Director of Public Prosecutions v Dixon (Ruling No 2)

[2021] VSC 464

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0264
S ECR 2019 0265
S ECR 2019 0266

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK DIXON

and

STEPHEN TAHANEY

and

JACK HARVEY

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JUDGE:	Coghlan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2021
DATE OF RULING:	28 July 2021
DATE OF WRITTEN JUDGMENT:	4 August 2021
CASE MAY BE CITED AS:	DPP v Dixon & Ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 464

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CRIMINAL LAW – No case to answer application – Attempted murder – Statutory complicity - Evidence capable of supporting a guilty verdict – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke QC with Mr J Shaw	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Ms L Ristivojevic	Sarah Tricarico Lawyers

HIS HONOUR:

1. At the close of the prosecution case, after the co-accused Stephen Tahaney had given evidence, Jack Harvey made a no case application with respect to charge one on the indictment, attempted murder.  It was submitted  that for the crime of attempted murder to be committed, the prosecution has to prove intention to kill.  That submission is correct.  It was further submitted that there was insufficient evidence for the jury to conclude beyond reasonable doubt that Jack Harvey was party to an agreement to kill Said (Sid) Morgan.

1. The prosecution case stated briefly is that Stephen Tahaney shot Sid Morgan intending to kill him.

1. The principal way the case is put is that:

·Stephen Tahaney, Mark Dixon and Jack Harvey had gone to 24 Spraypoint Drive Point Cook to kill Sid Morgan.

·That on the evidence it can be shown that Sid Morgan was not armed:

(i)     There are text messages at about 10.30 pm in which Morgan is trying to obtain a weapon.

(ii)  On the prosecution case, there is insufficient time for such a weapon to have been delivered.

(iii)             The use of the bag to conceal the gun was pointless and it would have been much more effective to produce the gun.

(iv)              Given Sid Morgan’s tendency to use firearms, why didn’t he use it?

·That there was ample opportunity for the three accused to have discussed Sid Morgan’s threats on the way to the Grandview Hotel, at the Grandview Hotel and when coming home from the  Grandview Hotel.  Stephen Tahaney accepted that the matters had been discussed in those settings.

·That Mark Dixon had been separately threatened by Sid Morgan and since the decision had been reached that Mark Dixon and Jack Harvey would spend the night at the Savoy Hotel at Brighton, both Mark Dixon and Jack Harvey knew of those threats.

·While the three accused were at the Grandview Hotel, Morgan’s conduct became much more threatening including information that he was going to Tahaney’s home whilst armed.

·That whilst either at the Grandview Hotel or on the way home Morgan suggested he was near Tahaney’s home.

·The decision had been made not to go to the police and it would be open for the jury to infer that Jack Harvey was either part of or knew of that decision.

·The decision was made to deal with Sid Morgan.

·Given that Sid Morgan had said he was at 24 Spraypoint Drive it was unnecessary to return to 10 Montclair Street.

·The reason for going to Montclair Street was to get a gun.

·The jury could infer the existence of an agreement to kill Sid Morgan.

·That Jack Harvey was actively involved in the altercation outside 24 Spraypoint Drive.

·That after the shooting, Jack Harvey helped dispose of the gun.

·That after the shooting, Jack Harvey fled to Nagambie and Byron Bay.

·That after the shooting, Jack Harvey disposed of his clothes and helped hide the Hilux which had been used to go to 24 Spraypoint Drive.

1. In Harvey’s submissions, emphasis was placed on the paucity of evidence of agreement and the fact that Harvey was not connected to the business, was not involved in the threats either as a maker or receiver and he had never met Sid Morgan.  It was also submitted that Tahaney’s evidence about discussions at the Grandview was somewhat limited.

1. It was accepted that the principles involving no case submissions are set out Doney v The Queen (‘Doney’):[1]

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[2]

[1]Doney v The Queen (1990) 171 CLR 207.

[2]Doney v The Queen (1990) 171 CLR 207, Per incuriam Dean, Dawson, Toohey, Gaudron and McHugh JJ at 214-215.

1. Although I was taken to some cases,[3] which sought to explain Doney, I do not think cases involving a single judge can, for these purposes, extend beyond their own facts.[4]

   [3]R v Frank No 2 [2021] VSC 7 and Case Stated by Director of Public Prosecutions (No 2 of 1993 (1993) 70 A Crim R 323.

   [4]I regard Croucher J’s decision I R v Frank as plainly correct.

1. The decision of an appellate is different.  In particular what was said by King CJ, with whom Bollen J agreed and with whom Mohr J agreed in a separate judgement, in Case Stated by DPP (No 2 of 1993) is a good illustration of the effects of the principles set out in Doney:[5]

If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.[6]

[5]Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323.

[6]Ibid at 326.

1. The passage illustrates why the no case submission by Harvey cannot succeed.  I said in argument that I regard the case against Harvey as relatively weak but the issues, as they exist are, consistent with the authorities I have set out, to be decided by the jury.

1. I rejected the no case submission and said I would publish my reasons.  These are those reasons.