R v Moore & Tracey

Justice Burns published his Honour’s reasons for excluding evidence in the exercise of the Christie discretion during the course of a murder trial which was heard last year. The challenged evidence concerned comparison and opinion evidence, which was relied on by the Crown as an evidential foundation for a chain of inferences leading to an ultimate inference that the weapon used to inflict the fatal wound on the deceased, which was never found by police, was a “missing knife” from a knife block taken from the house of one of the applicants. Justice Burns excluded the challenged evidence on the basis that its prejudicial effect outweighed its probative value.

Burns J

1 April 2021

Background

The deceased was found in the downstairs living room of his unit. [6].  Moore and Tracey (together, the “applicants”) were charged with his murder. [1]. The applicants were charged on the basis that both the applicants were criminally responsible “in one way or another”. [7].

The Crown case was, in effect, that Moore fatally wounded the deceased with a knife intending to cause death or grievous bodily harm and Tracey was complicit, or vice versa, or further and in the alternative, both applicants formed a common intention to prosecute an unlawful purpose, namely, to seriously assault the deceased, during the carrying out of which, the deceased was murdered, that being a probable consequence of carrying out the unlawful purpose. [8]–[9].

During the course of the trial and in the absence of the jury, the applicants’ sought a ruling from the trial judge that two categories of “challenged evidence” be excluded on the basis that its prejudicial effect outweighed its probative value. [17].

The “first category” of challenged evidence

A knife which was said to have been used to fatally wound the deceased was never found, however, an item of interest located by police at Moore’s house was a knife block. [11], [14]. Assuming the knife block was sold with a complete set of knives, it was believed that one of the knives was missing. [14]. If this evidence was accepted by the jury, it would have been open to infer that one of the knives previously housed in the knife block was, indeed, missing. [21]. Whilst admissible as circumstantial evidence, Burns J was not satisfied that the probative value of category of challenged evidence, alone, outweighed any prejudicial effect. [21].

The “second category” of challenged evidence

The Crown indicated that it proposed to lead further evidence about the purchase by police, of what was believed to be, either an identical or similar knife block together with a complete set of knives (the “purchased knife set”). [20]. The Crown then proposed to lead what could perhaps broadly be described as comparison evidence from a police scientific officer, and the retailer, wholesaler and/or manufacturer of the purchased knife set, as well as opinion evidence from a forensic pathologist. [16], [20].

What the Crown had “hoped” was to build upon the inference open on the first category of evidence with both the comparison and opinion evidence to support what could be described as a chain of inferences leading to an ultimate inference that the “missing knife” from the knife block found at Moore’s house was the weapon used to inflict the fatal wound on the deceased. [23]. If the ultimate inference was accepted by the jury, it stood to reason that either or both applicants took the knife with them to the unit where the deceased was found, which “went to the heart” of the jury’s consideration of complicity and/or common purpose as extensions of criminal responsibility relied on by the Crown. [23].

Although the ultimate inference contended for by the Crown was “capable of being drawn” there were “all manner of alternative rational explanations inconsistent with any notion that the missing knife had been removed from the block and taken by one or both accused” to the unit where the deceased was found. [24]. The Crown was not in a position to exclude any of those rational explanations. [24]. The comparison and opinion evidence was only of “slight probative value” but it nonetheless had the “allure” of offering a solution to the “mystery” surrounding the “murder weapon” which was never found. [24].

In these circumstances, there was a “real danger” that the second category of challenged evidence would “unfairly inflame the jury in their consideration of questions that went… to the heart of the Crown case.” [24]. Therefore, and as Burns J concluded, the second category of challenged evidence was sufficiently prejudicial that it was “likely” that the jury would give the challenged evidence and related inferences “much more” weight than it deserved. [24].

Disposition

In the result, Burns J excluded the second category of challenged evidence. [25].

D Kerr