Director of Public Prosecutions v Hicks (Ruling No 3)
[2014] VSC 106
•14 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BENDIGO
CRIMINAL DIVISION
No. 166 of 2013
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY HICKS |
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JUDGE: | KAYE J | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 13, 14 March 2014 | |
DATE OF RULING: | 14 March 2014 | |
CASE MAY BE CITED AS: | DPP v Hicks (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 106 | |
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CRIMINAL LAW – Evidence – Murder – Aggravated burglary – Admissibility of boot worn by accused – Prosecution seeking to match imprint at scene with accused’s boots – Prosecution in opening expressly disavowing any such connection – Irreversible forensic decisions by accused’s counsel based on prosecution position – Unfair prejudice to accused – Evidence excluded.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M Williams SC and Mr G Hayward | Solicitor for Public Prosecutions |
| For the Accused | Mr D Hallowes | Robert Stary & Co |
HIS HONOUR:
In this matter the accused man, Harley Hicks, is charged with the murder of Zayden Veal‑Whitting, who was then ten months’ old, on 15 June 2012 at 199 Eaglehawk Road, Long Gully. It is estimated that the murder of Zayden took place between about 2.00 a.m. and 4.00 a.m. on that morning.
The jury in the trial were empanelled on Monday and Tuesday, 3 and 4 March 2014. By Tuesday 11 March, 16 prosecution witnesses had been called. The trial was unable to proceed on Wednesday 12 March because the accused man was ill. Yesterday, 13 March, an issue was raised concerning the admissibility of a pair of motorcycle boots which the accused man had been observed wearing by the witness, Martina Lawn, between 15 June and 18 June 2012.
The accused man left those boots at the premises of Brooke and Peter Tucker at Gisborne when he decamped from those premises on 18 June. In a statement made to the police, the accused's girlfriend, Martina Lawn, stated that the boots were much too big for the accused, that she had not seen them before the evening of 14 June, and she first saw the accused man wearing them on 15 June.
On 13 March, this year, the prosecution obtained a statement from a witness, Collin Taylor, who in June 2012 resided at 1 Dillon Street. Mr Taylor in that statement said that on the night of 14, 15 June 2012 a pair of black motorcycle boots had been stolen from his premises.
The prosecution now wish to have the boots, which the accused man left at the premises of Mr and Mrs Tucker in Gisborne, admitted in evidence in the trial so that the soles of those boots can be compared with a footprint on a couch which was left at the premises at 199 Eaglehawk Road, and which is depicted in photograph 290 in Exhibit C.
On the night in question, that couch had been pushed by the occupants of 199 Eaglehawk Road against the rear fence of the premises to prevent their dog from escaping. The prosecution also intend, if the boots are admitted into evidence, to have them submitted to an expert so that the footprint, as depicted on the photograph, can be compared with the soles of the boots.
The mark on the couch, as depicted in photograph 290, has already been subject to some evidence. Mr Tisell, who is the stepfather of Zayden, gave evidence that the mark could have been made by a friend or by himself when, during the previous week in the course of a party, they had climbed over items in the backyard in high spirits. That evidence of Mr Tisell was cross-examined by Mr Hallowes in a passage to which I shall later refer.
Mr Hallowes, who appears on behalf of the accused, has objected to the admissibility of the evidence on the following bases. First, he submitted that the evidence is sought to be adduced, for the purposes of comparison with the mark shown on the couch, very late in the trial at a stage in which the evidence in the trial is well advanced.
Secondly, he submitted that Ms Williams SC, who appears with Mr Hayward for the prosecution, expressly opened the case on the basis that no link could be drawn between the mark on the couch, as depicted in the photograph, and the accused man.
Thirdly, Mr Hallowes submitted that thus the prosecution is now seeking to change its position in relation to that aspect of the case for the first time and he submitted that the fact it is doing so is not the result of any new or radical development in the case. He has pointed out that the prosecution always knew that the accused man was wearing the motorcycle boots between 15 June and 18 June. The prosecution always knew of the mark on the couch. The prosecution had access to the boots and the prosecution knew that Ms Lawn, in her statement, had stated that she understood that Hicks had stolen the boots on the evening of 14 June to 15 June.
Fourthly, Mr Hallowes submitted that if the prosecution were permitted to have the boots tendered in evidence to have them compared with photograph 290 in Exhibit C, that would result in irreversible prejudice to the accused. In particular, he submitted that the defence might well have approached the case differently if the evidence had been sought to be admitted for that purpose from the outset, and if that had been foreshadowed by the prosecution before trial and in Ms Williams' opening. In particular, Mr Hallowes submitted that he would have cross-examined the witness Mathew Tisell differently in relation to the mark on the couch.
In reply, Ms Williams has accepted, properly, that the prosecution is raising the issue relatively late. However, she has submitted that the prosecution, while it did have the matters, or access to the information to which Mr Hallowes has observed, only appreciated the potential link when the police were able to obtain a statement from Mr Taylor on 13 March 2014. She submitted that the approach which the prosecution now seeks to take in relation to a comparison between the boots and the mark on the couch, does not involve any change in the case made by the prosecution, the evidence is of potentially strong probative value, and that the accused has not made out any relevant prejudice, should the evidence be permitted to be tendered for the purpose for which the prosecution now strives.
It is clear, from what I have already stated, that the trial in this case is quite well advanced and the prosecution is now raising this issue relatively late. Further, and without intending to be critical of the prosecution, and avoiding the wisdom of hindsight, I think it is sufficiently clear that the possibility of a link between the boots worn by the accused between 15 June and 18 June and the mark on the couch was always foreseeable. As I have already indicated, Ms Lawn in her statement, expressly said that she believed that the boots, which she observed the accused man wearing, were stolen by him on the evening in question.
The accused man lost his shoes when attempting to burgle the premises at 23 Duncan Street, which was close to the premises at 1 Dillon Street at which Mr Taylor was then living. Mr Hallowes expressly, in cross-examination of the informant, Detective Senior Constable Harwood, raised the issue at committal in relation to any potential link between the mark on the couch and the person who burgled the premises at 199 Eaglehawk Road.
It is true, and I certainly accept Ms Williams and Detective Harwood when they have said, that the statement made by Mr Taylor might have prompted them for the first time to consider the possibility of such a link. However, in my view the prosecution did have in its hands sufficient evidence for such a link to have been reasonably foreseeable.
More importantly, the case until this stage has been conducted by the prosecution on the basis that they would not seek to make any link between the boots, worn by the accused between 15 and 18 June 2012, and the mark on the couch. In opening the case to the jury, Ms Williams said that the police could not determine any characteristics of the footprint, and thus she, in effect, disavowed setting out to prove any link between the footprint on the couch and the boots. After all, the purpose of an opening is precisely to indicate to the jury what the prosecution, do and do not, intend to prove.
Thus, so far the trial has been conducted on the basis that the prosecution would not be pointing to any link between the motorbike boots, left by the accused man at Gisborne, and the mark on the couch. In my view, Mr Hallowes was fully entitled to conduct his case on the basis of the case stated by the prosecution. I do not accept the submission by Ms Williams that there has been no change by the prosecution in its case. In a sense, there has been no change in the case, that is, that it was the accused man who burgled the premises at 199 Eaglehawk Road and murdered Zayden. However, on this aspect of the case, the prosecution is now seeking to change its position in an important respect.
The critical issue for me to determine is whether such a change in position now, if I were to permit it, would involve undue and irreversible prejudice to the accused.
I examined the boots in the course of argument. To the untrained eye there are some similarities between the sole of the boots and the footprint depicted in photograph 290.
That in itself creates, in my view, a real problem. At the committal proceedings, in cross examination, Detective Senior Constable Harwood said that crime scene investigators told him after they had examined the scene that they could not conduct tests on the mark on the couch because there was no significant pattern or size that they could obtain off the mark.
In evidence on a voir dire before me today, Detective Senior Constable Harwood in effect repeated that evidence. The crime scene unit investigators were present at the premises and carried out their investigations there between 15 June and 17 June 2012. On 17 June, they gave Detective Senior Constable Harwood a briefing in relation to what they had, or had not, found at the premises. The evidence that Detective Senior Constable Harwood gave at the committal is very similar to the notes which he read to me today in relation to the observations made by the crime scene investigators concerning the mark on the couch.
In light of that evidence, in my view it would be unsafe to admit the boots in evidence, so that the jury could conduct its own comparison between the soles of the boots and the footprint depicted in photograph 290 of Exhibit C.
I accept that quite commonly objects, and indeed photographs, are put before a jury for the purpose of them making their own commonsense comparison and, in a sense, carrying out their own identification; but in this case, the evidence given by Detective Senior Constable Harwood, and in particular the view taken by the crime scene investigators, is such that it would be unsafe to permit a jury to undertake that course, without the assistance of appropriate expert evidence.
It is obvious, but it needs to be borne steadily in mind, that the accused man is not only on trial for the most serious offence in our calendar of criminal offences, namely murder, but for a most serious instance of such a crime, that is, the brutal killing of an innocent ten-month-old infant by repeated acts of vicious violence. The case, to say the least, is a most serious case. It would, in my view, be wrong in such a case to invite a jury to undertake its own visual comparison, where it seems crime scene investigators themselves had concerns about the lack of quality of the print left on the couch.
In addition, of course, a photograph - if that were all the jury had to compare with the soles of the shoes - would not reveal the size or width of the sole of the boots in question, and thus could not have permitted any sensible comparison. All that the jury on such a comparison could undertake would be a comparison of the pattern of the sole in the photograph with the pattern of the sole of the boots worn by the accused man.
That issue might be able to be overcome by presenting to the jury what I understand now was a cut-out of the print, although the presentation of such a cut-out does involve some problems of itself. But, in addition, there is no evidence whether the pattern on the sole of the boots, as depicted in the photograph, is exclusive to or distinctive of the type of boots worn by the accused, whether it is common to other types of boots, whether motorbike boots or otherwise.
Taking all those matters into account, I would consider it would be unsafe to permit a jury simply to go off on its own and undertake its own comparison. So, if I were to admit the boots, it would only be in circumstances where, first, a suitable expert had viewed the boots and ventured an opinion in relation to them.
If an expert engaged by the prosecution gave a report favourable to the prosecution, the defence would then need time to obtain its own expert and would need time to have that expert properly examine the boots and the cut-out of the print on the couch. I would also expect the defence in such a circumstance would wish to undertake a Basha inquiry in relation to the prosecution expert.
This case has its own intrinsic difficulties. The accused man is now held in slightly difficult circumstances at the Metropolitan Remand Centre and he is brought to court each day from that centre, a journey of some hours. His mental health has been fragile, and that was the cause of the trial not being able to proceed on 12 March 2014. I am concerned that any untoward delay in the trial might adversely affect the accused in that regard, might affect his fitness to continue his trial and might interrupt and delay the trial.
Those considerations are of some moment, but alone would not preclude the admission of the evidence under s 135(c) or 173 of the Evidence Act 2008, but they do involve potential prejudice to the accused. However, there are two other factors, which I consider do involve considerable, or would involve considerable, prejudice to the accused, if I was to admit the evidence.
The first matter is that the prosecution case to the jury is based on three premises: first, that there was one burglar who entered the premises at 199 Eaglehawk Road; secondly, that that burglar was the person who murdered Zayden; and, thirdly, that the accused man was that burglar. The defence in this case so far has focused its attention on the third proposition and, to a lesser extent on the second proposition; it has not put in issue the first proposition.
If the prosecution had opened or foreshadowed that it would attempt to match the footprint in photograph 290 with the boots worn by the accused, counsel might well have also put the first proposition in issue, and might also have approached the second proposition differently. I say that in these circumstances Mr Hallowes might have adopted a different course; it is not possible to state the position higher, but in my view there is a realistic possibility that, if the prosecution at the commencement of the trial had sought to adopt the position in respect of the boots, which they now wish to take, the defence might have conducted itself differently in at least one significant respect.
Mr Hallowes’ opening, in my view, contained the clear statement by him in two aspects which I think would make it most unrealistic for him now to change course and try to put the first proposition in issue.
I consider Mr Hallowes could have put that proposition in issue, albeit it would have required a degree of forensic skill and tact to do so if he had known of the course that the prosecution now wish to adopt. However, given what he has stated in his opening, I consider that, if he were to seek to put that proposition in issue now, it would substantially discredit and undermine the defence.
The second matter of prejudice, which concerns me, arises from the evidence of Mr Mathew Tisell. As I stated Mr Tisell, in his evidence-in-chief, said that the footprint in photograph 290 could have been left by a friend and himself when, in the course of some high spirits, they had run over the tops of cars and other items in the backyard during a party in the previous week.
Based on Ms Williams' opening and on the evidence given by the informant at the committal, Mr Hallowes cross-examined Mr Tisell to in fact undermine that evidence. He did so safe in the understanding that the prosecution would not be seeking to form any link between the footprint on the couch and the boots worn by his client.
Thus he sought to suggest to Mr Tisell and indeed, it seems to me, Mr Tisell may well have acceded to the proposition, that he might not have jumped on the couch. Thus Mr Hallowes left open the proposition that whoever did enter the premises did so via the backyard, over the back fence and onto the couch. Clearly if Mr Hallowes knew then the approach the prosecution now wish to take he would not have adopted that course, but, rather, he would have left Mr Tisell's evidence, in that critical regard, alone.
In my view, the two matters, that I have just related, are matters of real prejudice to the accused, if the prosecution were to change its position now in relation to the boots. The question then is does the probative value of the evidence, or potential probative of the evidence, outweigh that prejudice?
That issue is difficult to decide. Much would depend on the opinion of an expert if one were gained. Without the benefit of any such expert evidence and if I had, despite what I have already said, admitted the evidence before the jury, it would, I think, have some limited weight.
First, of course, the photograph does not show the size or dimensions of the boot in question. Secondly, as I have already pointed out, there is no evidence as to whether the imprint on the couch was distinctive of, or exclusive to, the motor bike boots of the type worn by the accused between 15 and 18 June 2012.
Given those limitations I would need to give the jury a strong caution in relation to drawing any comparison between the boots and the photograph and that caution would, in my view, have the effect of limiting the potential probative value of the evidence.
Taking those matters into account, as I have stated, I consider that if the evidence were now admitted for the purpose of establishing a link between the boots worn by the accused and the imprint on the couch that that would involve irreparable and significant prejudice to the accused.
In my view that prejudice clearly outweighs any potential probative value of the evidence as it now stands.
It is, in my view, a pity that this has come to pass. I am loathe, in a case like this, to shut out evidence of this type and I certainly do not wish to be critical but the fact is little new has emerged. The police had the boots in their possession, they had a cut out of the print, they had Martina Lawn's evidence in relation to her understanding that the boots had been stolen that night, and the matter was raised by Mr Hallowes at the committal. In addition, we had two weeks of pre-trial argument for the Crown to consider issues such as this. It is not my role to punish or criticise the prosecution, but in weighing up the fairness of excluding it, it is a factor that must be taken into account.
Fundamentally, my role is to ensure that the accused man receives a fair trial. In my view, as I have stated, there would be strong prejudice to the accused in the conduct of the trial if I were to admit the evidence. No direction given by me could allay that prejudice before the jury. I am of the view that that prejudice does outweigh any probative value of the evidence and so I have come to the inevitable conclusion that I must exclude it under s 137 of the Evidence Act 2008.
I shall thus exclude the admissibility of the boots in evidence and exclude the admissibility of any evidence seeking to link the footprint depicted in photograph 290 of Exhibit C with the boots worn by the accused man between 15 and 18 June 2012.
In saying that, of course, as discussed with counsel in the course of argument, that ruling does not preclude the prosecution tendering a photograph of the boots, excluding the soles of them, to enable Mr Taylor to identify the boots which were taken from the Tuckers’ house with the boots stolen from 1 Dillon Street.
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