Director of Public Prosecutions v DT (Ruling No 4)
[2024] VSC 347
•23 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0142
| DPP | Crown |
| v | |
| DT | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2024 |
DATE OF RULING: | 23 May 2024 |
CASE MAY BE CITED AS: | DPP v DT (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 347 |
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CRIMINAL LAW — Evidence — Child homicide — Application to exclude conversations between accused and various persons recorded on listening device — Whether evidence is incriminating conduct — Whether probative value of the evidence is outweighed by the danger of unfair prejudice — Evidence excluded — Evidence Act 2008 (Vic) ss 55, 56 & 137; Jury Directions Act 2015 (Vic) ss 3, 18, 19 & 61.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC, with Mr E Dober | The Director of Public Prosecutions |
| For the Accused | Mr R Nathwani SC, with Ms L Thies | Doogue + George Criminal Lawyers |
HER HONOUR:
Introduction
The accused is charged with child homicide. It is alleged he killed his 26‑day‑old son, Oscar.[1]
[1]This proceeding is subject to a suppression order regarding identification. Pseudonyms and initials have been used to prevent identification and minor redactions made.
The circumstances of the offending have been summarised in my earlier rulings. In brief compass, Oscar was the second child of the accused and MH. The prosecution case is that on the night of 27 November 2017, the accused violently shook and/or assaulted Oscar in the bedroom while MH was in the kitchen. The accused then carried Oscar into the kitchen and said to MH that he thought there was something wrong with Oscar. He told her to call an ambulance. In the early hours of the morning of 28 November, Oscar was rushed to the Royal Children’s Hospital. He died on 30 November 2017.
The prosecution case is that the accused deliberately injured Oscar after becoming momentarily intolerant and frustrated by his crying. The accused has no prior convictions and there is no history that suggests Oscar was at risk of harm, or that the accused had ever harmed either of the couples’ two children. There is evidence to the contrary; according to MH, the accused was a wonderful father to Christopher and Oscar, and assisted with Oscar’s care.
The prosecution seek to rely on evidence of what the accused said to various family and friends, and MH, almost 12 months after the alleged incident. The accused’s utterances were recorded by a lawfully installed listening device. The defence submit the recordings are inadmissible.
The alleged lies
While this ruling does not concern incriminating conduct, it is necessary to set out the prosecution case insofar as it concerns a number of alleged lies told by the accused.
The prosecution allege that the accused lied when he told the paramedics that Oscar ‘just went limp’. He repeated the lie to Dr Lobo several hours later at the Royal Children’s Hospital.
On 19 March 2018, the accused attended his regular medical clinic and spoke to a general practitioner, Dr Chifura. The accused told Dr Chifura that he had lost his three week old baby after accidentally dropping him on the floor. The prosecution will allege this was ‘partly true’: it was true insofar as the accused caused Oscar’s death, but untrue in that what caused Oscar’s injuries was not an accidental dropping onto the floor.
Months later, the accused repeated the ‘just went limp’ lie when he spoke with an undercover operative posing as a journalist on 25 October 2018.
The prosecution have filed a Notice of Incriminating Conduct (‘Notice’) concerning the ‘just went limp’ lie. The prosecution will seek to argue that the accused told (and repeated) the lie because of an awareness that the truth would incriminate him — the truth being that he had deliberately and violently harmed Oscar. In this way, the prosecution rely on the lie as an implied admission by the accused that he deliberately and unlawfully assaulted Oscar. The defence do not challenge the admissibility of the evidence, but will argue that it cannot be used as evidence of incriminating conduct in the way contended for by the prosecution. The argument will be heard once the evidence has concluded.
The defence admit the accused lied to the paramedics, Dr Lobo and the covert operative. Oscar did not just ‘go limp’ in the accused’s arms.
Dr Chifura’s evidence will not be challenged by the defence. On the contrary, the accused’s account to Dr Chifura will be relied upon by the defence. The defence will argue that the accused told Dr Chifura the truth.
The prosecution do not seek to rely on what the accused told Dr Chifura as evidence of incriminating conduct. The evidence was only briefly referred to in the Notice as follows:
On 19th March 2018, the accused admitted, during a consultation with his general practitioner Dr Shepherd Chifura, that he had indeed caused his son’s death (albeit accidentally by dropping him onto the floor).
At the time the Notice was drafted, the Defence Response stated:
It is the Defence position that the injuries suffered by the deceased could have been caused by events other than the Accused shaking/striking the deceased, or by persons other than the accused.
The Crown are not able to exclude that the deceased suffered from a short distance fall or that other persons were responsible for causing injury to the deceased either deliberately or accidentally.
On 27 March 2024, the first day of pretrial argument, the defence clarified their position. The accused admits he caused Oscar’s injuries and thus his death. However, the injuries were the result of accidentally dropping Oscar; they were not caused by a deliberate and unlawful act.
The prosecution have not sought to amend their Notice nor filed any additional Notice of Incriminating Conduct.
The elements
Child homicide is a species of manslaughter which, but for the age of the child, would be charged as manslaughter. Here, the prosecution allege child homicide by unlawful and dangerous act. The prosecution must prove the following four elements:
(i) The accused committed the act or acts that caused Oscar’s death;
(ii) The act(s) were committed consciously, voluntarily and deliberately;
(iii) The act(s) were unlawful; and
(iv) The act(s) were dangerous.
Only element 1 is admitted. The accused accepts that he, and no‑one else, is responsible for Oscar’s death.
Elements 2 and 3 are the real area of dispute. Given the factual matters in issue in this trial, elements 2 and 3 substantially overlap. If the jury are satisfied that the act that caused Oscar’s death was deliberate in the way contended for by the prosecution, it is difficult to see how the act could be anything other than an assault and therefore ‘unlawful’. However, if the prosecution cannot exclude the reasonable possibility that this was an accident, the accused must be acquitted.
Moving to element 4: if the jury are satisfied of elements 1, 2 and 3, it is very unlikely that the defence would suggest that violently assaulting and/or shaking a very young baby is not ‘dangerous’.
The facts in issue
It is necessary to identify with more precision what is, and what is not, in issue in the trial.
It is not in issue that Oscar was well, if grizzly, when MH handed him to the accused and left the bedroom. The accused was alone with Oscar for no more than a few minutes. It is not in issue that, whatever happened to Oscar, it happened in those few minutes. It is also not in issue that, during those minutes, the accused caused Oscar’s injuries such that he is responsible for causing his death. There is no suggestion that Oscar could have caused or contributed to his own injuries; given his very young age, he was non‑ambulatory and could not even roll over. There does, however, seem to be an issue as to whether all the injuries that were ultimately found on Oscar occurred during one incident, or whether ‘there was something more to it’.[2]
[2]Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, S ECR 2020 0142, Fox J, 22 May 2024) 82.
The key question for the jury in this trial is: what did the accused do to Oscar during those few minutes in the bedroom? The injuries Oscar sustained during those few minutes can only have been caused either accidentally or deliberately. Did the accused accidentally drop Oscar on the floor, as he told Dr Chifura; or did he violently assault Oscar, as alleged by the Crown?
The disputed evidence
The disputed evidence consists of what the accused said to various family members, family friends and MH on 28 October 2018 after he returned home from the police station, having been arrested and having made a ‘no comment’ record of interview.
The prosecution identified 11 parts of the conversation they rely upon. The 11 parts include the relevant statement(s) of the accused, and enough of the surrounding conversation to provide the necessary context. While each piece of evidence must be considered separately, they can be treated collectively for the purposes of much of this ruling. The evidence concerns two main issues: one, whether the accused said that he did not tell Dr Chifura he dropped Oscar. Two, whether the accused said that he did not drop Oscar.
Relevance of the evidence
The prosecution are seeking to use the post offence utterances of the accused against him in his trial. As set out in written submissions, the prosecution submit the evidence is relevant in two ways:
(a) It rebuts that the accused accidentally dropped Oscar. This is because the listening device recording shows him disavowing having dropped Oscar.
(b) It relates to the credibility of the accused’s account, given to both Dr Chifura and his defence in this trial, that he accidentally dropped Oscar; and also affects the jury’s assessment of any representation he made about Oscar.
The prosecution submit that during the recorded conversation, the accused says the following two things:
(v) One, the accused says he did not tell Dr Chifura that he dropped Oscar.
(vi) Two, the accused says he did not drop Oscar.
The prosecution rely on the drawing of inferences, particularly insofar as (ii) is concerned.
Consideration
Meaning of ‘defence’ in the Jury Directions Act 2015 (Vic) (‘JDA’)
‘Defence’ is defined in s 3 of the JDA to mean:
Defence includes an exception, exemption, proviso, excuse or qualification to any offence, whether or not it accompanies any description of the offence in an enactment.
The definition is broad and non‑exhaustive. In my view, it is not limited to legal defences that must be disproved. It extends to a case such as this, where the accused has said that he caused Oscar’s death by accidentally dropping him. That is not merely a theory, or a possible alternative explanation that, arguably, cannot be excluded by the prosecution. It was said by the accused to Dr Chifura, and will be supported by the expert evidence of Dr Duflou (and, likely, the prosecution expert Dr Tibballs). It is the defence in the trial.
Section 61(b) of the JDA does not compel a contrary conclusion, and does not limit the meaning of ‘defence’ to defences that must be disproved beyond reasonable doubt. The purpose of s 61 is to make clear the only matters that must be proved beyond reasonable doubt.[3] Those matters are (a) the elements of an offence (or an alternative offence), and (b) ‘the absence of any relevant defence’. Certain defences such as self‑defence must, as a matter of law, be ‘disproved’ by the prosecution. If self‑defence is raised by an accused, it would be a ‘relevant defence’ within the meaning of s 61(b) and a jury would need to be directed that the prosecution must prove, beyond reasonable doubt, that the accused was not acting in self‑defence.[4] However, in my view, s 61(b) does not operate to restrict the meaning of ‘defence’ in s 3 to the limited number of defences which must be formally disproved by the Crown. Such an interpretation would be contrary to the plain and broad meaning of the definition found in s 3 of the JDA.
[3]Jury Directions Act 2015 (Vic) s 61. See also Director of Public Prosecutions v Benjamin Order (a pseudonym) [2024] HCA 15, [14]–[19].
[4]Although, arguably, s 61(b) has no real work to do in such a case, as the prosecution must prove, as an element, that the act was done with lawful justification or excuse. They are required to disprove self‑defence in proof of the element.
The recorded conversation
Much of what is said during the conversation is said by persons other than the accused. If it was relied upon for its truth, it would be hearsay. Some of it would be second‑hand hearsay and beyond the reach of the exceptions found in Part 3.2 of the Evidence Act 2008 (Vic) (‘Evidence Act’). For example, a recording of what Mrs T says the accused said to Dr Chifura is not first‑hand hearsay. The prosecution do not seek to rely on what is said by the other persons for its truth. Rather, it provides context and makes the evidence of what the accused said intelligible.
In my view, the verb ‘dropped’ as it was being used in the conversation means ‘accidentally dropped’. Theoretically, one can deliberately drop an item — for example, a player could deliberately drop the ball — but it is clear that is not what is being discussed. The prosecution drew a distinction between ‘dropping in a free fall way by way of accident, and dropping in the nature of deliberately flinging or deliberately throwing the child to the floor’. The latter does not come within the definition of ‘dropping’, and is certainly not how the word ‘dropping’ is commonly used and understood.
Taking the prosecution case at its highest and drawing all available inferences in a way that is most favourable to the prosecution, the conversation is capable of establishing the following:
(a) The accused says he did not tell Dr Chifura that he dropped Oscar; and
(b) During at least part of the conversation, the accused denied dropping Oscar.
I will deal with the admissibility of each of these in turn.
One: the accused says he did not tell Dr Chifura that he dropped Oscar.
There is no issue, in this trial, as to whether the accused did, or did not, tell Dr Chifura that he accidentally dropped Oscar on the floor. It is admitted.
The evidence would offend the credibility rule if the material was relied on solely as to credit. Evidence that goes solely to the credibility of the accused is inadmissible under s 102 of the Evidence Act. To be relevant, the evidence if accepted must be capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. Here, the prosecution allege it is relevant as it goes to rebutting the defence that the accused dropped Oscar. This brings in considerations of credibility, but the evidence is not relied on solely as to credit.
It is appropriate to pose the question — how does the accused saying ‘I did not say to Dr Chifura that I dropped Oscar’ rebut the defence of accident? The jury would have to reason that because the accused denies saying to Dr Chifura that he accidentally dropped Oscar, it is therefore not true, or less likely to be true, or at least casts doubt on whether what he said to Dr Chifura is true. Therefore, the jury may reason it is unlikely, or less likely, he dropped Oscar. In my view, if used in any of these ways, the conduct amounts to an implied admission by the accused that, despite what he said to Dr Chifura, he did not really drop Oscar. That is, it is an implied admission which negates the defence of accident, and therefore evidence of incriminating conduct within the meaning of s 18 of the JDA.
The required notice has not been filed by the prosecution (and it is hard to see how the prosecution could clear the hurdle set by s 19(3)(a) if they attempted to file a notice at this late stage). The evidence is inadmissible.
If the above analysis is incorrect, and if I am wrong about the definition of ‘defence’, I will go on to consider whether the evidence should be excluded pursuant to s 137 of the Evidence Act.
Nothing said by the accused during the recorded conversation is relied on as an admission or an implied admission. The prosecution rely on the evidence to rebut the defence of accident, but not in a way that involves incriminating conduct reasoning. The prosecution argue the evidence is capable of affecting the jury’s assessment of the accused’s credit, but it can only do that if it casts doubt on the truth of his account to Dr Chifura. However, if the evidence causes a jury to doubt whether the accused told Dr Chifura the truth (or causes the jury to find that he lied to Dr Chifura), they must somehow only use that when assessing his credit. The jury cannot convert the lie to Dr Chifura into evidence of guilt. This reduces the probative value of the evidence. It also increases the danger of unfair prejudice.
Additionally, as the prosecution told the jury in their opening address, the medical evidence proves the charge. It is the only evidence that can prove the charge beyond reasonable doubt. The ‘just went limp’ lie may (subject to argument) be able to be used as an implied admission by the accused that he deliberately assaulted Oscar, and may contribute to the circumstantial case. However, nothing in the recorded conversation can be used in that way.
Turning to the question of prejudice, the evidence gives rise to a number of issues.
The conversation is triggered by the accused having attended the police station and given a ‘no comment’ record of interview. At times, the accused is repeating what he told police. For example, he says the police asked him whether he told Dr Chifura that he dropped Oscar, and he told them ‘nah, no comment’. The police asked him why he went to see Dr Chifura, and he answered ‘no comment’. He is repeating what he told police. It is difficult to see how the evidence can be led without revealing that the accused was spoken to by police and exercised his right to silence.
The accused’s mother plays a prominent role in denying what the accused said to Dr Chifura. Mrs T was present when the accused consulted Dr Chifura. She has not made a statement and is not a witness. In the recording, Mrs T can be heard strongly denying the accused told Dr Chifura he dropped Oscar. The accused does not contradict or correct her, although at times he does not really agree with her. At another point, Mrs T says the accused told the doctor, ‘the baby was in your arms and passed away’. The jury cannot use what Mrs T said against the accused, and there is some risk the jury may misuse the evidence in this way. However, in my view, any risk can be cured by giving the jury the necessary judicial directions, warning the jury against any prejudicial misuse of the material.
During much of the conversation, the accused is repeating what he was told by police, or repeating what other participants are saying. Some of his answers are non‑committal or unclear. Others contradict the prosecution position: for example, MH says, ‘well, you wouldn’t go in and say to the doctor if you’ve dropped him on his head’, and DT answers, ‘oh, I don’t know’.
In my view, the danger of unfair prejudice arises in two key ways:
(a) There is a danger the evidence will reveal that the accused was questioned by police and gave ‘no comment’ answers, which undermines his right to silence.
(b) There is a real danger the evidence will be misused by the jury as evidence of incriminating conduct and treated as an implied admission by the accused that he assaulted Oscar.
Dealing with the first potential danger. ‘No comment’ answers are not admissible for the purpose of inferring guilt.[5] The evidence is not relied on here for that purpose. The prosecution will not be inviting the jury to draw any adverse inference from what the accused said (or did not say) to police, or what answers he did (or did not) give. It may be the recorded material could be limited to those parts which do not reveal the accused answered police questions with ‘no comment’. It would still be obvious that the accused had spoken to police, but that occurred at various points throughout the investigation. The accused was not charged until April 2020. A jury could be directed that they must not speculate about those conversations, or draw any inferences adverse to the accused. Such a direction may be capable of curing any prejudice.
[5]Evidence Act2008 (Vic) s 89.
The second danger is more troubling. The prosecution argue that the evidence is simply that the accused says he did not tell the doctor he dropped Oscar, and that cannot be turned into an admission that he assaulted Oscar. However, the evidence is not so simple. If all the evidence proves is that in October 2018, the accused denied telling Dr Chifura he dropped Oscar, it is of no real probative value. The value of the evidence to the prosecution must be that it damages the accused’s credibility and rebuts the defence of accident. The only way it can achieve this is if it casts doubt on the veracity of what the accused told Dr Chifura. If the jury find the accused did not tell the truth to Dr Chifura, they will likely go on to reason that he told the lie because he is guilty of assaulting Oscar. If a jury engage in this reasoning, then logically they are treating the evidence as an implied admission by the accused that he deliberately harmed Oscar. There is no possibility that Oscar caused his own injuries, and no suggestion anyone else did. The only person who caused the injuries is the accused. He did so either deliberately or accidentally. Once a jury reaches this point, it is almost inescapable that they would go on to reason that the accused lied to Dr Chifura because he knew he had deliberately harmed Oscar. This will convert what is currently a ‘credit’ lie into incriminating conduct.
In my view, there is a real risk the jury will misuse the evidence as an implied admission by the accused that he assaulted Oscar, despite any judicial direction to the contrary. Given the narrow issues in this trial, such reasoning is almost impossible to avoid. A jury would have to be told that if they doubt the truth of what the accused said to Dr Chifura, they must not use that finding to conclude that the accused assaulted Oscar. In my view, such a direction would be very difficult to understand, follow and apply. The unfair prejudice is that the jury will misuse the evidence as evidence of incriminating conduct, and that prejudice is not capable of being ameliorated by judicial direction.
The evidence is inadmissible pursuant to s 137 of the Evidence Act.
Two: the accused said he did not drop Oscar.
The accused does not expressly admit that he did not drop Oscar; that must be inferred from the other things he says. He is impliedly admitting that he did not drop Oscar. In my view, this cannot be said to merely concern the credibility of the accused’s assertion that this was an accident. If the accused did not drop Oscar, then whatever he did was not an accident.
In R v Ball, a brother and sister were charged with incest. Evidence was tendered to show they had been living together and sharing a bed. Evidence was also tendered of previous acts to show the relationship between them. Lord Loreburn L.C. stated:
The object was to establish that they had a guilty passion towards each other, and that therefore the proper inference from their occupying the same bedroom and the same bed was an inference of guilt or—which is the same thing in another way—that the defence of innocent living together as brother and sister ought to fail.[6]
[6][1911] A.C. 47.
Here, in my view, the real object of the evidence is to establish that the accused assaulted Oscar or — which is the same thing in another way — the defence of accident ought to fail.
In my view, when properly analysed, the prosecution are relying on the evidence as an implied admission by the accused which negates the defence of accident. It is incriminating conduct evidence within the meaning of s 18 of the JDA and the notice requirements have not been complied with. The evidence is inadmissible.
Again, if the above analysis is incorrect, or if I am wrong about the meaning of ‘defence’ found in s 3 of the JDA, I will go on to consider whether the evidence should be excluded pursuant to s 137 of the Evidence Act.
A number of the 11 items of evidence are not capable of sustaining an inference that the accused says he did not drop Oscar. Items 1–4 and 10 are in this category.
It is difficult to see how the inference is safely available when considering items 7 and 8. The jury would have to reason that by saying, ‘I did not say that to Dr Chifura’, the accused is impliedly saying, ‘I did not drop Oscar’.
Item 9 does sustain the inference contended for by the prosecution. The accused tells MH that, ‘Apparently I told the doctor that I dropped him’. MH responds, ‘That’s bullshit’ and the accused says, ‘Yeah…’.
In item 11, the accused says that if he had told Dr Chifura that he dropped Oscar on his head, the doctor would have notified the police or child protection. However moments later, MH says, ‘Well you wouldn’t go in and say to the doctor if you’ve dropped him on his head’. The accused responds, ‘Oh, I don’t know’. It is difficult to see how a jury could reasonably infer that the accused was denying he dropped Oscar, rather than denying he told the doctor he dropped Oscar.
If the jury conclude that the accused said he did not drop Oscar, the probative value of the evidence is high. However, if the evidence can only be used to rebut the defence of accident, but must not be used to positively infer that the accused deliberately harmed Oscar, its probative value is lower.
Here, the real danger of unfair prejudice is that if the jury conclude the accused is saying, in the recorded conversation, that he did not drop Oscar, and they find that to be true, there is a real risk the jury will go on and use the evidence to conclude the accused assaulted Oscar. In my view, this cannot be cured by any judicial direction. A direction that tells a jury that if they find the accused is admitting he did not drop Oscar, they must not use that to conclude he deliberately harmed Oscar, in the context of this trial, is incapable of being sensibly applied. At risk of repetition: the only person who caused the injuries to Oscar is the accused. He did so either deliberately or accidentally. If the jury accept that the accused is saying he did not drop Oscar, it is inescapable they will go on to use the denial as an implied admission by the accused that he deliberately harmed Oscar.
The evidence is excluded pursuant to s 137 of the Evidence Act.
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