Director of Public Prosecutions v Baker (Reasons for Ruling No 3)

[2009] VSC 427

IN THE SUPREME COURT OF VICTORIA	Not Restricted
CRIMINAL DIVISION
No. 1637 of 2008
DIRECTOR OF PUBLIC PROSECUTIONS
v
NEIL ALLAN BAKER

Reasons for Ruling No 3

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	29 October 2008
DATE OF REASONS:	29 September 2009
CASE MAY BE CITED AS:	DPP v Baker (Reasons for Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 427

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Criminal law and procedure – trial – murder – application by defence for discharge of jury during prosecution final address – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Gibson	Office of Public Prosecutions
For the Accused	Mr M Rochford	Victoria Legal Aid

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Reasons for Ruling No 3

HIS HONOUR:

1. In this trial, held at Ballarat, on 29 October 2008 I refused an application by counsel for the accused to discharge the jury without verdict. The application was premised upon part of the final address of counsel for the prosecution.

2. The Ruling (No 3) appears at T.527. In it I stated that, as the jury was waiting, I would give my reasons later. Unfortunately I did not return to the matter and now publish my reasons. I regret my solecism. In fact the reasons appear clearly in discussion with counsel antecedent to the Ruling: T 515-526 particularly at T 524. Nonetheless, it is desirable that they are set out formally.

3. During the prosecutor’s final address, he referred to Exhibit F, a one page typed statement provided on 18 January 2007 to police by the acccused’s solicitor in the accused’s presence and with his authority. The statement was by the accused and purported to give an account of some events in relation to the death of the deceased. At that time the police did not know the deceased was dead. They immediately attended his flat, broke in and found him dead. The accused exercised his lawful right not to answer police questions, and at trial exercised his lawful right not to give evidence.

4. In the prosecutor’s final address he reviewed Exhibit F and considerations arising in relation to it (T 510-513). The analysis was appropriate. In the course of the analysis the learned prosecutor stated that the Exhibit was “minimalistic”, “guarded” and “deficient” and “doesn’t tell the whole truth”. Then at the lunch break, defence counsel applied for discharge of the jury by reason of those comments and that analysis. Essentially, Mr Rochford submitted that the prosecution final address wrongly imposed a burden of proof upon the accused or could wrongly infringe the right of the accused not to answer police questions.

5. As I stated in discussion with counsel, in my view the prosecution final address neither had a tendency to impose a burden of proof upon the accused nor had a tendency to infringe the accused’s right of silence. The prosecution final address was confined, and precisely confined, to an analysis of the document, which was a voluntary out-of-court statement of the accused. There was no risk of any substance, or risk at all, that the jury, properly instructed as to the onus of proof, would be likely to do any more than apply the analysis to the document. There was no risk that the jury so instructed would be likely to reason adversely to the accused as to his silence to the police or in court.

6. For those reasons I refused the application to discharge the jury.

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