Director of Public Prosecutions v Hills (Ruling No 5)
[2010] VSC 527
•26 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 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: | 26 October 2010 | |
CASE MAY BE CITED AS: | DPP v Hills & Ors (Ruling No 5) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 527 | |
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CRIMINAL LAW – Attempted murder – Evidence – Admissibility of threats by accused to witness – Prejudicial effect would substantially outweigh probative value – Evidence not admitted – Evidence Act 2008 (Vic) s 135(a), 137.
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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:
The accused are charged with a number of offences, including the kidnap and the attempted murder of Leah Freeman on 9 December 2008. It is alleged that those offences were committed in company with Kylie Meulenbrock and Craig Hills. Ms Meulenbrock has pleaded guilty to two offences, with which she has been charged, on April 2010, and she has been sentenced by me in relation to those offences. The prosecution now proposes to call her as a witness on behalf of the Crown in this case.
The prosecution proposes to call evidence from Ms Meulenbrock as to the events of 9 December 2008. In addition, it is also proposed to call evidence as to conversations, which it is alleged took place between Ms Meulenbrock and the accused, Karen Hills, at the home of a person called Sharon on 11 February 2009. Ms Randazzo, Senior Counsel, who appears with Mr Desmond for Karen Hills, objects to the Crown leading evidence as to those conversations of 11 February 2009.
Ms Meulenbrock was interviewed by the police on 23 December 2008 in respect of the events on 9 December. In the course of that interview, she implicated herself, Craig Hills, Karen Hills and a third person called Tim in the events of 9 December. At about the same time, each of the other accused persons also underwent record of interview with the police, and, to a substantial extent, each of them made no comment interviews. Two months later Ms Meulenbrock made two statements to the police each dated 17 February 2009. The first and larger statement detailed the events of 9 December 2008. The second statement refers to the conversations of 11 February 2009, which are the subject of the objection made on behalf of Karen Hills.
In the latter statement, Ms Meulenbrock states that on 11 February 2009, she was at the house of the person called Sharon in St Albans in the evening. She was sitting in the laundry and heard Karen Hills come into the kitchen, so she closed the door between the two rooms. She said that as she was closing the door she heard Karen Hills say, “I would close the door too if I was you after reading your statement”. Ms Meulenbrock then states that Karen Hills opened the door, stood in front of her and said, “What, you think you’re not going to get locked up too? You’re the only one who said that story when we all no commented interviews. Why would you do that?”
Ms Meulenbrock then states that Karen Hills walked out so that she, Ms Meulenbrock, and another person then went into the house, sat down and watched television. Subsequently, according to Ms Meulenbrock, Karen Hills came into the room and said “Craig is still locked up today because of you and I want you dead. It will take one person to take you down with us. What happened to that girl is nothing of what will happen to you”. After making those comments, Karen Hills then walked away. Shortly after that, as Karen Hills was leaving, Ms Meulenbrock alleges that Karen Hills stated “You’re lucky I don't drag you outside now and bash you where your kid will be the only one to see it. You’d better change your story”.
Mr Horgan, Senior Counsel, who appears with Ms Ruddle for the Crown, has submitted that the evidence which of Ms Meulenbrock, which I have just outlined, is relevant and admissible. In particular, he has submitted that the conduct of Karen Hills, in seeking to intimidate Ms Meulenbrock from adhering to the account, which she had given to the police, by which account Ms Meulenbrock had already implicated Karen Hills in the events of 9 December 2008, is evidence of a consciousness by Karen Hills of her guilt of the offences which arose out the events of 9 December 2008.
In response, Ms Randazzo in substance made three submissions as to why the evidence ought not to be admitted against her client. First, she submitted that Ms Hills and her advisers had not been put on proper notice that the Crown intended to call the evidence contained in the second statement of Kylie Meulenbrock. She accepted that the statement was served under the cover of a notice of additional evidence in April 2010, but contended nevertheless the Crown had not hitherto indicated an intention to adduce evidence from Ms Meulenbrock in accordance with it.
Ms Randazzo referred to s 224(2) of the Criminal Procedure Act 2009 and submitted that the Crown should be precluded from leading evidence of the contents of that statement, unless there were exceptional circumstances made out entitling it to do so.
Secondly, Ms Randazzo submitted that the evidence is in any event irrelevant. She submitted that a jury would not be capable of rationally concluding that the alleged conversations, detailed in the statement, disclosed a consciousness of guilt by Karen Hills. Rather, she submitted that if the jury accepted the evidence of Ms Meulenbrock as to those conversations, the jury could not rationally exclude, as reasonably open, the inference that Karen Hills was angry at Kylie Meulenbrock for falsely implicating her in the events of 9 December 2008, and that accordingly Karen Hills made the alleged threats to Kylie Meulenbrock, in order to dissuade her from adhering to the false account which she had already given to the police.
The third submission made by Ms Randazzo is that if the evidence is otherwise relevant, I should exclude it pursuant to s 137 and/or s 135(a) of the Evidence Act. In particular, Ms Randazzo submitted that if the evidence were admitted it would be unfairly prejudicial to her client. The evidence relates to alleged threats to kill and to do violence to Kylie Meulenbrock. Ms Randazzo pointed out that the case against her client is that Karen Hills' primary involvement in the events of 9 December 2008 consisted of her making violent threats and gestures towards Leah Freeman.
Ms Randazzo submitted that an appropriate direction given by me to the jury, that they should not indulge in impermissible tendency or propensity reasoning, would not be effective to allay any prejudice occasioned to her client arising out of the admission of that evidence.
Secondly, she submitted that the evidence would from a forensic point of view be unfair if admitted against her client. She pointed out that Karen Hills was never interviewed in relation to the alleged events of 11 February 2009, and thus has not had the opportunity to place on record a denial as to the alleged conversations, or alternatively to give an explanation for them.
Accordingly, if the evidence of Ms Meulenbrock as to those conversations were admitted, Karen Hills would be placed in a forensic dilemma of either being required to go into the witness box to deny them, or leave them unchallenged. Ms Randazzo also pointed out that witnesses, who are alleged to have been present at or near the parties when the conversations occurred, have not been interviewed by the police, and thus there has been no proper investigation of the allegations made by Ms Meulenbrock in her second statement.
In considering those submissions, I turn first to the first point made by Ms Randazzo. In effect, Ms Randazzo submitted that the Crown had not given proper notice to the defence of its intention to educe evidence as to the conversations of 11 February 2009. Ms Randazzo pointed out that the evidence had not been adverted to in a summary of prosecution opening served by the Crown under s 182(1) of the Criminal Procedure Act. Therefore, she contended that the prosecution would need to establish the existence of exceptional circumstances under s 224(2), in order to be entitled to call that evidence.
Section 224(2) of the Criminal Procedure Act provides that if documents have been served and filed by the prosecution under Part 5.5 of the Act, the prosecutor must restrict himself or herself to the matters set out in those documents when opening the Crown case, unless the trial judge considers there are exceptional circumstances.
In this case, Mr Horgan, did not open consciousness of guilt. Thus it would seem to me s 224(2) does not on its own apply. Rather, Mr Horgan seeks to adduce evidence from Kylie Meulenbrock which he did not open to the jury.
In those circumstances, it is s 233(1)(a) which would apply, namely, that where a prosecutor seeks to call evidence which is not opened or contained in the summary opening, the prosecutor must seek leave from the trial judge where such evidence would be a substantial departure from the opening which has been foreshadowed to the defence.
Strictly in this case, the issue for me is whether I should give leave to Mr Horgan to call the evidence under s 233(1)(a) of the Criminal Proceeding Act.
In considering that first submission by Ms Randazzo, it is important to bear in mind the history of the circumstances in which Ms Meulenbrock has come to give evidence in this case. The original Crown opening was served on 10 March 2010, before Ms Meulenbrock pleaded guilty, and therefore at a stage in the proceeding when the Crown had not intended to call her as a witness. Subsequently, after Ms Meulenbrock pleaded guilty, the prosecution served both of the statements made by Ms Meulenbrock dated 17 February 2009 under cover of Notice of Additional Evidence. Thus, the Crown, in about April 2010, served the evidence on the defence to which objection is taken.
In the original opening which had been served on 10 March 2010, the prosecution did foreshadow an intention to rely on other matters as disclosing a consciousness of guilt by the accused. The trial was originally listed for hearing before me in April of this year. However, due to other circumstances, the matter was ultimately adjourned after some preliminary applications had been made before me. In the course of preliminary discussion and argument, I indicated to Mr Horgan that he should not open consciousness of guilt, because, on the materials which were currently in the depositions, it would not be possible to assess whether the matters then relied on by the Crown as disclosing a consciousness of guilt, were properly capable of going before the jury on that basis until the conclusion of evidence. The matter was adjourned and ultimately the trial of this proceeding came on 11 October 2010 on which date the jury was empanelled. On 7 October, the prosecution served a further opening, which, pursuant to the indication which I had already given to Mr Horgan, did not refer to consciousness of guilt, nor did it refer to the evidence of Ms Meulenbrock relating to the events of 11 February 2009.
Ms Randazzo submitted that she had assumed that the Crown did not intend to rely on the second statement of 17 February 2009. She submitted that she had not been advised by the Crown of an intention to rely on it for any purpose, and in particular, for the purpose now asserted by Mr Horgan. However, Ms Randazzo did not submit to me that if I gave leave to the Crown to adduce the evidence, the case of Ms Hills would be unfairly prejudiced by reason of the understanding by Ms Randazzo and Ms Hills’ advisers, that the evidence was not to be led. In other words, Ms Randazzo has not adverted to any forensic disadvantage which arises out of her labouring under a misapprehension that the evidence was not intended to be called on behalf of the Crown.
In those circumstances, it would seem to me that the appropriate basis, upon which I should consider whether I should give leave to the Crown to call the evidence under s 233(1)(a) of the Criminal Procedure Act, turns on the question whether the evidence should be properly admitted in the trial. By reference to the second and third submissions made by Ms Randazzo, the question, therefore, is whether, first, the evidence is relevant, and, secondly, whether the admission of it would involve unfair prejudice to Karen Hills, which would outweigh any probative value of the evidence. Thus, ultimately, the argument before me, and the resolution of the arguments, depend on the admissibility of the evidence.
Accordingly, I turn to the second point argued by Ms Randazzo, namely, the question of the relevance of the evidence relating to the conversations of 11 February 2009. The critical question which I must determine is whether, if the jury were to accept the evidence of Ms Meulenbrock as to the conversations of that date, the jury could rationally conclude that the conduct of Karen Hills, as disclosed by those conversations, revealed a consciousness by her of her guilt of the offences with which she has been charged.
As I stated, Ms Randazzo submitted that a jury could not rationally reach that conclusion, because the jury could not reasonably exclude the competing inference that Karen Hills, by that conduct, was doing no more than attempting to dissuade Ms Meulenbrock from falsely implicating her in the events of 9 December 2008. In my view, there is some force in Ms Randazzo's submission. The evidence, which is sought to be adduced, is not evidence of an attempt by an accused person to dissuade a witness from giving a version of events to police, which might inculpate the accused in an offence. Rather, here, Ms Meulenbrock had already given a version before the alleged conversations of 11 February 2009, and in that version of events, which she had given to the police, she had already implicated Karen Hills in the events of 9 December 2008.
The evidence, which is sought to be adduced by the Crown, is evidence of an attempt by Karen Hills to dissuade Kylie Meulenbrock from adhering to that account, by giving evidence against her in accordance with it. The question is whether a jury could rationally conclude that Karen Hills, by that conduct, was thereby disclosing a consciousness by her of her guilt of the offences.
In determining that question it is, I consider, particularly important to bear in mind the principle that the drawing of inferences of fact in a criminal trial is quintessentially the role of the jury as the judges of the facts in the case. In a criminal trial, a trial judge is only entitled to withdraw a potential conclusion of fact from a jury, if the judge is persuaded that a jury, properly instructed, could not rationally draw such an inference or conclusion. See R v Doney[1]; R v Cengiz[2].
[1][1990] 171 CLR 207 at 214.
[2][1998] 3 VR 720 at 737-8.
Bearing those principles in mind, I am not persuaded that the jury could not reasonably infer that, by her conduct, Karen Hills had displayed a consciousness of guilt. Further in my view, it is a matter for the jury whether it could rationally exclude the alternative competing inference, namely, that by her conduct, Karen Hills was doing no more than trying to dissuade Kylie Meulenbrock from adhering to an account, which she had already given to the police, and by which she had falsely implicated Karen Hills in the events of 9 December. While, as I say, there is some force in Ms Randazzo's submission as to that inference, nevertheless it is, I consider, open to a jury to rationally exclude it in the circumstances of the case.
On the other hand, the matters pointed to by Ms Randazzo do, I consider, logically affect the cogency and weight of any inference which a jury might draw against Karen Hills arising from the conduct attributed to her by Ms Meulenbrock on 11 February 2009.
Ultimately, if the evidence were to be admitted, that evidence would only form part of the circumstantial evidence, by which the Crown seeks to support the evidence of the complainant Leah Freeman. The probative weight of the evidence relating to the events of 11 February 2009 would, I consider, be necessarily and logically affected by the matters to which I have already referred, in particular, the potential explanation for the conduct of Karen Hills, which has been adverted to by Ms Randazzo.
That observation is, of course, relevant, and brings me to the third matter argued by Ms Randazzo, namely whether, if the evidence is relevant, it should nevertheless be excluded under s 137 of the Evidence Act, or alternatively s 135(a) of the Evidence Act.
Section 137 is mandatory in terms. It provides that in a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Section 135 is a discretionary provision relating to all proceedings, both criminal and civil, and it provides, inter alia, that a court may refuse to admit evidence, if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.
In this case, it is clear that the evidence, which the Crown seeks to adduce against Karen Hills, has the potential to create substantial prejudice against Ms Hills, if it were admitted. First, of course, it attributes to Karen Hills wrongdoing, which has the potential of substantially discrediting her in the eyes of the jury.
However, more importantly, the conduct in which it is alleged Karen Hills was involved on 9 December 2008 was particularly violent conduct. It is alleged that in the course of the events of 9 December 2008, Karen Hills threatened Leah Freeman that she would be killed. She has been charged inter alia with making an unlawful threat to kill Leah Freeman. In my view there is a significant risk that if the evidence of the threats made to Ms Meulenbrock on 11 February 2009 were admitted, the jury might thereby be induced to impermissibly indulge in a propensity or tendency line of reasoning against Karen Hills.
It is, of course, not uncommon for judges to give appropriate directions to juries in relation to indulging in impermissible propensity or tendency reasoning. Ordinarily, the experience of the courts is that juries are conscientious in adhering to those directions, and, with suitable directions to juries, the relevant risk of prejudice can be alleviated.
However, in this case it is important to bear in mind that the threats, which were alleged to have been made by Karen Hills to Leah Freeman, and the threats, which were alleged to have been made by Karen Hills to Kylie Meulenbrock, were each threats by Karen Hills of serious violence. The threats were each made in graphic terms and were quite frightening. There is in my view a not insignificant risk that, notwithstanding any direction which I might give to a jury, if the jury accepted the evidence of Ms Meulenbrock as to the events of 11 February 2009, the jury might thereby be unfairly and inappropriately influenced in determining whether they were satisfied beyond reasonable doubt that Karen Hills was involved in the events of 9 December 2009 as alleged by the Crown.
In the particular facts of this case, I am not persuaded that a direction given by me would sufficiently allay such a risk of unfair prejudice to Karen Hills.
Furthermore, in my view, there is another item of prejudice, which would be occasioned to Karen Hills in the trial, if I were to admit the evidence. As Ms Randazzo pointed out, Karen Hills was not interviewed by the police in relation to the threats she is alleged to have made to Ms Meulenbrock on 11 February 2009. Thus, she has not had the opportunity, had she been so minded, to either deny making the threats, or to give her account of what occurred on 11 February 2009.
If she had had such an opportunity, then of course her interview, and what she said in relation to those allegations, would be tendered in evidence by the Crown, and Karen Hills would not necessarily face the dilemma of either allowing the allegations of Kylie Meulenbrock to go unanswered, or alternatively entering the witness box to answer them.
However, she has not had that opportunity, and thus if I were to admit the evidence, she would be placed in what I would consider to be an unfair dilemma of either leaving the allegations unanswered, or, alternatively, making a decision to enter the witness box, when it is quite possible she might otherwise choose not to do so.
Mr Horgan submitted that such prejudice could be averted by Ms Hills now undergoing an interview with the police relating to the events of 11 February 2009. In my view, that would be a most unusual course to occur in a criminal trial, and it would not be appropriate to require Ms Hills to undergo such an interview. This is a criminal trial involving very serious offences which are charged against each of the accused. In such a case, an accused could not fairly be expected to undergo an interview as to events, in respect of which evidence has been given on behalf of the Crown in the trial against her.
In addition to that, it is, I consider relevant that potential witnesses to the events of 11 February 2009 have not been interviewed. The conversations occurred more than one and a half years ago. The court does not have, therefore, the benefit of the accounts given by those witnesses as to what was or was not said at the premises of a person called Sharon 11 February 2009. In particular, the fact that those witnesses have not been interviewed means that potentially Ms Hills may not have available witnesses who might otherwise have potentially assisted her.
Thus, in my view this second item of prejudice is equally made out. If the evidence were admitted, Ms Hills would be placed in an unfair forensic position by reason of its admission. There is authority for the proposition that such prejudice is comprehended by both s 135(a) and s 137 of the Evidence Act see Kennedy v Wallace[3].
[3](2004) 2008 ALR 474 at paragraphs 128, 129 (Gyles J).
In those circumstances, I consider that Ms Randazzo has made out two particular items of unfair prejudice to her client if the evidence were admitted. Firstly, it would have an unfair effect of considerations of the case against Karen Hills by the jury, which effect I am not confident I would be able to suitably offset by appropriate directions. Secondly, it would place her at an unfair forensic disadvantage.
On the other hand, as I have already indicated, the evidence, sought to be adduced against Karen Hills, is of probative value. However, equally, I consider that the probative value and the cogency of that evidence is limited by the fact that the conversations occurred after, and not before, Kylie Meulenbrock had already implicated Karen Hills to the police.
In those circumstances, I conclude that the risk of unfair prejudice to Karen Hills would outweigh any probative value of the evidence to it to be adduced on behalf of the Crown. For those reasons, I am obliged to exclude it under s 137 of the Evidence Act.
I should add that on balance, I would also be persuaded, if it were necessary for me to do so, to exclude it pursuant to the discretion under s 135(a) of the Evidence Act.
Accordingly, I rule that the evidence is inadmissible for that reason. If it is necessary, I would not give leave to the Crown under s 233 to admit it.
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