New South Wales Supreme Court CITATION : R v Lamb and Thurston [2002] NSWSC 323 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70209/01; 70066/01 HEARING DATE(S) : 10 April 2002 JUDGMENT DATE : 11 April 2002 Regina (NSW) PARTIES : Stanley Joseph Lamb - Accused Edward George Thurston - Accused JUDGMENT OF : Dunford J M.A. Macadam QC - Crown COUNSEL : P.M. Paish - Lamb A.I. Parker - Thurston S.E. O'Connor - Crown SOLICITORS : Ross Hill and Associates - Lamb Legal Aid Commission of NSW - Thurston CATCHWORDS : CRIMINAL LAW & PROCEDURE - murder trial - transactional evidence - evidence to make intelligible the alleged conduct of accused - evidence to show state of mind of accused at time approximate to death of deceased. LEGISLATION CITED : Evidence Act 1995, ss 55, 56, 70, 135, 137 O'Leary v The King (1946) 73 CLR 566 CASES CITED : R v Adam [1999] NSWCCA 189 R v Player [2000] NSWCCA 123 DECISION : Evidence admitted. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J TAMWORTH: Thursday, 11 APRIL 2002 70209/01 R v Stanley Joseph LAMB 70066/01 R v Edward George THURSTON JUDGMENT – Re proposed transactional evidence; see T 327 1 HIS HONOUR: The Crown has sought to tender evidence along the lines of the statements contained in Exhibit P on the voir dire tending to show that some hours prior to the death of the deceased the accused Lamb was drinking, was in company with the accused Thurston, and was in an aggressive mood, including a mood of physical aggression, and some of the evidence was to the effect that the accused Thurston was attempting to restrain the accused Lamb. 2 I indicated that I would admit specified parts of such evidence and give my reasons later. Mr Parker on behalf of the accused Thurston then submitted that I should admit the balance because in his submission it was all part of the same transaction, and showed the degree of the drinking and aggression on the part of the accused Lamb, and he submitted that it could not really be separated from what I had indicated I would admit. 3 The parts that I admitted on the application of the Crown was evidence of drinking during the day by either of the accused, evidence of verbal and physical aggression by the accused Lamb towards a person by the name of Anthony Slater and any form of aggression on the part of the accused Lamb after 7 pm; also evidence that Lamb was in the company of Thurston during the day and apparent efforts by the accused Thurston to restrain Lamb. 4 The evidence is not tendency evidence within s 70 of the Evidence Act 1995, nor is it tendered or admitted on such basis. In O'Leary v The King (1946) 73 CLR 566 at 577-8, Dixon CJ said: "Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide." 5 That case was a case where the evidence related to what was described as a "drunken orgy" which commenced on the Saturday morning and continued until late on the Saturday night, during which the accused, at various times, assaulted a number of fellow employees, some of the assaults were unprovoked and all consisted of brutal blows to the head, including one allegation that he had, during the afternoon, aimed a blow at the deceased. 6 The matter was also referred to by Latham CJ at 575 where his Honour said: "All the assaults in question were incidents of a drunken orgy on the same day, began at Penola, continued at Kalangadoo at the camp where the men lived. Evidence that the accused had been drinking during the day and evening of 6th July and the early hours of 7th July, was admissible to show the probability that he would attack another man in a fit of drunken fury. Evidence that, on the day and the night of the killing of [the deceased], he actually attacked particular fellow employees without cause is also evidence which goes to show the probability that he would attack some other fellow employee. Such evidence puts the act of attacking [the deceased] in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night. It is evidence of "facts and matters which form constituent part or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued"." 7 The Crown pressed the evidence on this basis which might conveniently be described as evidence of a connected series of events and also as evidence tending to show the state of mind of the accused Lamb at a time sufficiently approximate to the time that the deceased was killed. Most of the evidence relates to events from about 7 pm onwards, the deceased apparently being killed between 8.30 and 10 pm. 8 None of the witnesses in the Crown case, as I understand it, will say that they actually saw either accused kill the deceased. 9 It is therefore a circumstantial case and consequently all relevant circumstances if they could rationally, directly or indirectly, affect the assessment of the probability of the existence of a fact in issue are relevant (s 55) and, unless otherwise excluded, admissible (s 56). 10 The association of the two accused that day is clearly a relevant circumstance, as is the fact that they were drinking and how much they were drinking. 11 Likewise, the state of mind of the accused shortly before or shortly after the relevant time is relevant, particularly if he was displaying a hostile and aggressive attitude and that the aggression included threats of physical violence. 12 It is also relevant to the accused Thurston's case, if it be supported by evidence, that Thurston was trying to restrain the accused Lamb. See generally R v Adam [1999] NSWCCA 189 at [23] to [25], R v Player [2000] NSWCCA 123 at [10] to [16]. 13 True it is that the violence was not directed towards the deceased, but neither was a lot of the violence in O'Leary's case; and that of itself does not make it irrelevant. It merely takes it out of the category of relationship evidence (cf Wilson v The Queen (1970) 123 CLR 334) and into the field of transactional evidence, which includes evidence of surrounding circumstances part of the same connected series of events and completeness; and it also tends to show the accused's state of mind at the relevant time. 14 For these reasons I indicated that I would admit those parts of the evidence which I admitted yesterday. 15 Mr Parker then asks me to go further and admit the evidence of the verbal arguments with other people earlier in the day and the fact that they included, as I understand it, one threat of violence offered to a Mr French and the fact that because of the arguments they were asked to leave a number of places. 16 I have already ruled that the evidence of the drinking earlier goes to an examination of the total quantity that the accused may have consumed during the day. 17 On further consideration of the evidence, it seems to me that the matters alleged earlier in the day to which I have referred, is really all part of a developing situation which started with the drinking and developed into verbal arguments and later threats by the accused Lamb, in particular of physical violence. They are all, it seems to me, part of the same developing situation or transaction. 18 I appreciate that often this must be a question of degree and the dividing line in many cases will be arbitrary, but in this case I am satisfied that it is all part of the same developing pattern and helps to put the circumstances that further developed and occurred later that night into context and may help the jury to understand it. 19 I have considered whether it would be unfairly prejudicial to the accused Lamb, but having regard to s 137, I am satisfied that it does have probative value and that, although prejudicial to the accused Lamb, it is not unfairly prejudicial to him and the probative value is not outweighed by any unfair prejudice. 20 Therefore, I will not exclude the evidence pursuant to s 137 and I will not exercise the discretion to exclude it under s 135. 21 Accordingly I admit the whole of the evidence. ********** Last Modified: 04/29/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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