R v Hirst [2008] ACTSC 42 (24 April 2008)

Last Updated: 28 July 2008

R v IAN EDWARD HIRST

[2008] ACTSC 42 (24 April 2008)

EX TEMPORE RULING

Evidence Act 1995 (Cth), ss 97, 98

No. SCC 209 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 24 April 2008

IN THE SUPREME COURT OF THE )

) No. SCC 209 of 2007

AUSTRALIAN CAPITAL TERRITORY )

R

v

IAN EDWARD HIRST

ORDER

Judge: Higgins CJ

Date: 24 April 2008

Place: Canberra

THE COURT RULES THAT:

1. The evidence sought to be relied upon by the accused of three incidents involving Mr Bagnall and Ms Richardson in 2005 and 2006, and one incident involving Mr Bagnall at Fraser Court in or around late 2004, is inadmissible as coincidence evidence under s 98 of the Evidence Act 1995 (Cth).

2. The evidence sought to be relied upon by the accused of three incidents involving Mr Bagnall and Ms Richardson in 2005 and 2006 is inadmissible as tendency evidence under s 97 of the Evidence Act 1995 (Cth).

3. The evidence sought to be relied upon by the accused of the incident involving Mr Bagnall at Fraser Court in or around late 2004 is admissible as tendency evidence under s 97 of the Evidence Act 1995 (Cth) and is admissible for the purpose of adducing evidence that Mr Bagnall intended to, or said he intended to, kill Mr Hirst.

1. I note in this case that the evidence of Mr William Walter Ross has already been given without objection so, to that extent, that evidence is before the jury in any event, and I need not make a ruling on that.

2. As to the other three matters that are sought to be relied upon, I do not believe in any of those cases that s 98 of the Evidence Act 1995 (Cth) (Evidence Act) applies because none of those incidents is sufficiently similar to that which is alleged to have occurred or is suggested may have occurred in this case, namely that Mr Bagnall, in a state of intoxication, as one may infer from his blood alcohol reading or as might be inferred from that, suddenly without warning attacked Mr Hirst with a baseball bat.

3. I note that, in that respect, that is not an incredible statement because the forensic evidence is not inconsistent with that scenario. It does not establish that it did happen, but it is not inconsistent with it so it is certainly not a fanciful suggestion. However, that incident is not apparent to me to be similar to that which occurred, it would now seem, in late 2004, in which Mr Bagnall punched a glass pane with his fist, causing himself injury. It may have a similarity to the effect, or the extent, that Mr Bagnall appears to have taken drink on that occasion, but that is really the only similarity with that part of the event.

4. The fact that he uttered words to the effect that he "is going to kill Ian Hirst" does seem to me to fall into a different category. That is neither coincidence nor tendency, but it is evidence from which it might be inferred that Mr Bagnall harboured some latent resentment against Mr Hirst. I do not think it goes to whether Mr Hirst was in fear of him or anything of that kind, but it certainly does go to Mr Bagnall habouring latent resentment and would be relevant for that purpose. It was conveyed to Mr Hirst, though whether that gave rise to apprehension on his part is perhaps less certain.

5. As far as the incidents involving Ms Richardson, I will refer to the three of them. In the first one there is no particular evidence that Mr Bagnall was affected by liquor. He may have been, but there was no evidence of it.

6. While there is evidence of violence being perpetrated upon Ms Richardson, it does not seem to me that it is in circumstances where the coincidence rule could apply. It is not sufficiently similar to the incident which is said by Mr Hirst to Ms Santos to have happened in his unit. That still leaves, of course, s 97 of the Evidence Act, that is to say, the tendency rule.

7. I accept that notice has been given in accordance with s 97(1)(a) of the Evidence Act. The question is whether the evidence is sufficient to establish that Mr Bagnall, by reason of his character or conduct, has or had a tendency to act in a particular way, that is to say, relevantly, violently, if you like to add to that, when taking drink.

8. It seems to me that whilst there is already some evidence of such a tendency in terms of Mr Bagnall's previous criminal history, from which it might be inferred that it is not inconsistent with that, there is certainly some evidence of Mr Ross that would be consistent with that, and the uttering of a threat to kill Mr Hirst, albeit in December 2004, might tend to support that as well. Therefore, in my view the evidence of Mr Ross would, if it were still in issue, be admissible.

9. I cannot see much, however, in the incidents involving Ms Richardson which would do so, apart from the general tendency towards violence in respect of his domestic partner, and from which it would not, I think, be reasonable to infer that that could be applied, from that evidence at least, to others.

10. The second incident in respect of the event in late December 2004, if that be the precise time recounted by Ms Leach, would be admissible not for the purpose simply of the attempt to gain entry to the unit but rather for the purpose of adducing the evidence that Mr Bagnall intended to, or said he intended to, kill Mr Hirst.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 24 April 2008

Counsel for the Crown: Mr I Temby QC with Mr J Lawton

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Counsel for the defendant: Mr A J Bellanto QC with Mr J Pappas

Solicitor for the defendant: Ben Aulich & Associates

Date of Voire Dire: 24 April 2008

Date of ruling: 24 April 2008