R v Knight (No 2)[2009] QSC 449

SUPREME COURT OF QUEENSLAND

1. Mark Dempsey Knight, Wesley Robert Williams and Wayne Thomas Robertson, are charged with the murder of Robert James Buckley. They have pleaded not guilty.

2. This is an application brought by the accused pursuant to s 590AA of the Criminal Code. The prosecution wish to lead evidence of statements made by the deceased to the witnesses proposed to be called concerning his relationship with the accused men, particularly Williams. The accused object to the admission into evidence of these statements.

3. The basis for the objection is that the evidence is plainly hearsay and does not satisfy the necessary preconditions namely:

1. That the conditions of s.93B(2) of the Evidence Act 1977 (Qld) be met; and

2. That the evidence be such that a “relevant inference may logically and reasonably be drawn” from it (per Barwick CJ in Wilson v The Queen)^[1] that advances the Crown case. 

The Lead Up to the Alleged Murder

4. The deceased was found hanging in a shower block cubicle in 10 block at the Rockhampton Correctional Centre (then known as Etna Creek) on 16 June 1999. Each of the accused, along with 30 other prisoners, was a resident of, or had access to, 10 block at the time of death. The deceased had been a resident of 8 block from 16 March to 7 June. The accused Williams had been resident there until 24 May before being moved to 10 block. The deceased had then been moved from 8 block to the Detention Unit (often referred to as “DU”) and then to 10 block. The deceased was in the detention unit from 7 June to 14 June before his removal to 10 block. The accused Knight was in the detention unit while the deceased was resident there and as well was released to 10 block each day.

The Disputed Witnesses

5. The witnesses proposed to be called were fellow prisoners of the deceased and the accused and, in one case, a prison guard. Each of the prisoner witnesses proposed to be called was, so far as their statements show, on good terms with the deceased. In each case the disputed statements of the deceased were made at a time when the deceased had no reason to mislead the witness and reason to make his state of mind and its cause accurately known. The reason for that state of mind is related by the Crown to the evidence concerning Williams’ physical violence towards the deceased and his intimidation of the deceased as reported by the deceased and as witnessed by some of the other witnesses.

Section 93B preconditions

6. Section 93B of the Evidence Act 1977 provides, so far as is relevant, as follows:

“93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

(1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

(a) made a representation about the asserted fact; and

(b) is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

(2) The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

(a) made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

(b) made in circumstances making it highly probable the representation is reliable; or

(c) at the time it was made, against the interests of the person who made it.

…

(4) To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.

(5) In this section—

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

representation includes—

(a) an express or implied representation, whether oral or written; and

(b) a representation to be inferred from conduct; and

(c)a representation not intended by the person making it to be communicated to or seen by another person; and

(d) a representation that for any reason is not communicated.”

7. The Crown rely principally upon subsection 93B(2)(b), i.e. that the statements made by the deceased were “made in circumstances making it highly probable that the representation is reliable”, but to a lesser extent ss 93B(2)(a) and (c), for the admissibility of the statements. In my view there is no realistic basis for an argument that the statements can be received under sub-paragraph (c) as against interest.

8. The principal defence contention is that the requirements of subsection 93B(2)(a) and (b) concerning reliability are not met because the deceased, on the Crown case, has made statements on other occasions directly conflicting with those that the Crown wish to lead.

9. The statements on which the Crown wishes to rely are in a variety of forms and from a dozen different witnesses. I will detail them later. The effect of those statements is that the deceased was concerned about the accused Williams, that Williams was placing pressure on him and had caused physical violence to him, that this was done in the context of Williams wishing to gain access to certain gold that Williams believed the deceased had, and that the deceased did not want to go into “ten Block” (a reference to a block in the prison where Williams and the other accused were located). Some statements were made shortly after physical force had apparently been used by Williams on the deceased.

10. The defence submission is:

“The potential unreliability of the representations is demonstrated by the evidence of Colless that he witnessed [the deceased] make a complaint about Williams [one of the accused], at Williams’ request, so that Williams could be moved from Eight Block…and by contrary statements by [the deceased] saying he is happy to go to Ten Block…  Thus, it cannot be shown that any statement by [the deceased], either complaining about Williams or asserting the desire not to go to Ten Block, was not simply a device by [the deceased] for his own purposes (eg. to stay in Eight Block).  Accordingly it is submitted that the statements are not admissible.”

11. The Crown’s contention is that the reference to “circumstances” in both subparagraph (a) and (b) of subsection 93B(2) does not extend to include statements made by the deceased on other occasions. Thus, the fact that there were inconsistent statements made, are properly relevant to the reliability of the evidence as to whether the deceased made the statements the witnesses report. But those inconsistencies are simply irrelevant to the issues that need to be brought into account in assessing whether it is “highly probable” that the statements are reliable or in assessing whether it is “unlikely” that the statements are a fabrication.

12. The Crown contend that the test to be applied in determining the “reliability” conditions for admissibility is that from R v Ambrosoli^[2] and adopted, at least implicitly, by Fraser JA and the other members of the Court in R v Lester^[3]:

“(a)The statutory test is not whether, in all the circumstances, there is a probability [Section 93B(2)(a)] or a high probability [Section 93B(2)(b)] of reliability, but whether the circumstances in which the representation “was…made” determine that there is such a probability.

(b)Evidence tending only to prove the asserted fact may not be considered.

(c)Prior or later statements or conduct of the person making the previous representation may be considered to the extent that they touch upon the reliability of the circumstances of the making of the previous representation – but not if they do no more than tend to address the asserted fact or ultimate issue…”.

13. The Crown contends, in my view accurately, that the defence submissions “address the asserted fact or issue” and not the circumstances that are relevant at this point.

14. Mr Lynch, who appeared for Williams, drew my attention to R v Conway^[4] as an example of a decision in which prior statements were brought into account in assessing whether the relevant statements were made in circumstances that made it “highly probable” that they were “reliable” (see at [145]).  However, the decision there concerned a set of facts where the prior statements were very closely connected in time to the statements that the Crown was to lead.  All statements were made at a time when the deceased was “plainly confused and possibly still disorientated” and the account she gave differed on each occasion that she gave it.  Hence the Ambrosoli test set out above would permit the reception of that evidence under paragraph (c).

15. I am doubtful that statements made by the deceased on an occasion quite separate to the occasions in respect of which the Crown wishes to rely have anything to do with the “circumstances of the making” of the statement in question. Indeed in Lester Fraser JA rejected the argument that inconsistencies between the witnesses, who were purporting to give evidence of the same conversation, was relevant to the question of whether the preconditions to admissibility laid down in s. 93B were satisfied.^[5]

16. In any case here the Crown can point to reasons, consistent with the Crown hypothesis, why the deceased made the statements that the defence rely on as being contradictory. For example a wish to get Williams out of 8 Block (where the deceased resided) is completely consistent with the Crown case as to the state of the relationship between the deceased and Williams. The reported expressed acceptance of the move to 10 block (where Williams was by then residing) reflected other evidence of the accused Knight’s winning of the deceased’s confidence that Knight had smoothed things over with Williams – yet again reinforcing that the relationship between the deceased and Williams had been acrimonious.

17. These defence submissions go to the question of the reliability of the evidence given, not to the relevant question of whether the impugned statements were “made in circumstances making it highly probable the representation is reliable”. The defence made no other submission as to why the statements of the deceased failed to satisfy the preconditions of s 93B.

18. I will deal with each of the impugned statements and the circumstances surrounding the making of them. None involve any circumstance, that I can see, that detracts from the apparent reliability of them. The defence could not suggest any such circumstance. I am satisfied that the statements were made in circumstances making it “highly probable” the statements were reliable or “unlikely” to be fabrications.

Relevance

19. I turn now to the second of the defence contentions – that even if the statements can properly be received pursuant to s.93B of the Evidence Act 1977 no relevant inference can reasonably and logically be drawn from the impugned statements that assists the Crown in its proof.  Section 93B(4) makes plain, as does the decision in Lester, that this is a necessary precondition to the acceptance into evidence of the statements. 

20. The statements that the Crown wishes to lead go to establishing the nature of the relationship between the deceased and the accused men, particularly Williams.^[6]  That such evidence can be admissible at common law in a criminal trial is well established.  In R v Raye^[7], Mackenzie J., in dealing with a case involving a deceased and an accused who had been in a de facto relationship for some years, said:

“Evidence of the state or of a domestic relationship may be relevant for a number of purposes.  One is to assist in the choice between an innocent or incriminatory explanation of a particular event (Wilson v The Queen (1970) 123 CLR 334, 339, 344; R v Self [2001] QCA 338); or in proving the intent with which an act was done (Self, R v Chevathen and Dorrick (2001) 122 A Crim R 441); or in proving the accused’s statement of mind (R v Anderson (2000) 1 VR 1).  Further, in Anderson, where the defences relied on were provocation and self defence, it was said at 12:

‘In cases of this kind, where the parties have been living together for a substantial period of time preceding the events in question, courts have traditionally admitted evidence of the pre-existing relationship between them provided that it has a bearing on the facts in issue.  This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred.  Thus such evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self defence or provocation.’”^[8]

21. In Wilson v The Queen, an authority to which Mackenzie J. referred, Barwick CJ spoke of the reception of evidence concerning the relationship between a murdered person and his assailant in the following terms:

“Nonetheless the sentence in the judgment of Kennedy J in that case [a reference to R v Bond [1906] 2KB 389] from which I now quote whether or not so intended, is, as a statement of relevance, in my opinion, of universal validity and is not limited to any particular aspect of the relationship of which his Lordship spoke. 

‘The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.’”^[9]

22. The Crown submits that the statements on which the Crown wishes to rely are admissible because the statements do one or more of the following:

1. place other evidence in an intelligible context;

2. provide evidence of the state of mind of the accused;

3. provide evidence of the state of mind of the deceased;

4. provide evidence of motive;

5. rebut defences and hypotheses consistent with innocence;

6. provide evidence of intent.

The Defence Case

23. The defence argument is that the only admissible use that the Crown can make of the disputed evidence is to establish the deceased’s state of mind ie. his fear of Williams (principally) and that fear is irrelevant to any issue in the case, unless the Crown can link that fear to something said or done by Williams by direct admissible evidence. In this case, it was submitted, there was no, or no sufficient, direct evidence to establish the nature of the relationship between the deceased and Williams or any of the accused. Mr Lynch, who presented the argument, submitted that it was impermissible to rely on the contents of the statements themselves to establish the truth of them. Rather it is necessary that there is evidence independent of the statements to prove their truth. Therefore the Crown arguments suggesting the statements can provide proof of motive or intent must necessarily assume the truth of the contents of the deceased’s statements and that, it is submitted, is an improper use of s 93B.^[10]

24. In support of his submission Mr Lynch drew my attention to a passage from the reasons of Fraser JA in Lester where his Honour said:

“If the jury accepted that Ms Lester believed statements that the appellant had arranged for someone to kill her that might justify an inference that their relationship was a very unhappy one if it is first assumed that those statements were true.  But that assumption could not be made because this evidence was not admissible to prove that those statements were true.”^[11]

Analysis of R v Lester

25. In my view these submissions misunderstand the effect of the decision in Lester.  Lester was a case of double hearsay.  The witnesses in Lester gave evidence of statements made by the deceased that an unidentified third party had told the deceased that the accused had hired someone to murder her and that as a result she was in fear of the accused.  Thus there was a rational basis for her fear directly connected by her to a cause unrelated to any action of the deceased. Ms Lester was in fear of the accused not because of anything that the accused had said or done to her, or because of anything she had said or done to him, but because of what third parties had told her he had said or done. 

26. The admission of the statements in Lester could establish three things – that Ms Lester was in fear of the accused, that third parties had told that the accused had hired a “hit-man” to kill her, and that her fear was caused by what the third parties had told her.  However none of those things was relevant to any issue in the case. The second of those facts did not establish that the accused had hired a hit man – it did not cease to be an inadmissible hearsay statement merely because s 93B was used to place it before the jury.  Ms Lester could not have told the jury those facts in order to establish the truth of the contents if she was alive and could not do so by means of s 93B when dead.  That is the point of Fraser JA’s remarks concerning the use that could be made of the statements relied on by Mr Lynch.

27. As to the first and third of the facts - Ms Lester’s state of mind and its cause - in the circumstances it was not relevant to any issue in the case – unlike the cases of R v Matthews^[12] and R v Gojanovic (No 2)^[13] discussed by Fraser JA in Lester at [54] where the victim’s state of mind was directly relevant to an issue. It could only become so if it was referrable to an act or statement of the accused (thus evincing an attitude of, or readiness to, commit violence towards her) or if her state of mind could impact on the accused (by causing him to want to harm her) and so provide evidence from which a logical and reasonable inference could be drawn that added to the probabilities that the accused caused her murder. 

28. The ratio of Lester is, in my opinion, contained in those passages of the judgment of Fraser JA that followed his analysis of R v Clark^[14] where after discussing the evidence in that case, his Honour said:

“The challenged evidence [in Clark] thus bore upon ‘the dealings and mutual attitudes of the appellant and the deceased, their ‘past dealings and mutual attitudes’, their ‘bad relationship’, their ‘hostile relationship’, or the appellant’s ‘dealings with and attitudes to the deceased’. 

In my opinion, in that case as in this, evidence of the deceased’s fear could not possibly cast any light on any of those matters unless that fear was attributable to something said or done by, in the presence of, or otherwise communicated to the accused.”^[15]

29. Indeed, contrary to Mr Lynch’s submissions, Lester demonstrates both that the deceased’s statements are admissible as to the truth of their contents and that direct and admissible evidence of conduct of the accused which could provide a basis for the fear held by the deceased does not necessarily make the statements admissible.

30. That s.93B permits the received statements to be used to establish the truth of their contents is evident both from its own terms and from its application in cases such as Lester where Fraser JA pointed out:

“The judge at the pre-trial hearing held that evidence of Ms Lester’s statements that someone had approached her and conveyed the reported statements was evidence of representations to that effect within the meaning of s.93B(1)…On that footing the evidence that Ms Lester said that those statements were made to her would be admissible of the truth of that fact, that is, the fact that those statements were in fact made.”^[16]

31. Similarly in R v Clark Heydon JA pointed out that a statement received into evidence pursuant to the analogous provisions of the Evidence Act 1995 (NSW) that:

“I did see her with a black eye and she did tell me that Nobby [the accused], as they used to call him, had given her a black eye”

provided proof that the accused had given the deceased a black eye.^[17]

32. The Crown submission is that, generally at least, it did not seek to lead evidence of the statements as proof of their contents but rather as going to the state of the relationship between the parties. I am not entirely clear what is meant by the submission (given that the Crown wish to use the representations to further its proof in relation to motive and intent) or where the Crown would draw the line. I shall illustrate my view as to the effect of the receipt of the disputed statements by reference to one of them - a statement made by the witness Donovan. The statement attributed to the deceased is that he had told Donovan “that … Weso [a reference to Williams] was standing over [him] for some gold [he] had from the break-in”. Under s.93B, if its preconditions are satisfied, admission of that statement into evidence establishes that the deceased had gold from a break-in (or at least that Williams believed that he had such gold), that Williams was standing over him, and Williams’ stated reason for doing so.

33. I assume that the Crown wish to achieve the admission into evidence of the contents of the statements to the extent that s 93B would allow, where that provision is relevant.

34. The fact that statements do not become admissible merely because other evidence might exist that would provide a rational basis for the expressed fear is demonstrated by the decision in Lester.  In that case the accused had assaulted the deceased about 11 months before her death, attempted to murder her de facto partner, and indeed was eventually convicted of that crime, and there was direct evidence from the murderer that he had been hired by the accused for the sum of $10,000.  The difficulty for the Crown in Lester was that there not only was another rational basis for the fear of the accused, but the deceased directly attributed her fear to that alternative basis.  She based her fear of the accused on the statements made by unidentified third parties that he had hired a hit man.  The accused had not told her that, nor were those statements made to the deceased in his presence, nor were those statements or its effect on the deceased ever communicated to the accused, on the evidence that was available to the Crown.

35. To adapt Fraser JA’s words, where the evidence proposed to be led here goes only to the deceased’s fear of Williams then the question is whether the challenged evidence bears upon ‘the dealings and mutual attitudes of the accused men and the deceased, their ‘past dealings and mutual attitudes’, their ‘bad relationship’, their ‘hostile relationship’, or the accused’s ‘dealings with and attitudes to the deceased’ and evidence of the deceased’s fear will only be able to cast light on any of those matters if that fear was “attributable to something said or done by, in the presence of, or otherwise communicated to the accused”.

36. That is not to say that that is the only basis on which the disputed evidence might be received. I accept the Crown submission that the statements can be received if they might logically advance the Crown case by putting other evidence into context, demonstrating motive or intent, or discounting the probability of innocent explanations and hypotheses or potential defences.

Issues in This Case

37. The Crown’s hypothesis is that the accused men murdered the deceased as part of their attempt to obtain gold that they believed the deceased had access to. The murder may have been done either to intimidate Ryan, the deceased’s co-accused in the robbery when the gold had been allegedly obtained, or as part of a process of intimidating the deceased or extracting information from him.

38. As I understand the state of the evidence in this case the defence will argue that the known facts are consistent with the deceased having committed suicide and, in any case, that the Crown cannot establish to the requisite standard that the accused were the persons who caused the death of the deceased.

39. The Crown contends that there are other possible defences and hypotheses consistent with innocence e.g. accident, that it must exclude. While it seems unlikely that such defences will be advanced it hardly lies in the mouth of the accused, who presently preserve their right to keep all possible defences open, to criticise the Crown, as was done, for “jumping at shadows” in endeavouring to cover all bases. Those arguments might be relevant to the exercise of a discretion to exclude otherwise admissible evidence to ensure a fair trial^[18], if it appears that the evidence has little probative value but a significant prejudicial effect. But they are not relevant at this stage of the process.

40. The state of mind of the deceased will be directly relevant to the issue of suicide. Otherwise the state of mind of the deceased has relevance only to the extent that it can reflect the state of the relationship between him and the accused and hence the attitude of the accused towards him if that logically advances the Crown case.

41. I turn now to the particular statements that are in issue. I have ignored the passages that the Crown concedes are inadmissible.

Statements of Donovan

42. Jason John Donovan met the deceased through his cell mate Kev Ryan. Ryan and the deceased had been jointly convicted of the robbery that resulted in their incarceration. They had told Donovan that they “had gotten away with a heap of jewellery and cash”. Donovan reports, and it is not contested, that he had become “pretty good mates” with the deceased. He had heard arguments between the deceased and Ryan about Ryan telling Williams about the gold they had obtained from the break-in and the deceased telling Ryan “to shut up about it all”. That is the background to the disputed statements which are as follows:

“45.They had both told me that it was because Weso was standing over them for some gold they had from the break-in. 

46. Both Rob and Kev had separately told me that Wes Williams had given them a few beltings to force them to hand over the gold somehow.

47. Rob was doubled up in [a] cell with a bloke called Bloomfield.  He was Weso’s nephew and this made things pretty tense because Weso had a reason to go into Rob’s cell all the time.

…

61. He (ie. the deceased) told me he was glad that Weso was out of the block and not standing over him any more about the gold.”

43. “Weso” is a reference to Williams. “Rob” is a reference to the deceased. “Kev” is a reference to Ryan.

44. The Crown do not propose to lead evidence of what Ryan told Donovan rather of what the deceased told Donovan and the statements must be read in that light.

45. In my view these statements are logically probative of a fact in issue. They establish the nature of the relationship between the accused Williams and the deceased. They assist the Crown in its proof of motive and intent. They establish William’s attitude to the deceased namely that he was prepared to use physical violence towards him, that he was “standing over” the deceased and that he had a reason for doing so. The jury could be asked to draw the inference that the disposal of the deceased gave Williams a very powerful influence over Ryan to give up to him the gold that Williams believed Ryan could access. As well the evidence would put into context later statements made by the deceased about his great reluctance to go to Block Ten where Williams resided. The statements assist the Crown in establishing its proof of the identity of the perpetrators of the alleged murder. The last statement suggests that the attempted intimidation of the deceased by Williams had persisted until Williams was moved out of the block in which the prisoners resided (Eight Block). The evidence also helps to put into context the direct evidence that Donovan can give reflected in the following paragraph:

“53.I had also seen Weso talking to both Rob and Kev in Eight Block.  On these occasions Weso was laying down the law to them.  They both looked pretty scared when he spoke to them. I saw this a few times in Eight Block.”

46. Whether the impugned evidence is capable of providing support for logical and reasonable inferences relevant to issues in the trial must of course be judged in the light of all the evidence available to the Crown. The impugned evidence enables the Crown to advance the argument that what Donovan saw that he relates in paragraph 53 of his statement is not a one-off isolated and inexplicable event but rather reflective of an intimidatory relationship, with Williams as the aggressor, which was on-going. It puts into context other evidence about the deceased’s fear of going from the detention unit to Ten Block where Williams was located.

47. This evidence does not suffer from the problem that the impugned evidence in Lester had.  The statements attributed to the deceased, according to their terms, based his concerns about Williams on the conduct of Williams towards him, not on the reported statement of others about Williams.

48. In my view the “asserted facts”, to adopt the wording from s.93B, contained in the representations made by the deceased and which the witnesses are reporting, include Williams’ stated attitude towards him, Williams’ intimidatory conduct towards him, and his desire to obtain gold from him. They each advance the Crown case by providing support for logical and reasonable inferences consistent with the Crown hypothesis.

49. Further objection is taken to evidence proposed to be called from Donovan concerning statements made to him by the deceased whilst Donovan and the deceased were resident in the detention unit. The impugned statements are as follows:

“109.I remember on one occasion when Chris Anderson came to let Knighty out, both Rob and me asking Anderson if I could go into Ten Block instead of Rob and he could go into Seven Block.  A straight swap.

…

Anderson said that would not be happening.

…

125. In the first days we were in the DU Rob and I made a pact that we do whatever it took to keep him out of Ten Block.  I knew Rob [had] genuine fear and said to me a few times Weso was going to get him when he got into Ten Block.  I never took it further to what he meant.

126. We decided that when the time came we would both refuse to leave the DU if Rob was to be put into Ten Block.  If they were going to force him then we were going to commit some sort of offence to get us landed back in the DU to avoid him going into Ten Block.  We really made a firm decision to do this. 

127. After being reassured by Knighty many times that things would be okay for him with Weso and in Ten Block, Rob quietened down and agreed to go there when the seven days were up.  Knighty really laid it on how he would look after Rob and that he Knighty, had definitely sorted everything out with Weso. 

128. There was still a fair bit of talk between Rob and Knighty about the gold and the other stuff he had buried where it was and how to get it.

129. I remember clearly the day we were let out of the DU.  It was the last time I saw Rob.  Rob and I had been discussing about what we were going to do.

130. Rob told me he was okay now to go into Ten Block due to Knighty.  He also told me that he was really looking forward to calling and seeing his missus and the young baby.  He said he would be okay and not to worry about the plan to play up and get kept in the DU.  It was his call as I had no dramas I was just happy to get out.”

50. “Knighty” is a reference to the accused Knight.

51. The evidence concerning the deceased’s reluctance to go to ten Block and the plans and attempts made to avoid that move are each connected by the deceased to his fear of Williams. That is made explicable by Donovan’s evidence of what he had witnessed between Williams and the deceased and what the deceased had told him that Williams was doing to him. There was no other apparent rational basis for the fear.

52. The evidence also goes to the relationship between the deceased and Knight. Knight had won his confidence. The relationship is of significance - the deceased had a person that he could trust in the form of Knight within Ten Block. That explained his belated acceptance of the decision to place him there. It assists the Crown in meeting any argument from the defence that the acceptance of the move into ten block indicates that his relations with Williams were not of concern to the deceased.

53. As well Donovan’s statement, if accepted, goes to prove that the deceased had informed Knight of the existence of the gold and of the difficulties that he’d had with Williams. The evidence assists the Crown in their proof of motive - that Knight knew of the existence of the alleged gold and might wish to attain it by intimidating the deceased, or killing him and thereby intimidating Ryan

54. The defence can argue that there had been no contact between the deceased and Williams since 24 May (ie. about three weeks before the move in to 10 block) and hence the logical connection between Williams’ earlier conduct and the deceased’s fear of Williams cannot be drawn. However the converse is logically open and at least as likely and a reasonable interpretation – that despite the passage of time the deceased remained in fear of Williams thereby reflecting the seriousness of Williams’ conduct towards him in the past and his certainty that Williams’ conduct would be renewed when placed in the same residential block.

55. The statements contained in paragraph 130 assists the Crown in its proof that it is unlikely that the deceased committed suicide. One “asserted fact” is that “he was really looking forward to calling and seeing his missus and their young baby”. His wish to see his family is at odds with any intention to end his own life.

56. Donovan’s statements as to what he witnessed Knight say and do and what he heard the deceased say to Knight are not of course hearsay. Those observations are admissible if relevant to an issue in the Crown case. Those observations provide some evidence of motive and assist the Crown in establishing their theory of the case that it was to the advantage of the accused men to have the deceased bought into ten Block where the accused had access to him rather than he remaining in the detention unit.

57. In my view the evidence proposed to be led from Donovan is admissible.

Robinson

58. Henry Edward Anthony Robinson shared a cell with the deceased when the deceased moved into Eight Block upon his entry to prison. His statement indicates that he became friends with him and gave him advice as to how to cope with prison life. After a few weeks Robinson was moved to another cell but says that he continued to have daily contact with the deceased.

59. The disputed evidence is as follows:

“21.When I moved out from the double-up cell with Elvis [a reference to the deceased], another prisoner moved in but I can’t recall his name.  He was another young lad.  It was around this time I started to see Wes Williams speaking to Elvis a bit in the yard of Eight Block.  These initial conversations seemed to be amicable.  I asked Elvis about what was going on between him and Weso.  Elvis told me that he had told Williams about the gold.  I said ‘you are a fucking idiot’.  I said ‘get away from Williams because you will get yourself in the shit’. 

22. Elvis went on and told me that Wes Williams was arranged to send someone around to his missus’ place in Rockhampton to get the remote control car with the three bars of gold.  He told me that Williams would go him 50% on what they got from the gold. 

…

24. A day or so after this conversation Elvis and I were talking and he told me that he had told Williams that the deal was off.  I noticed straight away around the block that Williams’ attitude to Elvis also changed.  Being in such a confined space like a prison block you notice things quickly and also you tend to keep an eye out for any trouble. 

25. I notice that instead of being semi-amicable like he had been before, Williams would instead scowl at Elvis.  When walking past like getting meals or going to the gate to get out of the block Williams would bump him and make threatening comments as he walked past him.  One time I heard a thump and turned to Williams walking away from Elvis in the yard.  At this time Elvis was hunched down there was no one else around.

…

Elvis looked away when I looked at him.

…

31. Elvis was far from happy when he got told to move [a reference to moving to Ten Block].  He was really worried – you could see it in him.  I actually heard Elvis say to one of the prison officers who I remember from a jail – her name was Pippa Weeks, words like ‘if you send me down there they’ll kill me’.  I’m pretty sure these are the words he said or something very close to it.

32. Later on, the time came for Elvis to go, he and his cellmate put on a turn because they did not want to go.  A big bunch of screws, prison officer, came into Eight Block to force them to go.  Elvis said just about the same thing out aloud – [I] heard it from further away from where the officers were, he said ‘You can’t put me there, put me anywhere else, they’ll kill me down there.’  I am pretty sure these are the exact words he used or very close to it.  There was a fair lot of officers there including a senior and they made him leave Eight Block. 

36. I was walking down to the gym with Macca and Alan Mason.  The gym is between the oval and Ten Block.  Pretty well it is in the front of the detention unit.  I spoke to him through the fence of Ten Block.  Stop into other blocks and talking was pretty common and we all used to do it if we had mates in other blocks.  Elvis was standing in Ten Block and we stopped for a chat.  I remember Elvis looking frightened and I asked him straight up: ‘How’s it going in here mate?’  Elvis said: ‘I hate it in here can you get me out’.  Alan Mason who was a long term prisoner knew a few of the guards pretty well said he would have a bit of an ask around to see what he could do.” 

60. The evidence in the paragraph numbered 21 above is in my view admissible to the extent of the report by Robinson that the deceased told him that the deceased had told Williams about the gold. That is the “asserted fact” for the purpose of s.93B. It assists the Crown in their proof of a motive and assists in their rebuttal of the probability of a suicide explaining the deceased’s death.

61. However I cannot see that the remainder of the paragraph can be admitted. The balance consists of the opinion of Robinson and reflects Robinson’s view of Williams and his potential for violence. It might provide some evidence of a probable state of mind of the deceased but that state of mind suffers from the defect of the evidence in Lester – it is not referable to anything “said or done by, in the presence of, or otherwise communicated to the accused” (per Fraser JA in Lester at [68]). 

62. In my view the contents of paragraph numbered 22 are admissible when taken in context with paragraphs 24 and 25. Thus the “asserted facts” of which the deceased had knowledge and which he reported to the witness Robinson were that he had an arrangement with Williams whereby Williams would obtain 50% of the proceeds of the gold and that he told Williams that the deal was off. This puts into context Robinson’s direct observations of Williams’ attitude to the deceased that at this time Williams changed from being friendly towards the deceased to scowling at him, bumping him and making threatening comments as he walked past him. His hearing of a sound consistent with a blow, then observing Williams walking away from the deceased with the deceased hunched over as if he had been attacked and with no one else around is admissible evidence of the probability that Williams inflicted violence on the deceased. It is not of course propensity evidence but it is evidence of the relationship and consistent with the motive that the Crown advanced that Williams was prepared to use violence towards the deceased to get at the gold.

63. As well the evidence of that violence towards the deceased puts into context the statements of other witnesses of the state of mind of the accused towards the deceased. In my view the evidence is admissible.

64. The statements set out in paragraphs numbered 31 and 32 establish the “asserted fact” of the deceased’s belief that if he was sent to ten Block he would be killed. The Crown contend that this is admissible relationship evidence under the common law principles as it evidences the state of mind of the deceased, assists the Crown in rebutting defences and hypotheses consistent with innocence and provides evidence of intent. Further, it is submitted, it is admissible pursuant to s.93B under all subparagraphs. The difficulty with the submission is that the state of mind of the deceased is not, of itself, relevant to any issue, any more than the deceased’s state of mind was in Lester.  It can only become relevant if the state of fear that the statement reflects can be shown to have been induced by the conduct of the accused. 

65. The issue, as it seems to me, is whether the statement can be rationally linked to something said or done by the accused to the deceased. The connecting link, if there is one, must depend on the evidence available as to the conduct of the accused towards the deceased leading up to the statement.

66. Against the Crown submission is that the deceased had had no contact with Williams for about two weeks. The statements were allegedly made at the time that the deceased was to be moved from Eight Block, which occurred on 7 June.

67. However, in favour of the Crown submission is the evidence of Williams’ violence towards the deceased. In addition to the evidence of Robinson, that I have already discussed, there is other evidence from one Michael Douglas Colless. Colless’ statement does not make it clear when the first relevant events he observed transpired although it would seem it was at least some weeks after the deceased commenced to reside in Eight Block. He observed Williams threatening Ryan, the deceased’s co-accused, saying “Don’t fuck me around – you’ve got no idea what I will do”. Ryan responded by, according to Colless, back peddling and saying “I’m not fucking you around, I’m telling you the truth, I can’t help what Rob [the deceased] does with it”. Williams replied, “He can’t fucking do anything with it – it is already mine because you promised it to me”. Williams then was observed by Colless to walk to the deceased who was sitting on a concrete path outside his cell. This was only a few cells away from where Williams had been yelling at Ryan. Williams walked up to the deceased and kicked him in the shoulder. Colless describes it as a “hard kick”, like a rugby conversion kick, and it made [the deceased] go onto one side. He heard Williams say to the deceased, “You better keep your mouth shut and mind your own fucking business”. Colless then spoke to the deceased shortly after about the incident.

68. Colless then relates that about two weeks later he observed the deceased to be in Ryan’s cell when Williams walked into the cell and started yelling. Colless could not see into the cell from his position. His recollection is that Williams said, “Have you told anyone anything lately?” And then, “Does he know anything about it?” There was then “a loud crashing sound” and “some sounds of someone being hit”. Colless’ description is “it was pretty loud and clear and there were grunts and groans. I did not actually see anything but I have seen enough violence in my life to know the sounds”. He then heard Williams yell, “Don’t treat me like an idiot you cunt”. Colless reports that Williams was moved out of Eight Block not long after these events. He left Eight Block on 24 May.

69. Whilst the deceased does not expressly attribute his fear that he would be killed to anything that the accused had said or done there is no other apparent reason for the statements other than the conduct of Williams. There is no evidence of any violence, or even conduct of an aggressive nature, by any other prisoner towards the deceased – quite to the contrary, all witnesses report that he got on well with other prisoners. Statements by other witnesses show that the deceased expressed concern to them about again being exposed to Williams at this time – indicating that Williams’ prior conduct was having an ongoing effect. In my view it is legitimate to bring these matters into account.

70. That it is not necessary that the statement itself provide the link is evident from the evidence that was held to be admissible in Lester pursuant to s 93B. The received statements were made by the deceased to her solicitor.  They included statements of her fear of the deceased. She did not directly attribute her fear to acts of the deceased. However, her expression of fear was made after relating to her solicitor past episodes of violence towards her by the accused.  The Court held that it was reasonable to draw the inference that her expression of her fear of the accused was based on those acts of violence towards her.^[19] 

71. In this case, whilst there is no contemporaneous linking of the statement by this witness to any act of the accused by the deceased, in the absence of any other apparent cause, and in the context of other evidence, it is reasonable to infer that the reported fear arose out of the reported and observed acts of violence of Williams towards the accused and Ryan when Williams last had contact with the deceased not long before.

72. The background that Colless provides of quite significant violence by Williams towards the deceased (or perhaps to Ryan in the deceased’s presence) shortly before Williams left 8 block provides evidence from which the jury could logically and reasonably infer the degree of animosity that Williams had expressed to the deceased.

73. From the Crown’s perspective the probative force of the statements is found in the support the statements give to the inference that Williams’ dealings with the deceased were so frightening that they had an ongoing effect so as to cause the deceased to form the view that he was at risk of serious harm in ten block. The statements add to the weight of the evidence that this death was not a suicide.

74. Further, the statements assist the Crown in its proof that at that point in time the deceased had no wish to die. The implication of the statement is that he had a strong desire to live. It goes to diminish the prospect that the deceased committed suicide.

75. I have a discretion to exclude the evidence “if…satisfied that it would be unfair to the person charged to admit that evidence” as it is expressed in s.130 of the Evidence Act 1977.  The words used here as related by the witnesses have of course the potential to cause considerable prejudice to the accused.  I have attempted to weigh that against their probative value.  The jury are considerably less likely to be prepared to draw the inference that the Crown seeks if the evidence were restricted to one or two casual acts of violence by Williams towards the deceased.  What these statements do is indicate that the deceased was terrified as a result of the conduct of the accused towards him (in the absence of any other rational explanation for the statements).

76. On balance it seems to me that the statements are an important link in the Crown proof and, despite their prejudicial nature, ought to be admitted into evidence.

77. The statement set out in paragraph numbered 36 above was presumably on the day before the deceased’s death. He was only in Ten Block for two days. I assume the witness would relate the fact, if it be so, that the conversation occurred on the day of death. The witness can state his observation that the deceased “looked frightened” as establishing the state of mind of the deceased if that is relevant to any issue. Here however the look is associated with the statement by the deceased, “I hate it in here, can you get me out?” This, I think, does suffer from the problem identified in Lester – where the deceased attributes his state of mind to a particular source, and does not state that the source is the conduct of the accused then there is some other rational basis for the state of mind.  Whilst the statement is consistent with the ongoing effects of the conduct of Williams it is also potentially consistent with other causes.  One particular one that comes to mind is that the Ten Block was full of the worst prisoners in the jail all of whom might well have been frightening.  By this time the deceased had been exposed to them. There is no evidence that he had been so prior. The fact that the deceased did not say anything about Williams, or any of the accused in particular, suggests that nothing untoward had happened to that point.  I do not think that the statement is particularly probative of any matter and should be excluded on that ground.  If I am wrong in that, it at least has some potential to be prejudicial and, given its limited probative value, I would not be persuaded to allow it into evidence in any case. 

McIlwain

78. Mark Andrew McIlwain was a fellow resident of Eight Block at the time the deceased was resident there.

79. The disputed statements read as follows:

“14.I remember Elvis telling me that he was worried that an inmate in Eight Block at the time called Wes Williams also knew about the outstanding gear [a reference to the proceeds of the robbery committed by the deceased] and was getting pressure off Wes.

15. Elvis told me one time that Weso was dropping it on him to sign over the remote car to one of Weso’s mates or relations, I don’t remember which one.  Elvis said Weso knew about the gear hidden in the remote car and was pressuring with threats to sign it over.

16. Weso is the name people used to refer to Wesley Williams. 

17. I didn’t see it happen but I spoke to Elvis and Kevie Ryan one time and they told they had copped a touch-up off Wes…I just told them to keep their heads down and avoid him. 

…

21. I remember the day he was being moved to the DU, he had his swag on his back and he told the officers several times that he didn’t want to go down to Ten Block.  I can’t remember who the officers were that were taking him down to the DU but there was a lot of them there because he had been refusing to go into Ten Block. 

…

24. I do remember speaking to Elvis about this and he stated that he did not want to go into Ten Block and he didn’t know why he was going to Ten Block in the first place.”

80. The statements in the paragraphs number 14, 15 and 17 are hearsay statements as to the relationship between the deceased and the accused Williams. If received into evidence they go to establish that the accused Williams was putting pressure onto the deceased, that this pressure was in the form of physical violence and at a level that concerned the deceased, and the reason for the pressure. This evidence bears upon the dealings between the accused and the deceased, that there was a hostile relationship between them, and that the hostility emanated from the accused Williams. It logically advances the Crown’s case.

81. The evidence in the paragraph numbered 21 is a combination of the witnesses’ direct observation and the deceased’s statements concerning his state of mind – that he didn’t want to go down to Ten Block. The connection with the accused is that Williams was a resident of Ten Block. The witnesses’ observation that a number of officers were needed to move the deceased from the detention unit to Ten Block is some evidence of the deceased’s level of concern. The Crown concedes that it cannot lead direct evidence from McIlwain as to why that large number of officers was present but the inference is available.

82. The statement in the paragraph numbered 24 again reflects the deceased’s attitude to going into a block in which Williams was resident. In the context of other evidence it shows the level of his ongoing concern reflecting, the jury can reasonably infer, the level of violence and intimidation previously inflicted on him by Williams.

83. In my view the challenged evidence is admissible.

Colless

84. Michael Douglas Colless was a fellow inmate in Eight Block when the deceased became resident there. His statement indicates that he was on very friendly terms with the deceased.

85. The Crown concedes that the contents of paragraphs 23, 29 and 30 of the statement are inadmissible. The first disputed statement is as follows:

“31.Elvis told me that he himself had hidden some gold in the remote control of a toy car and he was using his own hidden stuff to get some pot…I told Elvis to be very careful and not to talk to me about it anymore.  I remember this clearly because when I was talking to Elvis, Weso was staring at me from across the yard.”

86. Colless alleges that this conversation occurred about a half hour after the events that I previously described^[20] when Williams was threatening Ryan, when Ryan told Williams that he “can’t help what Rob [the deceased] does with it” and when Williams immediately thereafter walked over to the deceased and kicked him hard in the shoulder telling the deceased that he had better keep his “mouth shut” and “mind your own fucking business”. It was in this context that the deceased was telling Colless the account of having gold left over from the break and enter he had committed.

87. I cannot see how the advice that Colless gave to the deceased is probative of any fact in the case. Nor do I see it as particularly prejudicial to the defence as it seems to be little more than common sense. However it seems to me that the advice is not admissible. The conversation is perfectly explicable without that sentence.

88. The relevant point from the Crown’s perspective is to lead the conversation of the deceased having hidden gold (and thereby providing a motive for his death) and Colless’ direct observation of Williams staring at the deceased closely from across the yard – continued evidence, in its context, of attempted intimidation. The observation closely follows the act of violence towards the deceased seen by Colless and puts Williams’ conduct into context.

89. The balance of the contents of the paragraph seem to me to be admissible going to the relationships between the deceased and the accused Williams and it ought to be led.

90. Paragraphs 32 to 37 of Colless’ statement then relate an event that occurred two weeks after the one just described, and again which I have previously referred to.^[21]  Colless observed Williams to walk into Ryan’s cell at a time when the deceased and Ryan were in it.  He did not observe what occurred but he could hear Williams yelling and the sounds of someone being hit.  Colless then relates that a few minutes later Williams came to him and threatened him.  Then follows the disputed evidence which reads:

“38.I spoke to Elvis later on that day to see if he was alright.  He said that he was and that the next time he Weso came at him he was going to stand up to Weso and take him on.  He made a couple of jokes about whether not being able to hurt him.  I told him to keep his mouth shut.”

91. The Crown’s point in leading the evidence is to establish that the deceased’s state of mind was that he intended to stand up to Williams and, inferentially, that this might well further enrage Williams.

92. In my view the evidence is relevant to the state of the relationships between the accused and the deceased and is admissible.

93. Subsequently in his statement Colless relates circumstances that resulted in the deceased being moved to the detention unit and then to Ten Block. The next disputed statement is as follows:

“61.He said to me: ‘Fuck, they’re sending me to Ten Block, Weso’s down there with all his mates.  I’m fucked, they’ll get me.  It wasn’t even me.

…

68. When Elvis spoke to me about his concerns about going to Ten Block I told him to offer to go to the DU or if that didn’t work to muck up or abuse an officer to get sent there.

69. When the time came for Elvis to go to Ten Block him and his mate from the cell wouldn’t go.  They sat in their cell.  The screws came into the yard and were standing in a bunch at their cell door.  There were quite a few officers there but I don’t remember any of them individually.  I was at my cell doorway about five cells away, about 10 metres maybe.  I could clearly hear what was being said.  They said they could drag him down to Ten Block if they wanted to. 

70. Elvis started swearing at them and carrying on about not going to Ten Block and then they said he would be going to the DU.  He settled right down and off he and Donovan went.”

94. The last sentence of paragraph 61 is a reference to the deceased denying that he had been guilty of the offence which had him moved to the detention unit and to Ten Block. It is neither probative nor prejudicial and led, I assume, simply as part of the narrative.

95. Each of these disputed paragraphs deals with the deceased’s reaction to being sent to Ten block. In the paragraph numbered 61, Colless reports that the deceased connected his concern to being sent to Ten block directly to Williams. The sentence “I’m fucked, they’ll get me” clearly is a reference to the probability of physical violence being perpetrated on him. The evidence here bears upon “the dealings and mutual attitudes” of the accused and the deceased, their “past dealings and mutual attitudes”, their “bad relationship”, their “hostile relationship” or the accused “dealings with and attitudes to the deceased”.

96. I cannot see that the contents of paragraph 68 are relevant – the witness can speak of the fact that the deceased spoke to him about his concerns about going to Ten Block on the assumption that is a reference back to the contents of paragraph 61 but the witnesses’ advice to the deceased does not seem to me to advance the matter at all.

97. The contents of the paragraphs numbered 69 and 70 are in the same category as the contents of paragraph 21 in McIlwain’s evidence and are admissible for the same reasons.

98. The following paragraphs from Colless’ statement are objected to:

“71.I didn’t see Elvis again for a while.  The next time I saw him was on the day he died.  It was in the morning and he was walking past Eight Block and he stopped at the fence.  Robbo and I spoke to him there but only for a while.  Elvis told us that he had been put into Ten Block.  We said to Elvis to meet us outside the library so we could talk to him in private and formulate some plan to get him out of Ten Block. 

72. About five minutes later I got let out and went up to the library.  Elvis was waiting there outside and we spoke for a while. 

…

Elvis said that he really wanted to see his daughter and had a visit coming up so he didn’t want to go back to the DU. 

73. I asked if he thought he would be right in Ten Block and Elvis said that Knighty had been shouting him pot in the DU was looking out for him.  He said that everyone was smooth so far and because of Knighty things were all okay with Weso.  Elvis said that Knighty and Weso were organising a nice surprise for him in the showers when he got back and he couldn’t talk long – he’d just come up to see Kevie about Knighty’s shoes. 

74. The exact words he said were, “Knighty and Wes have got a nice surprise waiting for me in the showers when I get back”.  I am sure of this.

…

77. [The deceased] said all he was interested in at the moment was seeing his daughter and getting back to the block.  He definitely wasn’t as worried as he was before he left Eight Block.

78. We walked back to the Eight Block fence and Elvis called Kevie Ryan up to the fence and they had a conversation.  I was standing right beside Elvis.  Elvis was talking to Kevie about some shoes that Kevie had promised to Knighty. 

…

80. Elvis was a bit pissed off at Kevie because Knighty still didn’t have the shoes promised.  It was pretty clear Elvis didn’t want to go back to Ten Block without them.

81. I remember Kevie said something to Elvis like, “Fuck Knighty anyway” or something like that and then Elvis said to Kevie: “Alright, it’s your neck not mine” and then basically went to walk off.

82. Elvis and I made a quick arrangement to meet up again to walk around the oval that afternoon and talk about it some more.  That was the last time I saw Elvis.”

99. The contents of the paragraphs numbered 71, 72 and 77 are relevant to the defence hypothesis that the deceased committed suicide. As the Crown points out it is also evidence that goes to meet any defence contention that the deceased was not fearful of going to ten block. The defence could argue that if the deceased was truly fearful of being in ten Block he could always misbehave and have himself placed in the detention unit and so safe from Williams. With this evidence the jury can infer that despite being fearful the deceased had a strong desire to see his daughter and to do that he had to get out of the detention unit. The fact that he was planning with his friends on a way of getting out of ten Block and expressed a desire to see his daughter are each relevant to the deceased’s state of mind, the improbability of him committing suicide a short time later, and this possible defence contention.

100. The contents of the paragraph numbered 73 go to the relationship between the deceased and Knight as well as the deceased’s perception of the relationship between Knight and Williams as encouraged by Knight’s words and conduct. It is evidence that Knight or Williams or both of them had told him that they had a “nice surprise” ready for him in the shower block. The conversation about the shoes indicates the nature of the relationship between the deceased and Knight – the deceased was to get some benefit for Knight and in return Knight would look after the deceased and supply him marijuana.

101. The evidence here is of importance to the Crown case and obviously highly prejudicial to the defence. If accepted by the jury it indicates that Knight had won the deceased’s confidence and had calmed his fears concerning Williams and inferentially, by reason of the exercise of that confidence, may have assisted in having the deceased voluntarily enter the shower block where he died. As the Crown contend this assists the Crown in its proof as it, inferentially, suggests premeditation in respect of the “surprise” that was awaiting the deceased.

102. In my view the evidence is admissible and ought to be admitted despite its prejudicial nature. That is, in my view, its probative value seems to me to be strong.

103. The statements related in the paragraph numbered 80 indicate that the relationships between the deceased and Knight, whilst apparently friendly on the surface, were, to the deceased’s perception, important to maintain.

104. The Crown’s submission that the statement provides evidence of motive (that he was murdered as retribution for a failure to provide the shoes) seems to me to be wrong – it is inconsistent with the earlier Crown submission that the “surprise” was a reference to the pre-meditated murder of the deceased. At the time the deceased was told of the “surprise” awaiting him he was yet to fail in his task of obtaining the shoes.

105. The relevant point from the Crown’s perspective is that the statements indicate that the deceased perceived a need to provide advantages to Knight and that was so because of Knight’s influence over Williams. The inference is that it provided the best chance of the deceased being kept safe from any attack by Williams.

106. The contents of the paragraph numbered 82 suggests that the deceased’s state of mind was not one of contemplating suicide in that he was making plans for what he was to do later that day.

107. Each of the disputed statements is, in my opinion, admissible as logically advancing the Crown case or in meeting significant potential arguments of the defence.

Kelly

108. The Crown, for reasons that are not clear to me, wishes to lead evidence that the witness Brett Andrew Kelly, did not see the deceased after he was removed from Eight Block and taken to the detention unit.

109. I cannot see any point to the evidence.

Reece

110. Clifford Reece was a fellow inmate of the deceased, resident in Eight Block. Reece reports that the deceased was easy going and “pretty outgoing fun loving” sort of person. He “got on with everyone” and often spoke about his baby and girlfriend. The impugned evidence is related, by Reece, to the time that Buckley and Donovan were moved out of Eight Block. The challenged evidence is as follows:

“14.When Elvis got told he was going to be moved out he got really worried.  He said to me that he was not going to go to Ten Block and was going to try everything he could not to go.

…

15. When the time came for Elvis to leave Eight Block he refused.  This ended up in a stack of screws coming to the yard and physically moving him and his cell mate out.  Donovan was his cell mate. 

16. I remember there was a big bunch of officers and Buckley was saying out loud that he didn’t want to go to Ten Block.  He was pretty much pleading with them.  I remember him saying he would go anywhere in the jail they wanted except for Ten Block.

…”

111. For the same reasons that I have set out earlier, evidence concerning the deceased’s expressed reluctance to go to ten Block is plainly connected to the hostile relationship that had developed between he and Williams, the past dealings between the men and the attitude shown by Williams to him consistent with the wish of Williams to inflict violence on him or intimidate him.

112. The statements are admissible.

Findlay 

113. Craig Geoffrey Findlay met the deceased when the deceased was resident in the detention unit immediately before he was moved from there to Ten Block. He overheard conversations between the deceased and Knight. The challenged evidence is as follows:

“12.Buckley was worried about going into Ten Block, he had a problem with someone in there but I don’t remember who it was.  I remember Knight telling Buckley that he would look after Buckley when he went into Ten Block.”

114. This statement is consistent with the evidence of the witnesses that I have already dealt with. It assists the Crown in its proof that the deceased was concerned about being transferred into Ten Block. That concern was directly related to the dealings that he had with Williams. The defence have not pointed to any other possible logical reason for that concern. It is consistent with the statement related by Colless at paragraph 61 of this statement (“Fuck, they are sending me to Ten Block, Weso’s down there with all his mates. I’m fucked, they’ll get me.”).

115. In my view it is admissible as logically advancing the Crown case.

Sullivan

116. Nicholas Thomas Sullivan met the deceased whilst the deceased was in the detention unit shortly before he moved to Ten Block. He was in the cell next to the deceased in the detention unit.

117. The challenged evidence is as follows:

“22.I remember the screw Alby Bauer who was the Ten Block screw coming into the DU [and saying to the deceased] ‘You’ll be in Ten Block soon mate’.  I remember Elvis always saying back that he wanted to speak to the senior and he didn’t want to go to Ten Block.

…

27. Buckley [ie the deceased] made it pretty clear to everyone that he had really serious concerns about going to Ten Block.  I remember him discussing this with the screws.  I remember him saying it to Alby Bauer a few times.  I remember also one of the seniors coming down to the DU when I was there and talking to Buckley about this.  I remember him talking quietly through the fence and saying to Buckley that he would be going into Ten Block whether he liked it or not.  I remember Buckley saying over and over again that he would not go.

28. I did not hear Buckley say anything specific about being in danger but I do recall these conversations happening a few times with staff when meals came in or other times when the senior came in. 

…

30. I remember Buckley and Knight had a small argument when they were in the DU in this period.  The argument was about smokes or sandshoes or something trivial that Knighty wanted from Buckley.  There are things that are very valuable inside prison.  Tobacco, cigarettes, sandshoes and sunglasses are important things to have.  It was something like that between Knighty and Buckley and Buckley had failed to deliver and so Knighty was angry with him.  They seemed to sort it out somehow, I am not sure how it was resolved.”

118. Evidence of statements by the deceased that he was reluctant to go into Ten Block are, as I have previously held, admissible. The fact that it was repeated, and repeated to the guards in charge of the prison, assists the Crown in its proof in that it reflects the depth of the deceased’s concerns, concerns engendered by Williams violence towards him.

119. The contents of the evidence in the paragraph numbered 30 are in a different category. They reflect on the relationship with the accused Knight. The fact that the deceased and Knight “had a small argument” would not normally be admissible even though it might reflect on their relationship. I have in mind the caution that Barwick CJ expressed in Wilson v The Queen about the admission of evidence of “quarrels which were no more than ‘transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing’ and which did not proceed from hostility or enmity nor tended to show the existence of or to promote such feelings” ought not to be admitted.^[22] 

120. As I have previously said in relation to the evidence of Colless, the failure to deliver the sandshoes does not, to my mind, provide any credible evidence to the Crown of a motive for murder. More importantly for the Crown, it reflects the state of the relationship between Knight and the deceased in that the deceased was attempting to appease Knight who was his protector in Ten Block. This witness’s account tends to confirm Colless’ account and so assists the Crown in advancing its proof. If anything this evidence is of advantage to the defence as the witness appears to downplay the significance of the whole event. The inference is open to the jury that the deceased was using the currency of the prison to obtain protection from Williams, protection that other evidence suggests he might well have thought that he needed.

121. In my view the evidence is admissible.

Devon 

122. Bobby Leigh Devon met the deceased whilst they were both in the detention unit in June 1999. Devon left the detention unit the day before the deceased died.  He was placed in the detention unit on 11 June 1999.

123. The challenged evidence is as follows:

“12.I remember talking to Elvis while I was in there.  I remember him talking about his missus and his kid.  I also remember Elvis talked about why he was in prison for in that he committed break and enters.  He told me that he had broke into his girlfriend’s dad’s house.

13. I also remember him telling me that he didn’t want to go to Ten Block. 

14. I remember that he was a little stressed about going into Ten Block.  He was definitely worried about going in there, that’s for sure.  He said that he was going to have dramas; you know he was a bit worried about going into Ten Block because someone from Ten Block had threatened him. 

…

15. I also remember that while he was still in the DU he told another inmate that he had dramas in Ten Block and he didn’t want to go there because he was having problems with a particular inmate in Ten Block.  This other inmate said to him, ‘Just go in there and sort them out and maybe they’d front up’.”

124. Discussions between the deceased and other prisoners about his girlfriend and his child are, in my view, admissible as going to the deceased’s state of mind and the improbability of his committing suicide two or three days later.

125. The evidence concerning why the deceased was in prison seems to me to logically advance the Crown case in a number of ways. Devon was a man with whom the deceased had had no time in which to form any strong friendship.  Nonetheless he was prepared to tell Devon why it was that he was in prison.  It confirms, perhaps in only a small way, the probability that the deceased would have told others with whom he was much more friendly of the reason for his imprisonment and the details of the robbery including details of monies that he may have retained and not revealed to the police.  The Crown theory of the case is that Williams had heard of this and wanted to obtain it.  Thus it gives context to other evidence of the deceased’s statements and assists the Crown in establishing its case as to the state of Williams’ knowledge. 

126. Statements about the deceased’s reluctance to go to ten Block, as I have indicated, are in my view admissible. In this case, the witness says that the accused informed him that the basis for his concern about going to Ten Block was that “someone from Ten Block had threatened him”. By the time of the conversation Williams was in Ten Block. That confirms other direct evidence that Williams had indeed threatened the accused e.g. Colless’ statements as to what he heard in Ryan’s prison cell after Williams had entered it. The evidence from all the prisoner witnesses is that the accused was friendly and got on with all prisoners save the reports about Williams (and perhaps to a much lesser extent the reported conversation about the sandshoes and Knight). The Crown can invite the jury to draw an inference as to who it was “from Ten Block” who had threatened the accused. That it was Williams is a logical inference reasonably open on all the evidence.

127. The evidence in the paragraph numbered 15 adds to that the advice of another inmate. That advice does not seem to me to be of importance to either side. It is not clear to me whether the defence take objection to that. I will rule on its admissibility after receiving further submissions.

McLuckie

128. Brodie James McLuckie entered the detention unit on 11 June. He was released from the detention unit on 13 June. He met the deceased during his period in the detention unit.

129. I note that in his statement, and it is not challenged as inadmissible, he reports that Buckley told him that “he had a girlfriend and a child in New South Wales and that he couldn’t wait to get out to see them”.  The fact that that evidence is to be received by the jury confirms in my mind the appropriateness of other statements heard by other witnesses concerning the deceased’s wish to see his girlfriend and child in the days leading up to his death are appropriately admitted as going to his state of mind and the unlikelihood him suiciding.

130. The challenged evidence is as follows:

“19.I recall hearing Buckley say at some stage that he couldn’t wait to get out of the detention unit and that he was not concerned about moving to Ten Block.”

131. Whilst contrary to the Crown theory of the case (that the deceased was fearful of going into ten Block), it assists the Crown in establishing that Knight had won over the confidence of the deceased, and that as a result the deceased did not deliberately misbehave when transferred to ten Block which may have resulted in him being sent back to the detention unit and to safety. It takes away one of the arguments that the defence might otherwise put forward to undermine the Crown case that the deceased was fearful of going into ten Block. Thus, whilst on its own it does not appear to be probative of the Crown case it assists the Crown in its proof. Again the jury might logically and reasonably draw the inference that the significance of being keen to get out of the detention unit is that it enabled Buckley to see or converse with his girlfriend and child. Again that goes to the issue of suicide.

132. As previously explained I consider the statement to be admissible.

Friedrich

133. Scott Alexander Friedrich met the deceased when the deceased was placed in the detention unit.

134. The challenged evidence is:

“18.I remember towards the end of my stay at the detention unit that Chris Anderson who was a senior prison officer, Gordon Reed, Alby Bauer, Story, Bidgood came down and told Buckley (i.e. the deceased) that he was going to Ten Block. I remember Buckley was pleading saying “I can’t go there, I can’t go there”.

135. Friedrich reports that at the time he was in his cell and could not see what was going on but he recalls Knight telling the deceased after this that the deceased “would be alright and that he would look after him”.

136. For the reasons already explained I consider that the deceased’s reluctance to go to ten Block is logically probative of the Crown case and hence is admissible. There is an absence of any attribution by the deceased of a basis for his concern contained within the statement itself but other evidence in my view, can be brought in aid to explain the reluctance. The intimidatory conduct of Williams towards the deceased prior to him being placed in the detention unit, and the friendly relations that the deceased had with all other prisoners, and the absence of any other apparent reason for that reluctance all combine to permit the jury to draw a reasonable and logical inference as to the cause of that reluctance.

Weeks

137. Phyllis Narelle Weeks was employed as a correctional officer at the Rockhampton Correctional Centre. She met Buckley on his arrival at the prison. In her statement she relates to the background to the decision to move the deceased to ten Block. She relates that the deceased refused to obey her direction to pack his gear and go to that block. He was then breached for disobeying her direction and informed that he would be moved forcibly if necessary. She reports that the deceased replied that he would have to be taken out of his cell if he was to be moved. She then called for assistance to force the deceased to cooperate.

138. The challenged evidence is of conversations that occur at this time when he was being moved from Eight Block:

“10.As we were waiting for the other officers to arrive, Buckley said words to the effect, “I can’t move to Ten Block. They’ll get me”.

I said: “Who’ll get you?”

He said: “I can’t tell you that, they’ll kill me.”

I said: “Why didn’t you tell me that?”

He said: “Cause I’d be safer in the DU”.

…

12. I then told him that he should have told me about this earlier and it would have saved any problems. After this he was escorted…down to the detention unit. I saw him about four or five times. After this he was fine towards me. He didn’t appear to hold any sort of grudge against me and he didn’t seem to have any concerns.”

139. As Weeks is in a different category to all the other witnesses, I will return to the question of the admissibility of these statements under s.93B.

140. The principal argument advanced by the defence that the preconditions of s.93B were not satisfied is that the Crown cannot demonstrate that the deceased’s statements were unlikely to be fabricated or had a high probability as to their reliability in stating accurately the facts contained within them because there was a real prospect that the deceased was not stating what was in his mind but rather attempting to manipulate the system.

141. I can see that that argument has added force when applied to a guard as opposed to a fellow prisoner. In this case the statements were made immediately after the deceased had refused to obey the lawful order of a guard. That resulted, as it almost inevitably would, in him being breached and sent to the detention unit. On the Crown case this was all part of the deceased’s plan to avoid being sent to ten Block.

142. The difficulty with the defence argument is that it is not clear what the deceased could have been attempting to achieve by manipulating Weeks by these words. They are relevant only to where the deceased wanted to be kept in the prison and are only consistent with the deceased not wanting to go to ten Block. The deliberate disobedience of a guard’s orders would not get the deceased back to 8 block, but only to the detention unit, and, if perceived as a troublesome prisoner, perhaps assigned permanently to ten block. It is highly unlikely that the deceased had any wish to be in the detention unit apart from a fear for his own safety. The detention unit was not a comfortable place to be. It meant solitary confinement in a cell for 23 hours of the day. The cell was 20 feet by about 12 feet according to Friedrich. The only place which the prisoners went apart from their cell was to an attached yard and there was time enough only to have “a shower, breakfast and a little talk” before being again locked up (as per Friedrich’s paragraph 10). Some of the prisoners relate that there was no hot water and the prisoners relate that the weather was cold at the time. When in the unit the deceased was not permitted contact with his girlfriend or child.

143. It cannot be said that the deceased was attempting to manipulate the guards to take an adverse view of another prisoner as the deceased refused to reveal the identity of the prisoners that were likely to “get” him or “kill” him.

144. I do not understand how it can be argued that the deceased was attempting to manipulate Weeks by making these statements. Given the evidence that I have related demonstrating that, if accepted, Williams had behaved in an aggressive manner towards the deceased, it seems to me that there is ample reason to think that the statements were unlikely to be fabricated by the deceased and that it is highly probable that the representations contained within the statements are reliable.

145. Given the surrounding circumstances it seems to me that there is a high probability that the deceased was being truthful in the statements that he made to Weeks. That is that he was very concerned about moving to ten Block because of the fear of physical violence being perpetrated on him.

146. The deceased’s great reluctance, reflected by the need to obtain a number of security officers to force him to move, tends to confirm the Crown case that the deceased perceived a significant reason not to go to ten block. In the context of all the evidence the jury can logically and reasonable infer that was, in turn, due to the high degree of animosity from Williams towards the deceased.

147. As with the evidence that I have already discussed concerning the deceased’s reluctance to go to ten Block seems to me that this evidence is logically probative of the case the Crown wishes to advance.

148. Thus it seems to me that the statements related in paragraph 10 of Weeks’ statement are admissible.

149. The Crown submit that the contents of paragraph 12 should be received on the grounds that it places the evidence in an intelligible context and is evidence of the state of mind of the deceased i.e. that he had an amicable relationship with the guard Weeks. I do not at present understand why the deceased’s relationship with the prison guard is of any relevance to the Crown case nor do I see the need to admit the evidence to put anything into context. Nonetheless the parties have not made any direct submission to me (save in the Crown’s written submission which does not clarify the point) on these matters and I will reserve a decision until further submissions are received.

150. Weeks provided an addendum to her original statement. Objection is taken to the following paragraphs in that later statement:

“9.In paragraph 10 of my original statement I have a conversation with Buckley in relation to Ten Block. I recorded this information in my official notebook. I also passed this information to Chris Anderson the supervisor. In January 2003 I moved house and had the notebook stored in a removal box, this box and the contents were destroyed by flood waters at this time.

10. [The deceased’s] demeanour and attitude was that he wasn’t out to cause trouble. He was generally a cooperative prisoner. I never had any trouble with him.”

151. No specific submissions were made by the defence in relation to these paragraphs. I assume the concern was to ensure that all references to the conversation with the deceased were found to be inadmissible. Given my decision in relation to the original statement the fact that Weeks recorded the conversation in her official notebook and passed it on to her superior will meet any defence argument that she did not take the statement seriously. It is appropriate that those facts be admitted.

152. The opinion held by Weeks that the deceased was a cooperative prisoner and not out to cause trouble advances the Crown case in that it highlights the significance of the deceased not obeying the lawful order of Weeks when she directed him to move to ten Block. It suggests that his attitude was out of character and that there would need to be some motivating force, and inferentially a strong one, for him to act in this way. That motivation, on the Crown case, is supplied by the evidence relating to the conduct of the accused Williams towards the deceased.

153. In my view the statement is admissible.

Conclusion

154. I have borne in mind the discretion that I have to exclude otherwise admissible evidence where the prejudicial effect outweighs its probative value. In my opinion the probative value of the challenged evidence merits its receipt.

155. It will of course be necessary that the jury be warned as to the reliability of evidence of this sort^[23] and the use that they can legitimately make of the challenged evidence – principally that it cannot go to establish a propensity in Williams to commit the crime charged.

156. The directions then are:

1. that the challenged evidence of Donovan, Robinson, McIlwain, Colless, Reece, Findlay, Sullivan, Devon, McLuckie, Friedrich and Weeks be admitted into evidence save in respect of:

1. that of Robinson as contained in paragraph 21 of his statement to the extent that it consists of the opinion of Robinson and reflects Robinson’s view of Williams and his potential for violence;

2. that of Robinson as contained in paragraph 36 of his statement;

3. that of Colless as contained in paragraph 31 of his statement to the extent it consists of the advice of Colless; and

4. that of Colless as contained in paragraph 68 of his statement.

2. the Crown is not permitted to lead the challenged evidence of Kelly;

3. that the parties have leave to make such further submissions as they may be advised in relation to the admissibility of the evidence of Devon contained in paragraph 15 of his statement and Weeks contained in paragraph 12 of her statement.