Did you see her any other time after, after that? A Yeah, when they were fucken trying to take her out of the house. As I said I'll make a full interview and statement at a further date. I'm not willing to, you know, to give one now until I find all the evidence and that come through. And then I'll make a full statement. I'll tell youse everything.

1. Counsel for [NAME] objects to question 259 and its answer on two bases. First, it is said that the question and answer are ambiguous as to the time about which the question is asking, with the result that the evidence is misleading and confusing. Secondly, it was submitted that the jury may impermissibly reason that there some duty or obligation on [NAME] to act to assist [NAME] in circumstances where there is no duty or obligation to do so and that this failure is somehow indicative or probative of his guilt. In that regard the jury may think that the failure demonstrates bad character which would be prejudicial to [NAME].

2. The Crown's principal case against [NAME] is that he was responsible for strangling [NAME]. That is expected to be the evidence given by the co-[NAME] whose evidence at her sentencing hearing was to that effect. The Crown's alternative case is that there was a joint criminal enterprise and, even if the co-[NAME] did the strangling, [NAME] was present encouraging and assisting that act. The evidence is relevant to this alternative case.

3. The Crown accepts that there is no duty on [NAME] to have assisted [NAME] nor to have made any enquiry about her welfare. The Crown says, however, that his failure to make such an enquiry is one piece of evidence that would enable an inference that he was in fact encouraging and assisting in the killing of [NAME].

4. Counsel for [NAME] submits that, if that is the purpose of its tender, the evidence contained in the answer has very little probative value and that is outweighed by the danger of unfair prejudice to [NAME] because of the impermissible way that the jury may reason.

5. In my opinion, the question and answer are admissible and ought to be received into evidence. In the first place the question and answer are relevant to a fact in issue, namely, whether [NAME] was engaged in a joint criminal enterprise with the co-[NAME] to kill [NAME].

6. I do not consider that any ambiguity about the timing to which the question is directed results in unfair prejudice. The question and answer must be seen in the context of the surrounding questions. The events involving [NAME] and [NAME] commenced a day or so earlier when they first met. Those events included sexual relations between [NAME] and the co-[NAME] on the day before, the travelling to [NAME]'s parents' house, sexual relations between [NAME] and [NAME] in the bedroom at the house, and the killing involving at least [NAME] and, on the Crown's case, [NAME].

7. Although the words "at any time" which introduced the question could theoretically encompass any of those events, there is nothing to suggest any problem with [NAME]'s welfare (apart from the fact that she with the others had ingested drugs and alcohol) until the events in the bedroom of the house involving the use of the belt around her neck. A reading of questions 256-258 make that clear. Question 259 did not introduce a new topic. It is noted that it was the same police officer who asked questions 256-260.

8. As far as the jury's misusing the question and answer is concerned, the context of the events is also relevant. [NAME] was not an uninvolved bystander such as a person at a street brawl. Until the time the co-[NAME] entered the bedroom and attempted to strangle [NAME] with the belt [NAME] was involved in sexual activity with [NAME]. In those circumstances a failure to enquire about [NAME]'s welfare at that time in the events is a relevant matter for the jury to consider when coming to a view about whether or not [NAME] was encouraging and assisting the co-[NAME] in her attempts to kill [NAME].

9. The jury will certainly need to be told that there is no general duty or obligation on the part of a person to assist [NAME] in those circumstances nor to enquire about her welfare. The jury will need to be told that they cannot use his failure to enquire as a sign of his bad character to draw a conclusion of guilt. However, his failure to make an enquiry has some significant probative value for the jury to determine whether or not he was engaged in a joint criminal enterprise. The question and answer is not, in the context of the events that happened, unfairly prejudicial to [NAME]. However, even if there is some unfair prejudice, such unfair prejudice does not outweigh its probative value.

10. Nor does the admission of the question and answer reverse the onus of proof, as counsel for [NAME] asserted, on the basis that it requires [NAME] to give an explanation for why he did not make such an enquiry. The mere fact that evidence tends to call for an explanation does not of itself involve reversing the onus. For example, evidence is likely to be given by the co-[NAME] that [NAME] killed [NAME]. On one view, such evidence calls for an explanation by [NAME]. The evidence is not inadmissible for that reason alone. The jury must decide if they accept the co-[NAME]'s evidence regardless of any explanation, or lack of it, from [NAME]. The jury will be told that [NAME] has no obligation to explain or say anything.

11. Similarly the jury will be directed as I have indicated earlier. No reversal of onus arises.

12. Question 259 and its answer should not be excluded from the ERISP.

********** 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: 25 May 2015