R v Barton [2006] NSWSC 1495 (8 June 2006)

Last Updated: 23 August 2007

NEW SOUTH WALES SUPREME COURT

CITATION: R v Barton [2006] NSWSC 1495



CURRENT JURISDICTION:

FILE NUMBER(S): 2005/1623

HEARING DATE{S): 08/06/2006

DECISION DATE: 08/06/2006

PARTIES:
Regina
James Harry Barton

JUDGMENT OF: Buddin J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
D Howard SC (Crown)
Ms D Yehia (Accused)

SOLICITORS:
S Kavanagh (Solicitor for Director of Public Prosecutions)
Legal Aid Commission (Accused)


CATCHWORDS:
Charge of murder - Crown relies on fact that deceased blackmailed accused as providing motive for his death - objection to tender of evidence concerning subject matter of blackmail

ACTS CITED:
Evidence Act

DECISION:
Objection to evidence concerning subject matter of blackmail upheld.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION



BUDDIN J


THURSDAY 8 JUNE 2006


1623/2005 - REGINA v JAMES HARRY BARTON


JUDGMENT – Admissibility of evidence concerning subject matter of blackmail

1 HIS HONOUR: Objection was taken on behalf of the accused to certain evidence upon which the Crown seeks to rely at his trial. The accused is charged with a number of offences. The first count charges him with the murder of M. between 2 and 5 September 2004. He is also charged with the murder of M.’s three-year-old daughter, N., between 3 and 6 September 2004. He is further charged with having attempted to murder M.’s five-year-old son, J., on 4 September 2004. In the alternative to that count, he is charged with maliciously destroying property intending thereby to endanger the life of J. (Because N. and J. were children it is necessary to protect their identity and that of other family members).

2 For the purposes of this application I have been provided with a document entitled Crown Case Statement, together with a number of statements of witnesses. Set out below, with some minor modifications, are extracts from the Crown Case Statement. It is common ground that it provides the necessary factual background for the purposes of the present application:

At approximately 11.30 pm on 4 September 2004 police were notified of a fire at a residence at 9 Gem Place, Springdale Heights a suburb of Albury, New South Wales. A number of phone calls were made by neighbours to 000 alerting emergency services to the fire.

Police, Fire Brigade and Ambulance services attended as did various neighbours and onlookers.

The fire had taken hold and the house was badly damaged.

Witnesses told police that a man was seen at the house while the fire was raging. This man got into a tray top utility which was parked at the side of the house and was seen to drive to the front of the house where he parked it. Onlookers recognised this man as a visitor to 9 Gem Place and asked him about the whereabouts of the children who resided in the house. The man, the Accused James Barton said that the children were inside the house. Children could be heard to be screaming. Barton walked to the side or rear of the house and broke a window and retrieved the male child, J. Barton took J. away and gave him to a neighbour who took J. to her house where she tried to treat the burns.

A child was still heard to be screaming. A young man tried to get into the house and was able to enter the house. However he was driven back by the smoke and the flames.

While the fire was still burning Fire Brigade officers wearing breathing apparatus entered the house but were unable to locate anybody. The Fire Brigade was able to extinguish the flames and eventually a more extensive search of the house was conducted by Fire Brigade personnel. During this search the body of an adult male was located under debris in the remains of the lounge room area. The body of the adult male had a wound to the rear of his head. At post mortem this was identified as a gunshot wound. There was a bullet embedded in the wound with fragments of bullet in the surrounding tissue. The body of a child was also discovered in the house.

These bodies were later identified as being those of M., the resident of 9 Gem Place, Springdale Heights and his 4 year old daughter, N. The young boy who was removed from the burning house was J., aged 5, the son of M. N. and J. resided at this address with their father. Their mother, K. had left the family some years previously and was residing in Queensland. She had no contact with her children or with M.

Barton was taken to the Albury Police Station in the early hours of the morning of 5 September 2004 and was interviewed for a number of hours. He told the police that he had attended 9 Gem Place about 10.00 am – 10.30 am on 4 September 2004. The children were there but they did not know where their father was. Barton said that he made the children some breakfast and dressed them. He then took them to his place at Wodonga for a short while and then to McDonalds for lunch. He said that in the afternoon he took them to the weir on the Waterworks and then back to McDonalds for dinner. He then took them back to their house around 5.30 - 6.30 pm or maybe later. He said that he was sorting out things in the house and in the yard to take to the Sunday market stall which he operated with N. Barton said that the children had a bath and changed into their nightclothes following which they all settled down to watch a movie “Merlin” on the television. Barton said that N. was going to sleep before the movie finished so he told her to go to bed. J. watched the movie to the end and then went to bed. Barton said that he then went outside to sort things for the market. While he was outside he heard a noise like “poof” and the house exploded with fire. Barton told the police that N. kept a lot of flammable material in the house for his leatherwork and glass engraving and other hobbies.

Police interviewed Barton for almost three hours and he was released. An investigation commenced and police became aware that Barton had been financing N. in business and that he had purchased vehicles for him. A fire investigator, Inspector Garry Malpass of the NSW Fire Brigade, examined the scene on 5 and 6 September 2004 and provided a report in which he expressed the opinion that the fire had been deliberately lit. At an early stage it was determined that N. had been shot in the head.

On 13 September 2004 Barton was arrested and was taken to the Albury Police Station where he was questioned in the presence of a solicitor. Barton brought with him to the interview a large amount of material to support his contention that he had been for many years blackmailed by N. He told police that on the evening of Friday 3 September 2003 there had been an argument with N. in which N. had demanded more money. The children were in bed asleep at this time. N. left the room and came back with a rifle which he held to Barton’s head. Barton said that a dog barked. He said that N. dropped the gun, whereupon he rushed at him and tackled him. He said that he fell back against the table where the chemicals were. Barton said he grabbed the gun and pointed it at N. and then pulled the trigger. Barton said that he threw a sleeping bag or doona over N., waited there for an hour and then went back to his home in Wodonga. Barton said that he returned to Gem Place on the Saturday morning. He said that the children were up. He gave an account of the events of the day which is consistent with what he told the police in his earlier interview. He said that they watched the movie, he was outside after the movie finished and that the house went up in flames. Barton told the police that he had moved the utility from the side to the front of the house so that the fire brigade could get in and also because someone told him to do so. It was after he moved the utility that he went back into the house and got J. out.

3 I was informed that the accused, consistently with what he told police in his interview on 13 September 2004, admits that he shot and killed M. during the course of an argument. His case is that in doing so, he was acting in self-defence. So far as the other counts are concerned, I was informed that the accused will deny that he lit the fire, and indeed may put in issue the Crown‘s contention that it was deliberately lit.

4 So far as the alleged murder of M. is concerned, the Crown will rely upon various pieces of evidence to demonstrate that the accused was not acting in self-defence. I am told that it will point to the improbability of the accused’s version as to how the fatal incident occurred. The Crown will contend that it contains internal inconsistencies. Moreover, the Crown will rely upon evidence that the firearm which was used in the shooting, which the accused said was produced by the deceased, was located at the accused’s premises. It was apparently found concealed under a mattress in a bedroom. Ammunition capable of being used in that firearm was also found at the accused’s premises. When first spoken to by police, the accused was found to be in possession of 3 bullets of a similar kind. The deceased was also found to have injuries upon him which were consistent with having being caused by the blunt part of the firearm. The firearm was damaged in a way which suggested that it could have been used to inflict the blunt force injuries sustained by the deceased. The deceased’s blood was also located upon the firearm. From all that evidence the jury will be invited to reject the accused’s version of events relating to the shooting of the deceased.

5 The Crown will also rely upon the accused’s conduct following the incident. That will include what he did both that evening and the following day. The Crown will also point to the fact that the accused falsely denied knowing the whereabouts of the deceased when first spoken to by police. Nor, of course, did he admit that he had killed him when first spoken to. The Crown will also invite the jury to infer that the accused deliberately lit the fire in order to conceal the fact that he had killed the deceased and to conceal any evidence that may have incriminated him in his death.

6 The Crown’s case is that the fire was also intended by the accused to take the lives of the children in order to prevent them from providing information to the authorities which might implicate him in their father’s death. I am informed that the Crown will lead evidence from which the jury will be asked to infer that the accused administered methadone to sedate the children prior to their going to bed that evening. The Crown will seek to prove that the accused ensured that he was outside the premises at the time when the fire started and that he apparently did nothing, at least initially, to rescue the children from the house once it started. In other words, so far as the offences said to arise from the lighting of the fire are concerned, the Crown relies upon both motive and opportunity.

7 The Crown also relies upon motive in support of its case that the accused murdered M. Put simply, the Crown case is that the accused was motivated to kill the deceased because for a number of years the deceased had been blackmailing the accused, a course of conduct which the Crown alleges the accused wished to bring to an end. It is to that body of evidence that the present objection relates. The subject matter of the blackmail was adverted to by the accused in his interview with police on 13 September 2004. The following exchanges occurred in that interview:

Q180. What was M. blackmailing you against?
A C. We went out camping once, I had a few too many, I attempted to touch this young kid, I stopped when he said, and from then on, M. has sort of, I’ve been paying M. to be quiet.

Q 181. How old was this young kid?
A 11.

Q.210 Reading the note onto the record. To S, M. has been blackmailing, sorry blackmailing me since about mid 1994, because of what I did to C. Fantasylink shut down because M. could not stay away from drugs and his gambling. I lost over $16,000, Doug Richardson lost his home over it, M. lost nothing. I could do nothing because of C., what M. has on Doug, I don’t, I do not know, Doug did nothing when he lost his home. All the bail money I gave you was spent by M., the cars and 4-wheel drive vehicles were paid for by me, M. is always putting his hand out for money. M. has even told me about what he did to D., his brother, and as he puts it, in gaol, does not worry him but he has said that I will keep paying him every time he want some money, even when I had my ---

A Gall bladder.

Q211 --- gall bladder removed in hospital ---

A Yeah

Q212 --- he still came around with his hand out wanting money, the very day I got out, and I have been paying M. every week since then, anything from $50 to $100 every week, money for a new shop in Mate Street, a different ink and the paper the, I then had to pay all bills for the shop as well as sign a form saying I’ll pay him $20,000 and buy him a Mazda Bravo ute, rego number Y-U-C-2-7-2, or Y-V-C-2-7-2, my mother died so he said I could pay him up to, the note continues, Mum died in hospital on 20.04.04, Mark said I could sell the house to pay him the money or he would tell the police about C.

Q269. How was M. able to blackmail you in relation to the C. matter?

A Well, he was there when it happened. Camping, drinking. He said stop it and I did.

Q270. Who said stop it?

A C. And then everything was alright for a couple of months, then the business started to go downhill.

8 In addition, the accused provided investigating police with numerous documents purporting to be records of money advanced to the deceased because of the blackmail. Indeed, the words “Blackmail over C.” were written by the accused on a number of the documents. The accused provided the police with a note in which he had written: “M. has been blackmailing me since about mid to late 1994 for what I did to C. M. has been paid over 30,000 dollars...he also got me to sign a bit of paper to say that I owe him money for wages to sum (sic) of $20,000 for the shop in Mate St Albury as well as pay all bills from the shop all because of what I did to C.”

9 The accused’s attitude to having been blackmailed is quite apparent. In the same ERISP interview he said:

A 51: ...I was sick of this, sick of this blackmail, sick of all this, what was going on, my mother had just died, he was real, getting’ real paranoid, because of the drugs he was on, the week before that, he shoved a syringe in me finger with blood on it, and said there you are prick, welcome to the Hep C club. Now I’m not fucking around any more, you’re going to start payin’ me more money...

10 As I understand the situation, the accused and the deceased had known each other for many years and were in regular contact with one another. They had been partners in various business ventures, which included running a stall at a weekly market in Albury at the time of M’s death. As I have said, the accused had been providing financial assistance to the deceased for various ventures over an extended period of time. Indeed, the deceased was due to pick up a Toyota Hilux vehicle from a local dealer on the day after he was shot. The deceased informed the dealer that the accused would be paying for the vehicle. Furthermore, the accused’s mother had died recently and he was expecting to inherit property from her estate. The deceased was aware of that fact and was pressuring the accused in the hope of obtaining further moneys, from the proceeds of the estate.

11 Ms Yehia, who appears on behalf of the accused, readily concedes that the fact that the accused was being blackmailed is of significant probative value because it is capable of providing the accused with the motive not only to kill the deceased, but also to do so with the requisite intention to constitute the offence of murder. Counsel also concedes that evidence of the length of time over which the blackmail had extended and the amounts of money involved are also relevant. That is because that evidence demonstrates the significance which the accused attributed to the subject matter of the blackmail and the lengths to which he was prepared to go to prevent the information from becoming public.

12 Objection however is taken, pursuant to s 137 of the Evidence Act, to the Crown leading the subject matter of the blackmail. Section 137 is in the following terms:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

13 In essence, it is submitted that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. The proper approach to the determination of that question was enunciated by the Court of Criminal Appeal in R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326. Accordingly, objection is taken to the evidence of the admissions made by the accused in his ERISP, to which reference was made earlier. In addition, objection is taken to evidence of representations made by the deceased to various witnesses that he was blackmailing the accused because the latter had behaved in a sexually inappropriate manner towards a young boy a number of years earlier.

14 The accounts given by the various witnesses as to the nature of the representations made by the deceased vary considerably. Ms Yehia in her submissions described the situation in the following terms:

Brent Clarke states that the deceased told him that the accused had “molested” a boy. Barbara Elliott was told that the “...young boy had initiated something sexual with Jamie and that Jamie didn’t stop”. Sophia Laven states that the deceased told her that the accused “...had once done something to a 7 year old boy when they were on a camping trip”. Kerrianne Russell was told that the accused had been “...caught with a minor”. In his ERISP the accused refers to his conduct as “attempting to touch this young kid”.

15 In the circumstances, it is far from clear that the accounts can be regarded as all relating to the single incident concerning the young boy (C.) about which the accused made admissions. It is pertinent to observe that the young boy in question did not make any complaint about the incident at the time. Indeed, in a statement to police made many years later (by which time he was an adult) the alleged victim denied having been “touched in an inappropriate way” by the accused. He described thinking that what had happened “was a massage sort of thing”.

16 The accused submits that the material relating to the subject matter of the blackmail is of little probative value when considered in the light of the remainder of the material upon which the Crown is able to rely (and in respect of which, as I have said, no objection is taken). It is submitted that what is important is the state of mind of the accused and the strength of the motive which the accused had to kill the deceased. That is demonstrated, it is submitted, by the significance which the accused attached to the fact that he had been, and continued to be, blackmailed. It is submitted that the critical issue is the extent of the hold which the deceased had over the accused and the lengths to which the accused was prepared to go to keep the matter quiet. Those matters can readily be inferred, so it was submitted, from the length of time over which the blackmail had been going on and the not inconsiderable sums of money which had been paid as a consequence of it.

17 Moreover, the answers which the accused gave in his ERISP suggest that the accused had reached a point of despair and frustration about the continuing demands to which he was being subjected by the deceased. The subject matter of the blackmail had not changed over the years. What had changed were the renewed demands made by the deceased, in the context of the other matters to which the accused referred in his interview with police. It was those matters, so it was submitted, which were capable of giving rise to the inference that the accused had become sufficiently exasperated to be prepared to kill the deceased.

18 In those circumstances, it was submitted that given that the additional material had only very limited probative value, all that remained was unfair prejudice. It was submitted that a jury could scarcely be expected to be other than prejudiced by evidence that the accused had behaved, or attempted to behave in a sexually inappropriate fashion towards a young boy. The Crown submitted that the jury would not reach such a conclusion because the incident was, particularly in light of C.’s statement, a relatively minor one which had occurred many years ago. Indeed, the Crown indicated that it was prepared to confine the evidence which it would lead from other witnesses to the evidence of misconduct admitted to by the accused.

19 However, even assuming that it was possible for it to so confine the evidence, it is still not easy to reconcile the Crown’s submission that the accused’s conduct was not particularly serious (as these matters go) with its contention that the evidence had real probative value. In any event, if the incident in question was to be regarded as only relatively minor, then one may ask, rhetorically, why the accused would continue to allow himself to be blackmailed to the extent which he had been. In my view, there is a real danger that a jury would reason from all the circumstances that the hold which the deceased had over the accused indicated that the extent of the accused’s misconduct went well beyond the one isolated incident. Indeed, the flavour of the totality of the representations made by the deceased is capable of supporting such a view.

20 Of even greater concern, so it is submitted, is the risk that the jury may speculate that the accused had interfered with the young children of the deceased, and that in an endeavour to cover up those offences had set fire to the house with them in it. There is certainly evidence that they were from time to time in his care, including during the entirety of the day of the fire. I note, in passing, that contained within the representations made by the deceased are suggestions that the accused had indeed interfered with the children. The Crown says that such a suggestion forms no part of its case and that it would be prepared to indicate as much to the jury.

21 The case which the Crown presents in respect of counts 2 and 3 is somewhat disturbing. It contends that the accused, a person of apparently stable mind, deliberately and callously set fire to a house knowing full well that there were young children inside. The evidence to which objection is taken suggests that the accused has in the past shown such indifference to another young person as to be prepared to sexually exploit him. In my view, were the impugned evidence permitted to be led there is a real risk that the jury, notwithstanding being directed not to do so, would engage in an impermissible line of reasoning to the effect that a person who is prepared to engage in a morally repugnant and sexually exploitative way towards one child, is also likely to be prepared to conduct himself in the fashion alleged against the accused in counts 2 and 3.

22 The Crown referred to a number of authorities including Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590; R v Kovacs [2000] NSWCCA 74; (2000) 111 A Crim R 374; R v Clark [2001] NSWCCA 494 and R v Quach [2002] NSWCCA 519. In my view, they provide little assistance in the resolution of the present case. It may be accepted, as those cases demonstrate, that prior discreditable acts of a person, even those of a criminal nature, may be admissible if they bear, in the relevant sense, upon a fact in issue. In most of the authorities referred to, the evidence in question acted to illuminate the true nature of the relationship between the accused and another person. The real issue in the present case, however, is the application of s 137 of the Evidence Act in circumstances in which there is likely to be considerable evidence about the nature of the relationship between the accused and M..

23 Finally, the Crown submitted that it anticipated that an issue may arise to the effect that the accused was acting under provocation when he killed M.. Counsel for the accused indicated that such an issue may arise depending upon how the evidence unfolded. I would not regard that as a sufficient foundation for permitting the evidence to be led. I am not persuaded, for the reasons which I have already given, that the issue of provocation would alter matters even if it did arise.

24 It was for those reasons that I upheld the objection.

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Amendment to judgment

Originally there was a non-publication order in place in relation to these reasons but that order has now been vacated.





LAST UPDATED: 17/07/2007