R v Gordon [2016] NSWSC 290

Supreme Court New South Wales

Medium Neutral Citation: R v Gordon [2016] NSWSC 290 Hearing dates: 29 February 2016; 1 March 2016 Date of orders: 01 March 2016 Decision date: 01 March 2016 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: I order that an inspection of the scene at Collum Collum Station be carried out during the trial on Tuesday, 8 March 2016 subject to conditions which will be further discussed with Counsel before the view takes place. I direct that Counsel confer with one another to attempt to agree upon the appropriate conditions to be posed in relation to the conduct of the view Catchwords: CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude evidence – application for a view – where changes over time since time of incident – where no demonstration or experiment to be conducted Legislation Cited: Evidence Act 1995 (NSW) Category: Consequential orders (other than Costs) Parties: Regina (Crown); Donald Patrick Gordon (Accused) Representation: Counsel: Mr J McLennan SC (Crown); Mr J Watts (Accused)

Solicitors: Office of Director of Public Prosecutions (NSW) Aboriginal Legal Service (NSW/ACT) File Number(s): 2013/337128

EX TeMPORE Judgment (REVISED) 1. Mr Donald Gordon is standing trial for the murder of Mr Daniel Cotter, said to have occurred on 6 or 7 November 2013 at a property that has been referred to as Collum Collum Station, some one and a half hours from Grafton where the Court is sitting. The Crown case in short terms is that the deceased was killed by the infliction of blunt force trauma resulting in a transverse fracture of the skull and a very significant traumatic injury to the brain. The evidence that the jury will hear includes the expert forensic pathology evidence of Professor Lyons but who will also speak of the significance of multiple significant injuries to the limbs and torso of the deceased. These include what he will say are "drag marks" on the deceased's torso. 2. Without, for the purpose of this decision, summarising all of the relevant facts which are in one sense quite complex, it is important to point out that the body of the deceased was found on the morning of 7 November 2013 lying in a ditch beside a dirt access road near a cottage on the property. 3. When he was found his body, especially his face and head, was very bloodied. He was lying face up in the ditch next to a large rock or boulder which was also bloodied. Upon subsequent scientific inspection the boulder was found to also have matted, or embedded, hair in the blood stains. These large blood stains matched the blood of the deceased. Scientific evidence will suggest that the underside of the boulder, that is to say the aspect of the boulder resting on the ground at the time the deceased's body was discovered, showed traces of DNA consistent with the DNA of the accused. 4. The Crown case that the accused bludgeoned the deceased is entirely circumstantial and it will be for the prosecution to prove the guilt of the accused beyond reasonable doubt on the basis of the whole of the circumstances, actually proved by evidence the jury find acceptable. It is sometimes said it will be necessary for the Crown to exclude all reasonable hypotheses arising out of the circumstances proved consistent with the innocence of the accused. 5. It is effectively common ground that the accused and the deceased in company with others had been, to use an ordinary expression, partying for a very long time, drinking copious alcohol, possibly smoking cannabis (there was cannabis found on the body of the deceased when it was discovered) over many hours on the afternoon and evening of 6 November 2013 including at the cottage at Collum Collum Station. The partying consisted of drinking, singing and playing guitar. 6. During the evening there had been friction on a number of occasions between Mr Gordon and Mr Cotter. However the occupant of the cottage who will be called as a witness in the case made a statement to the police indicating that when they left in the accused's vehicle late that night to drive home, they seemed to be on good terms. They did not get very far. For having passed through the gate to the home paddock and then travelled a little further along the altercation seems to have re‑erupted. From admissions made by the accused on the night to his brother, and to Police when he spoke to them the next day, it seems that the deceased had attempted to get out of the car and that in circumstances, which are somewhat obscure and need not be gone into at the moment, was run over by the accused. From forensic inspections of the underside of the vehicle, when he was run over, he went under the car and may have been dragged along for a short distance. Photographic evidence shows tyre marks diagonally to the line of travel on the road, probably pointing at the ditch. 7. After these events occurred the accused returned to the cottage where he made the admissions about having done something to Mr Cotter and eventually an ambulance was called. I will not go into the detailed facts as to the actions of each other person thereafter. There is a lacuna in the direct evidence as to how Mr Cotter came to be in the ditch, how the blood got on the boulder, and indeed how the boulder got to the place where the police found it on the morning of 7 November 2013. 8. It is that lacuna which will need to be filled if the prosecution is to prove beyond reasonable doubt by an inferential reasoning process on the part of the jury that the accused bludgeoned the deceased to death. The Crown have tendered on this voir dire crime scene photographs – or a selection of them – and they strike me as being very clear. The proximity of the ditch to the road is obvious and the tyre marks are clearly visible. From aerial photographs an overview of the rural location can be garnered. 9. A number of markers were put out by investigators in accordance with the usual practice to mark points of potential significance at the scene. They were marked A to H. The photographs show various aspects of the markers and there are a number of individual photographs which show the relative location of all of them, apart from A which was near a gate and H which is said to mark the place where the boulder rested before it found its way into the ditch. That is at the top of a short embankment, on the other side of the ditch from the road. I am also informed that the evidence at the trial will include photogrammetry which will show the scale and position of these various things and provide the jury with an overview. 10. The Crown has applied for the jury to attend a view. The proposal is that the crime scene will be recreated, as depicted in the photographs. That is to say that each marker will be replaced in its position as depicted in the photographs and there is evidence that this is possible having regard to steps taken by police to preserve the scene including putting steel pegs in the ground under the position of some of the markers. 11. Obviously, over a period of getting on for two and a half years things have changed and, in particular, I am told there was heavy rain last year and the vegetation is lusher than that depicted in the photographs. The learned Crown Prosecutor submits that the understanding of the jury as to the rather confined space where all of the events leading to Mr Cotter's death took place, and the relativity of each relevant location to the others in spatial terms will be much better understood by the jury than can be inferred from the two dimensional photographs even with the assistance of witnesses who were there when the investigation took place. 12. A significant issue in the case relates to how the deceased came by the significant skull and brain injury which killed him and the Crown puts its case on alternative bases. Its preferred case is that after running him over, the accused dragged or tipped the deceased into the ditch, lifted the rock which apparently weighed about 21 kilograms from the top of the slope and used it to strike him forcibly two or three times, probably three. And it was by that deliberate or voluntary act of the accused that the fatal injuries were inflicted and the blood and hair transferred to the boulder. 13. It will also be put to the jury that if they cannot be satisfied beyond reasonable doubt of that matter, that: the admitted action of the accused running the deceased over caused all of the injuries including the fatal injuries; they would be satisfied that the accused drove the vehicle at the deceased deliberately; and that from that deliberate act they would be satisfied beyond reasonable doubt that he actually had the intention of inflicting really serious personal injury on the deceased. These matters would be sufficient to constitute the crime of murder. 14. Bearing in mind that the prosecution carries the usual heavy onus, according to the criminal standard of proof, Mr Watts argues that there is a danger that the inspection, as it is put in s 53 Evidence Act 1995 (NSW), might be unfairly prejudicial, misleading or confusing to the accused. He does not argue that it might result in an undue waste of time. It would probably take the best part of a day but the trial is set down for four weeks and proportionally it could not be said that there would be a waste of time. 15. The argument is really based upon the changes, the questions about whether or not the crime scene can be reliably recreated and perhaps the inability of the defence to satisfy itself of the relative accuracy of the recreation before the jury see the crime scene. These are all valid arguments. 16. I am satisfied that it is appropriate that the view be held. In making this decision, I have had regard to the provisions of s 53(3) of the Evidence Act. Arrangements will be made for the parties to be present. No demonstration or experiment will be permitted but an inspection will be carried out which I am of the view, as the Crown argue, may assist the jury in resolving the issues of fact that I have outlined and in understanding the other evidence that will be lead at the trial. 17. I think there is some danger of the type that Mr Watts relies upon but, in my view, any unfairness can be obviated by the explanation in evidence of the process taken by the prosecution to recreate the scene of the events before the inspection. Mr Watts will, of course, have the opportunity to cross-examine on those issues. And by providing adequate directions to the jury before they attend the view about the risk of error in recreation, the natural growth of other vegetation which may affect matters and, of course, the usual admonition to keep an entirely open mind until all of the evidence and argument is finalised. 18. Although there have been some alterations to the scene, it seems to me that from what I have been told that they are not material in the sense that the character of the place has changed in a way which might be misleading . As I have said, no experiment or demonstration will be conducted and I am satisfied that arrangements can be made for the logistics of getting the jury there and back. 19. Any questions that the jury wish to ask at the scene will be required to be reduced to writing and will be vetted by me with the assistance of Counsel before being permitted to be asked. 20. I order that an inspection of the scene at Collum Collum Station be carried out during the trial on Tuesday, 8 March 2016 subject to conditions which will be further discussed with Counsel before the view takes place. 21. I direct that Counsel confer with one another to attempt to agree upon the appropriate conditions to be posed in relation to the conduct of the view.