Director of Public Prosecutions v Edmunds (Ruling No 5)
[2022] VSC 839
•29 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0003
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BIANNCA EDMUNDS | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 August 2022 |
DATE OF RULING: | 29 August 2022 |
DATE OF REVISED REASONS: | 5 October 2023 |
CASE MAY BE CITED AS: | DPP v Edmunds (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 839 |
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CRIMINAL LAW – Murder – Trial ruling – Application for jury discharge – R v Boland [1974] VR 849 – Whether high degree of need to discharge – Coincidence reasoning introduced by the Crown during closing address to jury – Requirement to give notice not complied with – Defence application for discharge of jury – Whether direction by Judge to jury could remedy the issue – Whether defence could have run case differently had notice been given – Application for jury discharge granted –Evidence Act 2008 (Vic) s 98(1)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | Office of Public Prosecutions |
| For the Accused | Mr J Kelly SC with Mr L Richter | Victoria Legal Aid |
HIS HONOUR:
In this trial, Mr Kelly of senior counsel, who appears with Mr Richter, of counsel, on behalf of the accused, has applied for the jury to be discharged. The accused is charged with murder on the basis of complicity under s 323(1)(c) of the Crimes Act 1958. An earlier trial was conducted, which ended in the jury being discharged due to the jury being unable to reach a unanimous verdict. In this trial, Mr Kelly is partway through his final address to the jury, and I had anticipated that shortly I would be giving the jury legal directions.
However, Mr Kelly has drawn attention to the following passage in Mr Hutton’s final address to the jury for the prosecution, which reads as follows:[1]
And the phrase he says that the accused said is, "It wasn't meant to go like this, Glen wasn't meant to die", that's almost the exact same phrase that her mother and her sister says she said. It's almost the identical phrase that Loprese and Gonzalez says she said, that "he wasn't supposed to die, Glen wasn't supposed to die. He wasn't supposed to die", repeatedly.
So, despite Todd Bookham's criminal history and the letter he wrote to Biannca Edmunds - Biannca Cassidy - what you know is that he hasn't spoken to Kirinia or Ellen about their evidence, he doesn't know Loprese or Gonzalez from a bar of soap, yet each of them sing from the same hymn book. Each of them say the same phrase, comes out slightly differently, but you get my drift. But that means really that there's got to be a song master somewhere, from one person that's commented to those five witnesses is sitting in the back of the courtroom. How can it be that each of those people have fabricated a version of events that is the same? It can only be the truth. You couldn't possibly have those people making up that spontaneously and get it the same, simply randomly, because they hate her or because they want to get out of prison sooner, for instance.
[1]Transcript of proceedings, Director of Public Prosecutions v Biannca Edmunds (Supreme Court of Victoria, S ECR 2020 0003, Lasry J, 25 August 2022) 572 - 573, beginning at line 22.
Later, Mr Hutton said:[2]
Obviously, Loprese and Gonzalez are in the same prison, but they don't know Bookham and Bookham doesn't know them. How can it be that the two or three people who haven't spoken to each other come up with the same pieces of evidence unless they're telling the truth?
[2]Ibid 623.
In essence, the complaint made about those passages of Mr Hutton's address is that they rely on coincidence reasoning in circumstances where the requirements under section 98 of the Evidence Act2008 (Vic) (‘the Act’) have not been complied with.
Section 98 is in the following terms:
The coincidence rule
(1)Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to having any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless –
(a)the party seeking to adduce the evidence gave reasonable evidence in writing to each other party or the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will either, by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
In the course of argument about this, Mr Hutton conceded that the argument that he made to the jury means that the evidence which relies on the commonality of the phrase ‘Glen wasn't meant to die’ is coincidence evidence and, in my view, that is a concession well made.
The second question that arose is, bearing in mind the circumstances, how could this omission be remedied in the present case? It would be open to me to give the jury a direction, the essence of which would be to draw attention to Mr Hutton's argument, and then explain to the jury, as best I could, that despite what he had said, the jury were not legally permitted to rely on the commonality of the phrase in the evidence of those witnesses, and endeavour to explain why legal principle would prevent that.
I must say, my confidence about my ability to explain that in a way that people with non-legal training would understand is only moderate confidence, but I think it could be done. If that were the only consideration then, with time, a direction to the jury could probably be formulated that would achieve that purpose.
However, that is not the end of the issue because it seems to me reasonably obvious, and Mr Kelly has enhanced this to a degree, that if this were specifically known to those representing the accused at the commencement of the trial, there were measures they could have taken to undermine the evidence of those witnesses who gave evidence about this phrase, which so importantly binds the evidence of the witnesses together. For example, by referring to certain publicity where the phrase was mentioned in advance of, in particular, Gonzalez and Loprese making their statements.
That is all slightly vague as things presently stand but it does seem to me that the notice requirements in the Act are there for a reason and they are there to prevent the injustice. As a matter of disclosure, the accused is entitled to know the way in which the Crown case is going to be put and to give them the opportunity to prepare and meet it as best they can.
So, the difficulty that then arises is that a direction to the jury, as Mr Kelly has argued, will highlight the argument and any direction to the jury cannot ameliorate the prejudice or the potential prejudice which arises from the circumstances that we are in now, bearing in mind that the evidence has been closed for some days and we are at the stage of final addresses. It is a difficult problem to solve.
The test for the discharge of a jury appears in a number of authorities commencing with R v Boland.[3] A high degree of necessity is required. In that case, Adam J delivered the judgment of the Full Court, being Adam, Little and McInerney JJ. The relevant part of that judgment is in the following terms:[4]
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affects its fairness depends for its exercise upon the principle stated in Winsor v The Queen (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’.[5]
[3][1974] VR 849 (‘Boland’).
[4]Ibid, [866] per Adam, Little and McInerney JJ.
[5]Per Erle CJ, 394. See also Swinburne v David Syme [1909] VLR 550,562-3; Keddie v Foxall[1955] VLR 320, 321; R v Harrison [1957] VR 117, 119, 125 and 126; Watson v Hammence [1957] VR 319.
Indeed, that statement of principle was given in a case where the Court of Appeal determined that in fact, the judge was not in error to refuse to discharge the jury and in circumstances where in that case it would appear that an anonymous person, contacted a member of the jury, demanding that they find the accused guilty and in return would be paid $5,000.
The person was not identified. The judge gave significant directions which included a direction that it should not be assumed that either Victoria Police or the accused were responsible for that phone call and that ‘cranks’ in the community were around who might do such a thing if they got the opportunity. It is one example of where an application like this is made. It is unsurprising that the Court of Appeal concluded that Norris J was not in error in refusing the application.
The difference in this case is both in relation to the principle of disclosure and the importance of the accused understanding the way in which the case against them is to be put. Even putting that aside, my view that a direction might not be able to properly ameliorate the difficulty and cannot ameliorate the prejudice that I think potentially arises for the accused in the way she chooses to conduct the case and her counsel cross-examines the prosecution witnesses.
With very great regret, I have come to the conclusion that I have no choice but to discharge the jury as I think there is a high degree of necessity to do so.
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