Director of Public Prosecutions v Hills (Ruling No. 3)
[2010] VSC 610
•12 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1491 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAREN HILLS NC BRODIE COOPER RAC |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2010 | |
DATE OF RULING: | 12 October 2010 | |
CASE MAY BE CITED AS: | DPP v Hills & Ors (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 610 | |
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CRIMINAL LAW – Trial – Attempted murder – Application to discharge jury – Irrelevant comment by Crown witness reflecting adversely on accused’s father – Father to be witness relating to alibi defence – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G. Horgan SC and Mr 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:
The trial in this case commenced yesterday with the empanelling of the jury and openings by senior counsel for the Crown and counsel for each accused. The first witness for the Crown, Leah Freeman, has commenced to give evidence and she, at the moment, is in the middle of her evidence-in-chief.
Junior counsel for the first accused, Karen Hills, Mr John Desmond, who appears with Ms Randazzo senior counsel, has made application that I should discharge the jury on the basis of a comment made by Leah Freeman in the course of her evidence this morning.
The basic allegation in the case is that the four accused participated in the abduction of Leah Freeman from her home at East Brunswick at about 8 pm on 9 December 2008. It is alleged that Leah Freeman was then transported by them and two other people, Craig Hills and Kylie Meulenbrock, to a location near the Maribyrnong River, where an attempt was made to drown her.
In the course of giving her evidence as to what occurred on the banks of the Maribyrnong River, Ms Freeman, at p.161 of the transcript, was asked by Mr Horgan, senior counsel, who appears with Ms Ruddle for the Crown, to describe what Karen Hills was saying to her at the time that she was being dragged down the banks of the Maribyrnong River before being thrown into it. In response, Ms Freeman said as follows: “‘Cause I had said to Karen, ‘Why would you do this? I’ve been there for you right through the whole of, you know, the trauma that you’ve been through.’ Her dad raped her, I’m sorry to bring that up.”
It is that remark, referring to the alleged rape of Karen Hills by her father, which has provoked the application, on behalf of Karen Hills, for the discharge of the jury. Mr Desmond submitted that Allan Hills will be an important witness in this case on behalf of his client, whether Allan Hills is called by the Crown or on behalf of Karen Hills herself.
Allan Hills, in his statement to the police, indicated that on the evening of the events with which this case is concerned - that is 9 December 2008 - he was at home with Karen Hills and he was able to confirm that she was at home at least until 7 pm. He did not say that thereafter, she went out. Rather, he said that he had a bath and he did not see Karen thereafter because she slept upstairs. Mr Desmond will contend firstly that that evidence is important in supporting an alibi, of which notice has been given by Karen Hills, that she was at home until after 8 pm on that night.
Secondly, and more significantly, Mr Desmond has told me that there is some CCTV security footage of the premises, at which Karen Hills was then residing at Backhouse Avenue, which would indicate or demonstrate that Karen Hills was at home until about 8.21 pm on the evening in question before she is depicted in that video leaving home. If the date and time on the video is accurate, then clearly Karen Hills would be entitled to an acquittal in this case. Mr Desmond has submitted that Allan Hills will be an importance witness as to the provenance of the video, and that he will give evidence, inter alia, that on the day after the offence with which this case is concerned, he drew the attention of the informant, Mr Ramage, to the existence of the video.
Mr Desmond submitted that the throwaway comment, made by Ms Freeman in the course of her evidence, irrevocably tarnishes the credit of Allan Hills, and thus will undermine the efficacy of any evidence given by him in respect of the two matters to which I have just referred. He submitted that the prejudice to Allan Hills’ credit, and thus to the defence case, is such that it cannot be suitably offset by a direction given by me to the jury, and that thus, there is a high degree of necessity made out for me to discharge the jury.
The test, so stated by Mr Desmond, is of course correct. I must, in order to discharge a jury, be satisfied that there is a high degree of necessity to do so, and, in applying that test, of course, I take into account that this is going to be a lengthy trial, and we are at the moment in day 2 of it.
I also accept that, based on the matters Mr Desmond has drawn to my attention, Alan Hills is potentially an important witness in this case in support of the case of Karen Hills. I also accept that, to say the least, it is unfortunate that Ms Freeman made the comment which she did in her evidence.
The critical question for me is whether the effect of that comment, made by Ms Freeman in the course of her evidence, can be suitably offset by a direction given by me to the jury that they should disregard it. Notwithstanding the submissions of Mr Desmond, I am not persuaded that a direction to that effect would not offset the prejudice. Indeed, I am confident that an appropriate direction given by me to the jury at this stage of the trial would offset any unfair prejudice to the credit of Alan Hills and thus to the case of Karen Hills.
There are a number of reasons for me reaching that conclusion. First, the comment made by Ms Freeman was made in short compass. Indeed, the offensive words consisted of four in number. Those words are contained in fairly lengthy evidence given by Ms Freeman and indeed we are not yet at the end of her evidence-in-chief.
Secondly, the comment was made and seemed to be made in passing. It was made in a sense almost as a throwaway line. I was not wearing earphones at the time that I heard it. I heard the allegation of rape but I did not hear the allegation of the person who was identified, but I accept that she did identify Mr Alan Hills as the person who is alleged to have raped Karen Hills. Nevertheless, my recollection of the tone of voice in which it was made, and the way it was made, was as a throwaway line made in passing without any particular emphasis.
Thirdly, there is some significance in the fact that although she used the words “her Dad”, Leah Freeman did not refer to Alan Hills by name.
Fourthly, it is I think important to bear in mind that on any view of the case, some time will pass before Alan Hills is called either by the Crown or on behalf of Karen Hills to give evidence in the case. The jury’s attention will be absorbed by a lot of evidence in relation to other matters, including some technical matters, and it would seem to me that if there was any residual memory of what was said, which I doubt, that that memory would soon be eroded by the need for the jury to concentrate on a number of other substantial matters which will be put before them in evidence.
Finally, and most significantly, in my view, and it is indeed the view of the common law, juries have time and again shown themselves to be properly amenable to the type of direction which the comment made by Leah Freeman calls for me to give as the trial judge. Regularly in these courts, juries are directed to disregard pieces of evidence which might be prejudicial and which are irrelevant. They are often called upon to use particular pieces of evidence in a limited way. Whilst it cannot always be perceived that juries have been faithful to it, nevertheless in my view, juries have time and again shown by their verdicts and their approach to a case that they are highly amenable to such directions and that they do obey them.
Mr Desmond submitted that this is not the case because the allegation made in this case is particularly odious, that is, an allegation of rape and incest. He likened this to one of the sex cases, that is a case in which an accused is charged with a sexual offence and to the proper sensitivity of the law in ensuring that irrelevant allegations of other sexual wrongdoing are not put before the jury.
The short answer of course to that argument is that Alan Hills in this case is not charged with a sexual offence. The particular perniciousness in the type of cases to which Mr Desmond referred is the fact that juries may wrongly reason from tendency and the type of unpermitted allegation to a tendency to commit the offence charged.
Bearing all those matters in mind and having listened carefully to the cogent arguments made by Mr Desmond, I am nevertheless of the firm view that an appropriate direction given by me to the jury that they should disregard the remark made by Ms Freeman in her evidence would be effective and would offset any potential prejudice to the case of Karen Hills.
I therefore reject the application to discharge the jury. However, as I have already indicated, before the jury are recalled, I intend to give a very firm direction to this witness that she must only answer the questions asked of her, and must be very careful not to make throw away comments which could be unfair to any of the accused.
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