R and Stokes [2000] NTSC 47

PARTIES:	THE QUEEN

	and

	TREVOR JOHN STOKES

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	SCC9919706

DELIVERED:	27 June 2000

HEARING DATES:	14 June 2000

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:
	Crown:	R Wild, QC with J Martin
	Defendant:	J Tippett

Solicitors:
	Crown:	Director of Public Prosecutions
	Defendant:	Dalrymple and Associates

Judgment category classification:	C
Judgment ID Number:	Mil00231
Number of pages:	9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R and Stokes [2000] NTSC 47
No. SCC9919706

	BETWEEN:

	THE QUEEN
	Crown

	AND:

	TREVOR JOHN STOKES
	Defendant

CORAM:	MILDREN J

REASONS FOR RULING

(Delivered 27 June 2000)

Mildren J:
[1]	On 8 June 2000, I published my reasons for ruling that evidence to be given by a witness proposed to be called by the Crown, Christopher Cathcart, concerning conversations he had had with the accused at Shenannigans Irish Pub Restaurant & Bar in the early hours of Sunday 6 June 1999 were admissible and able to be led by the Crown in evidence at the accused's trial.
[2]	On 13 June 2000, counsel for the accused, Mr Tippett, asked me to review this ruling in the light of a factual error appearing in my published reasons.  I heard further submissions from counsel on 14 June 2000.  Later that day, I ruled that the evidence was admissible and able to be led by the Crown.  I said I would publish my reasons at a later time.  I now do so.
[3]	The factual error identified by Mr. Tippett appears in paragraph [7] of my earlier reasons when I said that "the Director of Public Prosecutions submits that it [the relevant evidence] is highly relevant because...both the accused and the deceased were in the bar that evening...".  I accept that it is not the Crown case that the deceased was in Shenannigans bar that evening, notwithstanding what the accused is alleged to have initially told McLaughlin.  The Crown case is that the deceased met up with some friends near the Top End Motel shortly after 9:30 pm on Saturday 5 June 1999.  They spent an hour or two at Squires Tavern and thereafter went to the Victoria Hotel, arriving shortly prior to midnight.  The Crown case is that the deceased stayed at that hotel and probably left the vicinity of the hotel shortly after 2:17 am, and was last seen to be walking in a northerly direction along the Smith Street Mall towards Woolworths.  At 3:30 am, he was seen lying at the end of Packard Place, Larrakeyah, where he was later found at 6:00 am to be deceased.  The circumstances concerning the discovery of his body, the nature of the attack on him and the fact that his wallet was missing are discussed briefly in paragraph [4] of my reasons published on 16 March 2000.  The Crown case is that the attack on the deceased, which led to his death, occurred at some time between 2:17 am and 3:30 am on the morning of 6 June 1999.
[4]	The Crown case is that the accused, with his friend and travelling companion McLaughlin, and two Australian acquaintances, Christopher and Scott Cathcart, had together been drinking at Shenannigans Pub on Mitchell Street in the late evening of 5 June.  The accused and McLaughlin had met the Cathcart brothers in Kunanurra, Western Australia and having returned to Darwin, were staying at an adjoining camp site at the Shady Glen Caravan Park in Winnellie.  At about 1:30 am, the accused had a conversation with Christopher Cathcart and asked him to help him to "roll" another individual (not identified to Christopher Cathcart and not alleged to be Mr Bebensee) said by the accused to be present in Shenannigans and to have a wallet full of cash.  Cathcart's evidence at the committal was that he was not interested (and presumably indicated this to the accused).  A few minutes later (which could have been anywhere from two to fifteen minutes later) Cathcart said that the accused approached him again saying that he was leaving and to "give us a hand", or something like that, to which Cathcart replied, "No, fuck off".  Cathcart's evidence in his statement to the police is that, "I thought at the time that it was just the piss talking because what I knew of him, he just wasn't like that at all".
[5]	Chris Cathcart and the accused left the pub at about closing time, i.e. 2:00 am.  The last Chris Cathcart saw of the accused, he was walking with an English girl he had met at the pub in a northerly direction along Mitchell Street, towards where the yellow car was parked and which the accused and his companions had used to drive into town earlier the day before.
[6]	I refer also to the summary of the evidence the Crown intends to lead which is outlined in paragraph [2] of my Reasons for Ruling of 16 March 2000 and to the submissions of the Crown referred to in paragraph [7] in my Reasons for Ruling of 8 June 2000 (except for item (a)).  The evidence of Cathcart of the two conversations he had with the accused relating to his suggestion that they should "roll" the unidentified person in the pub, was made at a time no longer than two hours before the deceased was attacked and robbed and probably somewhat less than that.  The evidence also establishes that the deceased was attacked with an implement of a kind to which the accused had access, as an implement of that description was in the yellow car at the relevant time, and therefore in the accused's possession.  It is also the case that it was the accused who drove the yellow car back to the Shady Glen Caravan Park sometime on the morning of 6 June, prior to 3:30 am.
[7]	Mr Tippett repeated his previous submission that the evidence of the conversations ought not to be admitted because they do not show that the accused intended to "roll" the deceased.  However, I consider that the evidence is relevant because it shows that at a time within less than two hours of the attack on the deceased, the accused had expressed an intention to rob someone.  Although the geography is different, as Mr Tippett puts it, the accused was in a relatively near proximity to the place of the attack at a time immediately before the probable time of the attack; he had access to a weapon of the kind used to carry out the attack; he was at the time short of money.  I consider that in these circumstances, the conclusions I reached in paragraphs [8], [9], [10] and [11] of my reasons of 8 June 2000 were correct and that I should not depart from them.
[8]	Mr Wild QC, submitted that the evidence was also admissible for another reason, viz., it was evidence capable of corroborating the evidence of McLaughlin.  I did not deal with this submission previously as I then thought it better to delay any ruling on that issue until later in the trial when all the evidence is in and also because the submissions made on that question were very brief.  I will now deal with that issue as it has been raised again by Mr Wild QC, and it bears upon a submission made by Mr Tippett which I will also have to deal with, namely that because the evidence is "propensity evidence" it ought to be excluded unless I am satisfied that there is no rational view of that evidence consistent with the innocence of the accused: see Pfennig v The Queen [1994-5] 182 CLR 461 at 482-3, per Mason CJ, Deane and Dawson JJ.
[9]	In Doney v The Queen [1990] 171 CLR 207 at 210-212, Deane, Dawson, Toohey, Gaudron  and McHugh JJ rejected a submission that evidence could not corroborate an accomplice's evidence unless all reasonable hypotheses, other than guilty of the offence charged, were excluded.  As their Honours said, at p211:
It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt.  In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: see Baskerville; Reg v Hester.
[10]	In Doney, the evidence sought to be led by the Crown was a note in the handwriting of the accused directing a taxi driver to go to a garage at a suburban address, to collect some boxes therein and take them to a van at an intersection at Balmain and there leave them in the van if it was unattended.  The boxes were part of a container containing cannabis resin which had arrived in Sydney some four weeks earlier.  The accused was charged with being knowingly concerned in the importation of the cannabis resin.  Counsel for the accused argued that the note could not corroborate the accomplice's evidence because, although it linked the accused with the contents of the container, it did so only at a time when the importation was complete; it was consistent with the accused's involvement in the distribution of the cannabis resin, but did not implicate him in the importation.  The High Court rejected this argument on the basis that it was open to the jury to reason that it was likely, although not inevitable, that the person who wrote the note was exercising dominion over the boxes and was therefore knowingly concerned in the importation.  It was noted by their Honours that this was circumstantial evidence, but that it was well settled that corroboration may be in the form of circumstantial evidence.  The accused in that case was not charged, so it would appear, with possession of the cannabis resin nor with any offence involving its distribution.  It was not suggested (and the Court's unanimous decision is inconsistent with) the proposition that, because the evidence also showed that the accused may have been involved in other offences or discreditable acts, it ought to have been admitted only if no hypothesis was reasonably open other than the accused being knowingly concerned with the importation: see also Harriman v The Queen (1989) 167 CLR 590 at 632 per McHugh J.
[11]	In my opinion, the evidence of Cathcart is admissible as circumstantial evidence which is capable of corroborating the evidence of McLaughlin.  Cathcart's evidence cannot be viewed in isolation.  It takes its character from the surrounding circumstances, including the proximity in time and place when the words alleged to have been uttered by the accused were said to the deceased's death; the fact that he was robbed and the fact that the accused had access to a weapon at that time of the morning, similar to that used to kill Mr Bebensee - an instrument apparently used by those who are tenters or campers.  I would therefore admit it on that ground as well.  
[12]	Mr Tippett submitted that the evidence was propensity evidence and as such it required to pass the test of admissibility laid down by the High Court in Pfennig, supra.  There is no definition of what is, and what is not, propensity evidence.  Cross on Evidence (Austn. Edn., Eds D Byrne and JD Heydon) uses the term to refer to (paragraph 21001): 
that part of the law of evidence concerned with the rule which prevents a party, usually the prosecutor, from leading evidence in chief showing the discreditable disposition of another, usually the accused, as derived from the discreditable acts, records, possessions or reputation of the latter.
The term "disposition" is used by the authors to "denote a propensity to act, think or feel in a particular way" (ibib, fn6).  Mr Tippett's argument was that even if the evidence was being led to prove motive, or intent, or to corroborate the evidence of McLaughlin, as it was propensity evidence, it nevertheless needed to pass the Pfennig test.  So far as propensity evidence which is led to corroborate the evidence of an accomplice is concerned, I do not accept that argument, although the evidence must nevertheless amount to more than mere propensity evidence: it must still satisfy the test of admissibility relating to corroborative evidence.  In the present case, however, I do not consider that the evidence can be characterised as propensity evidence at all.  Mr Tippett's argument is that it is propensity evidence because the evidence showed only that the accused wanted to rob a particular person, not the accused.  If that were all the evidence showed, it would not be relevant to any issue in the trial, and would be mere propensity evidence.  In my view, the evidence intended to be led shows, as I have pointed out before, that at a time and place in close proximity to the homicide, the accused, who was short of money, wanted to rob someone and that he had possession of the kind of implement used in the homicide, an implement which is not a common household implement such as a knife.  The position may be looked at in this way.  If A expresses an intent to B to rob C and C is robbed shortly thereafter, clearly B's evidence would be admissible if there is other evidence to show A robbed C.  If A expresses an intent to B to rob C, but D is robbed shortly afterwards, ordinarily B's evidence would not be relevant.  But if the evidence suggests that A's intent is to rob someone (not necessarily C), I consider that the evidence is not propensity evidence at all, but evidence directly relevant to A's intent if there is other evidence to show A robbed D.  It is relevant to show motive and intent and if the evidence that A robbed B is given by an accomplice, it is admissible to corroborate the accomplice's evidence.
[13]	If I am wrong and this evidence is properly characterised as propensity evidence and the test in Pfennig must be satisfied, I consider that in any event the evidence satisfies that test.  Mr Tippett has submitted that a reasonable explanation consistent with innocence is that the accused did not seriously intend to rob anyone and that he was not serious.  The submission was based on Cathcart's evidence that he did not believe the accused would do such a thing and that it was the "piss talking".  There is nothing in the evidence to show that the accused was not serious, other than Cathcart's belief based upon his assessment of the accused's character, a person he had known for only a matter of weeks.  The fact that the suggestion was repeated within a few minutes excludes this as a rational possibility.
[14]	To the extent that there is a residual discretion to exclude the evidence on the basis that its probative value is outweighed by its prejudicial effect, I consider the evidence to be highly probative and decline to exclude it on any discretionary grounds.
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