Director of Public Prosecutions v Hills (Ruling No 10)

[2010] VSC 598

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1491 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAREN HILLS
N.C.
BRODIE COOPER
R.A.C.

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2010
DATE OF RULING:	7 December 2010
CASE MAY BE CITED AS:	DPP v Hills & Ors (Ruling No 10)
MEDIUM NEUTRAL CITATION:	[2010] VSC 598

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CRIMINAL LAW – Joint trial – Objection to final address of prosecutor made by counsel for accused who not affected by address – Counsel for accused affected by address opposing objection – Objection overruled.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr G. Horgan SC and Ms E. Ruddle	Office of Public Prosecutions
For the Accused Karen Hills	Ms C. Randazzo SC and Mr J. Desmond	Robert Stary Lawyers Pty Ltd
For the Accused NC	Mr S. Bayles	Robert Stary Lawyers Pty Ltd
For the Accused Cooper	Mr W.E. Stuart	James Dousley & Associates
For the Accused RAC	Mr I. Polak	Dowling McGregor

HIS HONOUR:

1. Mr Stuart, yesterday, 6 December, raised a matter relating to an aspect of the address of Mr Horgan, in which Mr Horgan made submissions concerning what he said was an inconsistent approach of counsel on behalf of Karen Hills by, on the one hand, attacking in considerable detail the search and soil evidence, and on the other hand, putting forward Anthony Carnevale as an explanation as to why the pair of Nike runners might have mud on them. 

1. The matters raised by Mr Stuart relate essentially and exclusively to the case between the prosecution and Karen Hills.  They do not affect the case of Brodie Cooper, for whom Mr Stuart acts, or any of the other accused in the case.  Mr Stuart had raised them with counsel for Karen Hills last week, but he did not raise them with the prosecution. 

1. Mr Horgan, senior counsel, who appears with Ms Ruddle, commenced his final address on 26 November and completed it on the 29th.  Ms Randazzo then responded on the 29 and 30 November.  At no time did she raise with me any issue concerning Mr Horgan’s address, and, in particular, relating to the matters now raised by Mr Stuart. 

1. When Mr Stuart raised those matters yesterday, Ms Randazzo, senior counsel, who appears with Mr Desmond for Karen Hills, expressly told me and submitted that she did not wish me to do anything else in relation to those matters than to accurately summarise the submissions made by Mr Horgan, on the one hand, and to summarise her response in her final address on behalf of Karen Hills on the other hand.

1. I then stood the matter down to enable Mr Horgan and Ms Ruddle to consider the point that had been raised by Mr Stuart.  In the afternoon, when the matter resumed, I had some discussion with Mr Horgan in the course of submissions.  In doing so, I did express some reservations about some of the aspects of his submissions.  However, in response, Ms Randazzo again made it clear that she did not wish me to say anything to the jury as to how they may, or may not, use Mr Horgan’s submissions, about which Mr Stuart had raised some points.  Ms Randazzo submitted, again, that I should do no more than accurately summarise Mr Horgan’s submissions and accurately summarise her response to them.

1. In those circumstances I have reached the conclusion that I should adopt the approach which is being intended for by Ms Randazzo. 

1. I do so for two reasons:

1. Firstly, Karen Hills is represented by experienced counsel.  Ms Randazzo and Mr Desmond have long experience in the criminal law and they each have appeared in a large number of criminal trials.  It is fair to say that neither of them has shown any reticence in seeking to protect their client’s best interests in this case, and indeed they have been vigorous in doing so.  They, more than anyone else, understand their client’s interests in this case.  They have had substantial time to consider Mr Horgan’s address and to consider the matters raised with them by Mr Stuart and raised with me by Mr Stuart yesterday.

1. Secondly, I agree with Ms Randazzo that it is very unlikely, in the extreme, that a jury will rely on or use Mr Horgan’s submissions in an impermissible way.  As Ms Randazzo has correctly pointed out, I have given to them directions concerning the status of counsel’s arguments, and I have given to them directions concerning how they may, or may not, draw inferences.  Indeed, I have given them two instances in the case as to when the principles relating to inferences should be carefully applied by them.

1. For those reasons, I consider that it is appropriate that I adopt the position contended for by Ms Randazzo, and I should do nothing else than simply summarise the submissions made by Mr Horgan and Ms Randazzo’s response.

1. I should also conclude by saying, as I remarked in submissions, that Mr Horgan in this respect was placed in what was a totally unprecedented position in his final address, because of the manner in which this particular aspect of the case for Karen Hills had been conducted.  In my view, it is understandable that he, as prosecutor, made the submissions he did, and I am not critical of him for doing so.  While, in submissions before me, I expressed some reservations about some aspects of his address, I have not reached any concluded view about them, in light of Ms Randazzo’s submissions, that I should do no more than summarise the competing submissions.