Director of Public Prosecutions v Hills (Ruling No 4)

[2010] VSC 526

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:	25 October 2010
DATE OF RULING:	25 October 2010
CASE MAY BE CITED AS:	DPP v Hills & Ors (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2010] VSC 526

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CRIMINAL LAW – Attempted murder – Evidence – Admissibility – Attempt by accused’s father to dissuade witness – Not admissible. 

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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. In this case, the prosecution seeks to lead evidence from Kylie Meulenbrock about a telephone conversation which occurred between the accused NC and the witness in late December 2008, together with a further conversation between his father Allan Hills and Kylie Meulenbrock shortly after the telephone conversation took place.

1. In that latter conversation, Allan Hills, according to the witness, sought to dissuade her from recounting to the police her version of the events of the night, in respect of which this case is concerned.  The Crown seeks to lead that conversation against NC as an implied admission by NC of his guilt of the offences charged against him, by resort to the doctrine which has, perhaps, been misnamed consciousness of guilt.

1. In my view, the evidence is not reasonably capable of being used by a jury for that purpose.  Firstly, I do not consider that a jury could reasonably infer that the purpose for NC’s telephone call to Kylie Meulenbrock was to set up a meeting between his father and Kylie Meulenbrock, at which Allan Hills would seek to dissuade Kylie Meulenbrock from implicating NC in the events of 9 December 2008.

1. As Mr Bayles correctly accepts, a jury may infer that NKC made that telephone contact with Kylie Meulenbrock, in order to set up a conversation between Allan Hills and the witness relating to the events of 9 December 2008.  However, it would be entirely speculative for a jury to otherwise infer that NC then intended that his father would seek to persuade Kylie Meulenbrock not to implicate him in those events.

1. It is clear from the evidence of Ms Meulenbrock, given on the voir dire before me today, that while NC and indeed Brodie Cooper were present near the conversation, which later ensued between Kylie Meulenbrock and Allan Hills, they did not participate in that conversation at all.  Ms Meulenbrock has stated that both NC and Brodie Cooper were talking between themselves when the relevant conversation took place.  She agreed that it was a matter of guesswork as to whether in fact NC or Brodie Cooper could hear that conversation, and, indeed, she stated she could not hear what they were talking about.  Thus, their presence at the particular time at which the conversation took place does not advance the inference sought to be relied on by the Crown against NC.

1. In addition, I am not persuaded that a jury could infer reasonably that the conversation, which took place between Allan Hills and Kylie Meulenbrock, was a conversation in which Allan Hills did more than attempt to persuade Kylie Meulenbrock not to implicate Craig Hills who was the only person who was then in custody in relation to the events of 9 December 2008.

1. In the course of the conversation, Allan Hills only referred to Craig.  It is true that, on Kylie Meulenbrock’s statement, she sought to implicate the other accused, including NC in those events.  However, in the course of the conversation, Allan Hills only referred to Craig.

1. Further, as Mr Stuart pointed out to me, Allan Hills spoke in the first person singular and, it would seem to me, it is quite clear, by the substance of the conversation, the tenor of it and the circumstances in which it took place, that the conversation was a private conversation between himself and Kylie Meulenbrock.

1. In those circumstances, in my view a jury could not reasonably infer that the conversation between Kylie Meulenbrock and Allan Hills constituted in some way an implied admission by NC of his guilt of the charges arising out of the events of 9 December 2008.

1. I should add that if I had admitted the evidence, which I would not, the probative value of it would be well outweighed by the prejudicial aspect of it, namely, an attempt being made by the accused’s father to dissuade a witness from telling the truth.

1. However, it is not necessary for me to resort to the discretion in this matter, because in my view, a jury properly instructed on the principles, stated in R v Edwards[1], could not reasonably conclude that the conversation constituted an implied admission, in which NC had participated, of NC’s guilt of the offences charged.

   [1](1993) 178 CLR 193.