De Vries v The Queen
[2013] VSCA 210
•13 August 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0296
| RICHARD STEPHEN DE VRIES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO and OSBORN JJA and HARGRAVE AJA | |
| WHERE HELD | MORWELL | |
| DATE OF HEARING | 13 August 2013 | |
| DATE OF JUDGMENT | 13 August 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 210 | 1st Revision: 23 August 2013 – [12], [23], [28], [29], [30], [38] |
| JUDGMENT APPEALED FROM | R v De Vries [2012] VSC 564 (Lasry J) | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Murder – Manslaughter – Remarks made by prosecutor about a prosecution witness in final address – Prosecutor not relying on improper inferences – Defence did not rely upon evidence of witness in question – Trial judge gave direction in respect of the remarks in question – R v MRW (1999) 113 A Crim R 308; R v Kennedy (2000) 118 A Crim R 34; R v Teasdale (2004) 145 A Crim R 345 distinguished – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Dann | Pica Criminal Lawyers |
| For the Respondent | Mr B Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
I invite Osborn JA to deliver the first judgment.
OSBORN JA:
On 21 June 2012 a jury convicted Richard De Vries of one charge of murder and one charge of manslaughter. He now seeks leave to appeal against these convictions on the basis of observations concerning a witness made by the prosecutor in the course of final address.
The charges arose from a violent confrontation in the early hours of 19 February 2011 in the car park of residential units in Moe. In the course of that confrontation the applicant fatally stabbed Evan Rudd (leading to the conviction for murder) and shortly thereafter fatally stabbed Roy Poole (leading to the conviction for manslaughter).
On 18 February 2011 the applicant visited his friend, Wesley Bremner, who lived at unit one, 1 High Street, Moe. The unit is part of a block of six units, with three units on each side of a driveway. The applicant arrived in a 1980s Mercedes-Benz at about 6:30 pm and parked at the rear of the block. He met up with his stepbrother Steven Turner at Bremner's unit. Turner had arrived earlier with another man. At around 7:00 pm the applicant and Turner walked into Moe, where they attended two drinking establishments and consumed a number of drinks.
The deceased men, Evan Rudd and Roy Poole, both aged 29, were friends. Rudd lived in unit six, an upstairs unit in the same block of units as Bremner. Rudd lived with Rodney Havis (whom the judge described as the key witness at the trial) and Havis' girlfriend Kristey Lowater. On the night in question, Poole finished work and went to visit Rudd, arriving at about 10:00 pm. He parked his Holden Commodore behind Havis' allotted car space and in doing so, he blocked in the applicant’s car.
Shortly after midnight, the applicant and Turner returned to find the applicant’s car parked in. After knocking on the doors of several residents, the applicant began to yell out for the Commodore to be moved. The occupants of unit six heard the applicant yelling and a series of exchanges occurred between the applicant and Havis, who was standing at the upstairs balcony of unit six. Havis gave evidence that he heard the applicant yell out, 'Move your fucking car, move it or I’ll smash it up. I’ll slash the tyres'. Havis responded by yelling back: 'You don't live here, you don't pay rent so just fuck off'.
Havis, Poole and Rudd left unit six for the purpose of moving the Commodore. As they went downstairs, the applicant was heard to yell out, 'Get a knife.' Havis picked up a sharpening steel from next to the front door. There was a further verbal exchange between the applicant and Havis. Havis dropped the sharpening steel and punched the applicant in the face. The applicant fell backwards to the ground over a railing. At this point the applicant was being told to get in his car and go, and Bremner was ushering the applicant towards his car.
Poole reversed the Commodore, allowing the applicant to move his car. The applicant sat in his car for some time. He then drove towards where Rudd, Poole and Havis were standing, where he stopped and attempted to open the door of his car, claiming that he needed to collect some clothes from Bremner. Rudd told the applicant to come back later, and kicked the door shut. Havis said to Rudd 'Just let him get his clothes.'
The applicant got out of his car and stabbed Rudd a number of times to the chest. Havis said it looked like the applicant was punching Rudd all over the chest. Rudd went limp. At that point, Poole walked up to where Rudd was and as he got closer he went to grab the applicant, at which point the applicant stabbed Poole twice to the upper body.
Havis pulled the applicant away from Poole, knocked him to the ground and kicked him to the left side of the face. The applicant got up and chased Havis, who ran to the end of the driveway. Havis ultimately turned around and by that stage observed that the applicant was in his car. He then saw Turner standing in the driveway yelling and screaming, 'You fucked up this time, didn't you, you really fucked up, cunts'. Turner then got into the passenger seat and the car drove off. Havis stated, and reiterated in further cross-examination, that he had not seen Turner during the fighting, but only when the applicant and Turner had first started yelling to move the car, and then at the later time when the car ultimately drove off.
As the sole ground of appeal on conviction relates to the prosecutor's comments about Turner's evidence, it is necessary to refer in some further detail to the parts of his evidence specifically relating to the events described above.
Turner gave evidence that after the applicant had asked for the Commodore to be moved, three people came out of one of the units and walked quickly towards the applicant. He heard the applicant call out to Bremner for a knife. The first thing Turner saw was a pitbull terrier which came running out of the unit and past him, and although the dog did not do anything to them, Turner was 'pretty positive' that was why the applicant asked for a knife. The three men approached the applicant and, because they had heard him ask for a knife, they got aggressive and the applicant got punched by the man in the middle. After the applicant was punched and fell over the railing, Turner heard the man who punched the applicant asking 'Where's your mate?' which he understood to be a reference to him. Not wanting to become involved, Turner went around the back of the units down the fence line and then went out to the front of the units and was looking down the driveway 'to see if they were still laying into him.' He went to the applicant's car and got into the front passenger seat. By this time, the Commodore had been moved, although he did not see it being moved. The applicant was in the car and said to him 'Where the fuck did you go?' Turner observed blood streaming from the right side of the applicant's face. The applicant said, 'Well you could have helped' and then reversed out of the driveway. The applicant's car then started to move towards the front of the units and, as they were slowly driving out, one of the three men was bent over the car and said something, and was screwing his face up. The applicant stopped and got out of the car. Turner could not see from the passenger seat what was going on but after about 10 seconds he stepped out of the car himself. When he got out of the car, the applicant was getting back into the car. Turner had one foot in the car and said to the three men, 'Youse fucked up, you shouldn't have hit him.' He said he saw one man slouching, with his hand to his side, who was moaning and looked to be in pain. The man had a white T-shirt on but Turner did not see any blood. Turner did not see any fighting or any knife. He got back in the car and then drove out onto High Street.
In cross-examination, Turner denied defence counsel's suggestion that he had only entered the applicant's car after the fighting had ceased. Rather, Turner reiterated that he was in the car from the earlier time, but he did not see any fighting between the applicant and the other three men. The incident felt like it was 10 or maybe 20 seconds, it all happened really fast. He agreed that as they were leaving, they were getting yelled at, and the words of abuse included terms like 'fuckhead'. He also agreed that when he said, 'You fucked up', that was something he decided to say and it had nothing to do with anything the applicant had done.
The applicant did not give evidence. Defence counsel argued that Havis and both the deceased men set upon the applicant, who responded by defending himself with a knife.
An occupant of unit four gave evidence that she heard a person say that he had been stabbed and then heard the words 'Oh shit I didn’t mean to stab two.' She denied in cross-examination that she might have confused the word 'two' for 'you', reiterating that she heard, 'I didn't mean to stab two.' Another occupant of unit four gave evidence that she heard something said about two people being stabbed, and somebody said that they had 'stabbed the wrong one.' She denied in cross-examination that she might have confused the word 'two' for 'you'. She was not cross-examined about her evidence that she heard reference to someone stabbing 'the wrong one'.
It is apparent that Turner was a material eye witness to events surrounding the killings but his evidence was also subject to a number of obvious limitations. In the course of his final address the prosecutor said the following about Turner:
I want to mention at this stage the witness, Steven Turner, his mate that he had been drinking with, he doesn't really hear or see much about the critical thing, does he? Now, you might wonder what it is that he was doing as a witness. The prosecution has a job to do. It's different from the defence. Very different, as you can tell, straight away. My learned friend has got the job of defending the accused man in the best way he can. Challenging the Crown case, making sure that things he needs to do are done. The prosecution has to call all relevant witnesses, but they don't have to like him and they don't have to believe him. And Steven Turner is a bit like three wise monkeys wrapped up into one. He heard, saw and - it was as though he wasn't there. He didn't see anything. The critical part of the case, he can't bring himself to say what really happened. Now, that doesn't turn into a positive for the Crown and allow you to work it out that because he didn’t see it he must be friendly with the accused, and he didn't want to say anything to put his mate further in. You can't work that way backwards. But the simple fact of the matter is you might think at the end of the day he's not much use to anyone in this case.
The prosecutor subsequently referred to the evidence of other witnesses, including Havis, and stated further:
So it's entirely up to you as to how you see [Havis'] evidence stand, and how much of the evidence you reject or accept from him. But he stands as a contrast to Steven Turner, he says what he saw happened, Turner, for all else I say about him, he was, you might think, it's a matter for you, in a perfect position to truthfully detail what happened. He wasn't involved in the fight, he was nearby, he was nearby, he was in a very good position to see it. As I say, you don't turn that into a positive account for the prosecution, but for all the criticisms you'll hear of Rod Havis, bearing in mind what I say of the things that might have affected his position and his ability to recall things.
It was submitted at trial and it is again submitted on appeal that the prosecutor's comments implicitly invited the jury to speculate that Turner was being deliberately dishonest in order to protect the applicant and that in turn this necessarily implied Turner was lying because he knew the applicant was guilty.
It is further submitted that the criticisms made of Turner were not put to him in the course of his evidence and were inherently unfair.
It is also submitted that if the prosecutor was of the view Turner was a dishonest witness he should not have been called because the critical gaps in Turner's evidence which were the subject of comment were apparent from his police statement.
I accept the proposition that where the prosecution does call a witness it may not attack the credit of that witness in final address without laying grounds for that attack. In R v Kennedy[1] the Crown Prosecutor in his closing address said that one of the witnesses called by the prosecutor gave evidence designed to protect the accused and to best look after his interests. No application had been made to have this witness declared hostile and no suggestion had been made to her that her evidence was designed to protect the accused. She had had no opportunity to meet the allegations. This created such unfairness as to cause the trial to miscarry.
There can be no question but that the Crown Prosecutor had a responsibility to present the crown case properly and fairly … Fairness not only to the witness but to the appellant required that the witness should have been afforded the opportunity to address the substance of the critical submissions later made to this jury. Since the Crown Prosecutor did not afford the witness the opportunity to meet these assertions later put to the jury, there was no justification for their being made.[2]
[1](2000) 118 A Crim R 34.
[2]Ibid 41 [37] (per Studdert J, with whom Heydon JA and Greg James J agreed). See also R v MRW (1999) 113 A Crim R 308; R v Teasdale (2004) 145 A Crim R 345. See also [34] of this judgment.
Nevertheless in my view the trial in the present case did not miscarry.
First, it was not improper for the prosecutor to indicate to the jury that the Crown had an obligation to call all relevant witnesses but that this did not mean that the Crown's position was that Turner should be uncritically accepted. A prosecutor's obligation is not simply one to call only those witnesses which he or she regards as truthful and credible.[3] Rather, the prosecutor’s primary obligation is to call relevant witnesses and he or she owes a duty of fairness to the accused in this regard, although he or she retains a discretion not to call an apparently relevant witness if he or she is satisfied the witness is not a witness of truth and reliability. The prosecutor could not however readily have refused to call Turner in the present case. He was an eye witness to the course of events in issue. Indeed the applicant does not contend that the prosecutor should not have called Turner. In turn it was not improper for the prosecutor to comment upon the probative value of Turner's evidence. The real question in this case is whether he went improperly beyond that.
[3]Richardson v The Queen (1974) 131 CLR 116, 119; R v Apostilides (1984) 154 CLR 563, 575.
Secondly, the suggestion to the jury that they might reason in a particular way did not invite them to do so. The first statement complained of concluded:
The critical part of the case, he can't bring himself to say what really happened. Now, that doesn't turn into a positive for the Crown and allow you to work it out that because he didn't see it he must be friendly with the accused, and he didn't want to say anything to put his mate further in. You can't work that way backwards. But the simple fact of the matter is you might think at the end of the day he is not much use to anyone in this case.
The second statement complained of was also followed immediately by the statement:
As I say, you don't turn that into a positive account for the prosecution …
It follows that the initial suggestion made by the prosecution was not integral to the way the Crown put its case and the jury were not invited to reason adversely to the applicant on the basis of it.
Thirdly, the perception of the trial judge, who was immersed in the trial, was that the invitation to speculate did not give rise to an irremediable problem. His Honour was asked to discharge the jury following the prosecutor's address but refused to do so. In his ruling he stated as follows:
In my opinion, [the prosecutor's] submission does carry with it an invitation, to some degree at least, to the jury to speculate about what Mr Turner's motives might have been in giving the evidence he gave, although there's a preceding step, which is that the jury will have to decide what they make of Turner's evidence and what they make of him as a witness. And if they find him to be an unsatisfactory witness, and I do not think necessarily that that is an inevitable conclusion, that they may then be tempted to consider that his shortcomings as a witness really represent his unwillingness to describe what occurred because he wished to protect the accused. It seems to me that it will be appropriate for me to tell the jury in relation to Turner's evidence and [the prosecutor’s] submissions, that [the prosecutor] was entitled to criticise the evidence of a Crown witness, if in his submission, and it was his submission, that evidence is not reliable or not accurate, but that the jury should not engage in reasoning beyond that and speculate about whether a motivation to give the unsatisfactory evidence, if they find it was unsatisfactory, was the product of a desire to protect the accused. [The prosecutor] makes the point in his submissions that he emphasised to the jury that there was no benefit to be sought by the Crown in the criticism he made of the witness, and I would propose to reinforce that. I think on balance that it would have been better if the comments that [the prosecutor] made about Mr Turner's motivations had not been made, but they having been made, I consider that by directing the jury as I propose to, in relation to that issue, the jury will follow the directions I give them. I have to assume they will. So, on that basis, the high degree of need, which must necessarily be present for the jury to be discharged, particularly at this stage of the trial, is not met, and the application is refused.
Fourthly, defence counsel himself addressed on the basis that Turner was not a reliable witness and not of much assistance to the jury. He directly echoed the prosecutor's proposition that the jury might think at the end of the day Turner was not much use in the case. Defence counsel suggested there were significant problems with Turner's reliability. He commenced those criticisms by saying:
Then we have the evidence of Steve Turner. I'd suggest there’s significant problems with his reliability. There's a number of warning signs about him.
After making specific criticisms, defence counsel added:
He says, as you know, that he doesn't see any of the fighting. The prosecutor tried to make a bit of capital out of that. If he was trying to help [the applicant] you'd think he might do a bit better job than what his evidence actually is. His evidence, I’d suggest, is really something that you would just put to one side. And it's not evidence that advances probably either case very far.
He concluded by submitting:
I'd suggest, the state of the evidence is such that you just couldn't make a finding as to whether Turner was in the car when it was initially moved or whether he's somehow confused and he's not in the car until the end of the incident when he gets in, according to Mr Havis, up near that front gate area, probably after he's come back, after taking off around the front part area of the flats, as he said he does. And that evidence of his about taking off, is logical and is consistent, given what he's deposed to, that is, three men confront DeVries, the punch and the associated comments following on from that.
There was obvious force in this last submission that the evidence did not permit satisfactory findings as to where Turner relevantly was at the time of the killings. And it is plain the defence did not rely on Turner's evidence to make out the defence of self defence.
Fifthly, the trial judge directed the jury with respect to the burden and standard of proof and the need for the jury to be satisfied of the Crown case by the evidence. No complaint is made as to these directions which formed the fundamental framework within which it must be assumed the jury approached the matters in issue. The general directions included the following statement:
On a day-to-day basis in our ordinary lives of course we do make guesses and speculate all the time. You could not function if you were not prepared to take that risk. But in a criminal trial such guesswork and speculation is not open to you and you must be very careful about the way that you reason in coming to a conclusion or drawing an inference about an important issue in the case. You must only draw inferences that are reasonable.
Sixthly, his Honour summarised Turner's evidence for the jury in the course of his charge and then gave them specific directions:
There is something else I should say to you about Steven Turner, and what [the prosecutor] put to you during the course of final address. [The prosecutor] was critical of Turner, and he was entitled to be critical of him, and the evidence that he gave. He put to you at one stage in his final address that Turner could not bring himself to say what happened, and referred to the possibility, though he was not putting it as a fact, but referred to the possibility that in giving the evidence he gave, Turner did not want to put the accused in further. And he went on to say, you might recall this, such a conclusion does not turn into a positive for the Crown. You cannot use it that way. And his submission to you in the end was that Turner was not much use to anyone. What you make of Turner's evidence is entirely a matter for you. But I direct you as a matter of law, first of all that, that it is what you make of Turner's evidence that is important. But the second thing which flows from all of the things that I think I have been saying to you, is that if something is not the subject of evidence, then it is not something about which you can speculate. You can accept some or all of Turner's evidence, or reject some or all of his evidence, but you cannot speculate about his motivations and for the evidence that he has given, unless that has been the subject of specific evidence, which it has not been. So, to the extent that anything that [the prosecutor] might have said to you in his final address has raised the possibility about what motivation Turner might have had for giving his evidence, then you should disregard that altogether. It is not relevant, not appropriate for you to guess about things like that.
No direction of this kind was given in the case of MRW,[4] Kennedy[5] or Teasdale,[6] upon which cases counsel for the applicant relied. The last decision specifically contemplated that an adequate direction might cure the kind of problems that are in issue.
[4]See R v MRW (1999) 113 A Crim R 308, [45].
[5]R v Kennedy (2000) 118 A Crim R 34, [40].
[6]R v Teasdale (2004) 145 A Crim R 345, 351 [28]-[29].
The trial judge's direction specifically linked the proper approach to Turner's evidence back to his Honour's general directions that if a fact was not the subject of evidence then it was not something about which the jury could speculate and that they must distinguish between speculation and the drawing of inferences.
His Honour's direction further specifically warned the jury in appropriate terms not to speculate about Turner's motives and directed them to disregard anything the prosecutor may have said about such motives.
It is difficult to see that a clearer and more comprehensive direction could have been given to the jury. There is no reason to reject it as inadequate particularly having regard to the other circumstances to which I have already referred. The prohibited reasoning which is in issue, including the initial identification of a potential motive for false evidence was not so irresistibly seductive that a jury would be unable to obey the direction given. Moreover as the High Court has affirmed, the capacity of juries to disregard prejudicial matters and decide cases in accordance with judicial directions is fundamental to our system of criminal justice.[7]
[7]Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (per Gleeson CJ and Gummow J); Dupas v The Queen (2010) 241 CLR 237, 248-9 [29].
Seventhly, I should add for completeness that this case is clearly distinguishable from the New South Wales authorities to which counsel for the applicant referred[8] as; (a) the prosecution did not invite the jury to reason in the manner now impugned; (b) the defence did not rely on the evidence of the relevant witness, and; (c) the judge gave a comprehensive, clear and adequate direction to the jury sufficient to meet the circumstances of the case.
[8]See [34] above.
I would dismiss the application for leave to appeal against conviction.
BONGIORNO JA:
I too would dismiss the application for leave to appeal against conviction for the reasons given by Osborn JA.
HARGRAVE AJA:
I agree.
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