Director of Public Prosecutions v Henderson [Ruling No 1]
[2015] VSC 435
•24 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 190
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| JOEL HENDERSON | Accused |
---
JUDGE: | BONGIORNO JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 July 2015 |
DATE OF RULING: | 24 July 2015 |
CASE MAY BE CITED AS: | DPP v Henderson [Ruling No 1] |
MEDIUM NEUTRAL CITATION: | [2015] VSC 435 |
---
CRIMINAL LAW – Evidence – Post-offence conduct – Evidence of identification – Relevance – Statutory criterion – No point of principle – Jury Directions Act 2015, s 20(1)(b) – Evidence Act 2008, s 137
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Dane QC with Ms M E O’Brien | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr G Georgiou SC with Ms C Boston | Victoria Legal Aid |
HIS HONOUR:
The Crown seeks to lead evidence that, after returning to Ballarat following the death of the deceased at Scarsdale, the accused showered and then shaved off his beard, thus significantly altering his physical appearance. It argues that this evidence, which was to be given by Lisa Trezise, was relevant and admissible. It maintained that that evidence was reasonably capable, in the context of the evidence as a whole, of being viewed by the jury as evidence of incriminating conduct. It seeks a ruling to that effect.
The Crown case is that the death of the deceased was effected pursuant to a joint criminal enterprise entered into by the deceased and Darren Wilson and that both contributed to the deceased’s death by assaulting him with an axe, the accused first, followed by Wilson. The accused denies any joint enterprise and also that he intended to kill or cause really serious injury to the deceased.
The Crown argued that, although there were people present at the house at which the deceased died who knew the accused, including Ms Trezise, there were also people at the house, including at least some of the witnesses in this case who did not know him. It may well have appeared to the accused, after leaving the scene, that a radical change in his appearance might, at least, cause some potential witnesses to have doubts as to whether he was the person they saw.
The Crown also contended that, although there is now no identification issue in this case concerning the accused, his state of mind at the time he performed the acts sought to be relied upon may well have been such that he performed those acts in the belief, or in, at least, the hope that he might thereby escape detection.
The evidence proposed to be given by Ms Trezise would include her having taken a photograph on her mobile phone of the accused, naked, prior to his having a shower at her home upon his return from Scarsdale. The photograph, taken at the accused’s request, shows a young man heavily tattooed, particularly on the arms, with long unkempt hair and a beard, wearing heavy metal rings on two fingers of his left hand. Blood can be clearly observed on his forehead.
Another photograph of the accused, taken by police later on the same day after his arrest, shows a clean shaven man with combed hair wearing a shirt so that no tattoos are visible. The difference in the photographs is striking. The Crown also seeks to tender this photograph to emphasise the difference in the accused’s appearance brought about by having shaved and having obviously combed his hair.
Defence counsel opposes the introduction of this evidence on the grounds that it does not meet the criterion required by s 20(1)(b) of the Jury Directions Act 2015 and, in any event, its exclusion is required by s 137 of the Evidence Act 2008, as its probative value is outweighed by the danger of unfair prejudice to the accused.
Having regard to the conclusion I have reached that the evidence should be excluded by the operation of s 137 of the Evidence Act 2008, there is no need to consider any further the operation of the provisions of the Jury Directions Act 2015 concerning alleged incriminating conduct.
The issues in this case all revolve around the alleged participation of the accused in a joint criminal enterprise with Darren Wilson to kill or really seriously injure the deceased. Whilst this does not of itself render the evidence sought to be led irrelevant, it does severely limit its utility. Assuming it is reasonably capable of being viewed by the jury as evidence of incriminating conduct so as to entitle the Crown to a determination in its favour under s 20(1)(b) of the Jury Directions Act 2015, its probative value in the context of this case is limited.[1] There is no question of identification of the accused. He concedes he was present at or near the scene of the crime at all relevant times and does not dispute that he assaulted the deceased, although not pursuant to a joint criminal enterprise with Wilson.
[1]DPP v Scriven [Ruling No 4] [2015] VSC 220 (Maxwell P); DPP v Zhuang [Ruling] [2014] VSC 276 (Kaye J).
On the other hand, the danger of unfair prejudice to the accused is significant. In particular, there is a real danger of the jury unfairly taking a very adverse view of the accused when it compares the photograph taken by Ms Tresize with that taken by the police investigators and, perhaps particularly, with their observation of the accused as he now appears in the dock: clean shaven, short-haired and wearing a suit and tie. This danger outweighs the limited probative value of the evidence sought to be tendered. Accordingly, it must be rejected.
- - - - -
0
2
0