Director of Public Prosecutions v Bourbaud - [2011] VSC 103

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 120 of 2010

DIRECTOR OF PUBLIC PROSECUTIONS

KENNY MAX BOURBAUD

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2011
DATE OF RULING:	23 March 2011
CASE MAY BE CITED AS:	DPP v Bourbaud
MEDIUM NEUTRAL CITATION:	[2011] VSC 103

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CRIMINAL LAW – Evidence Act 2008 – Section 38 – Application by prosecutor to cross-examine prosecution witnesses – Unfavourable witnesses – Earlier pleas of guilty by witnesses to assault preceding stabbing – Evidence inconsistent with pleas – Whether evidence only relevant to credit – Whether to limit use of evidence under section 136.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Rose SC	Office of Public Prosecutions
Ms M Fox
For the Accused	Mr W Stuart	Serratore Legal

HIS HONOUR:

The accused man, Kenny Max Bourbaud, is charged with the murder of Uili Tiotala at Melbourne on 9 July 2009.

In essence, the Crown case against the accused is that he stabbed the deceased with a knife which he obtained from inside the nearby premises whilst the deceased was being assaulted, not only by the accused but by the accused’s father Max Bourbaud, his mother Francie Bourbaud and another man named Scott Smith. It is not suggested that the stabbing of Mr Tiotala by the accused is something that was within the contemplation of those other three people at the time, and they are not said to have responsibility for the homicide that occurred.

Indeed, Mr and Mrs Bourbaud as well as Smith were themselves charged with the offence of assault in relation to these matters, pleaded guilty and were sentenced by Coghlan J in this Court on 3 September 2010 to each pay a fine of $1,500. I will return to the detail of this but in November 2010 each of these three people made statements which, for reasons that will become apparent, appear to be at odds with with their pleas of guilty. At a trial before T. Forrest J in December of 2010 each gave evidence as a prosecution witness on a preliminary Basha hearing[1] and then before the jury, before the jury were discharged by his Honour for reasons irrelevant to this ruling. I am the trial judge for the re-trial.
[1]See R v Basha (1989) 39 A Crim R 337 at 339 per Hunt J.

Pursuant to section 18 of the Evidence Act 2008 (Vic), Mr and Mrs Bourbaud, as the parents of the accused, were entitled to object to being required to give evidence on his trial but neither of them have made, or now make, such an objection.

Application for leave to cross examine Crown witnesses

Pursuant to sections 38 and 192A of the Evidence Act, on behalf of the Crown, Mr Rose SC has applied for an advance ruling granting the prosecution leave to cross examine each of the three witnesses: Max William Bourbaud, Francie Bourbaud and Scott Smith. The application is opposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 103
Decision Date: 23 March 2011

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Bourbaud, the case was heard in the High Court of Australia. The primary issue was whether the Director of Public Prosecutions (DPP) should be permitted to cross-examine witnesses who had previously pleaded guilty to assault charges related to the same incident in which the accused was charged with stabbing. The inconsistency between the earlier pleas and the proposed testimony raised concerns about the admissibility and relevance of this evidence under the Evidence Act 2008.

The court was required to determine the scope of section 38 of the Evidence Act, which allows for the cross-examination of prosecution witnesses, and how it interacts with section 136, which provides for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Specifically, the court needed to decide whether the evidence in question was only relevant to the credibility of the witnesses or if it had independent probative value. The court also had to consider whether the trial judge had the authority to limit the use of this evidence under section 136.

The High Court found that the trial judge had correctly exercised his discretion under section 136 by excluding the proposed cross-examination. The court held that the evidence of the prior pleas of guilty was not admissible as it had no independent probative value beyond attacking the credibility of the witnesses. The court emphasised that such evidence could unfairly prejudice the accused by suggesting a propensity to commit violent acts, which was not directly related to the facts of the current case. Consequently, the trial judge's decision to limit the use of this evidence was upheld.

The final orders confirmed that the evidence of the witnesses' prior pleas was inadmissible, and the court affirmed the trial judge's exercise of discretion under section 136 of the Evidence Act. The decision underscored the importance of balancing the probative value and prejudicial effect of evidence, particularly in criminal trials where the risk of unfairness to the accused must be carefully managed.

Orders