Director of Public Prosecutions v Hills (Ruling No 8)

[2010] VSC 596

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:	12 November 2010
DATE OF RULING:	15 November 2010
CASE MAY BE CITED AS:	DPP v Hills & Ors (Ruling No 8)
MEDIUM NEUTRAL CITATION:	[2010] VSC 596

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CRIMINAL LAW – Trial – Final address – Application to split final address between senior and junior counsel – Application refused.

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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 trial there are four accused.  The first accused, Karen Hills, is represented by Mr Randazzo SC and Mr Desmond.  It is intended that Ms Randazzo will present the final address on behalf of Ms Hills.  However, she has made application that Mr Desmond be entitled to present one part of the final address, relating to the conduct of the search of the Truganina premises by the police on 10 December 2008.

1. That application is opposed by Mr Horgan SC, who appears with Ms Ruddle for the Crown.  Mr Stuart, who acts for the accused Brodie Cooper, did not strictly oppose it, but he expressed his reservations concerning the application.  Mr Bayles, who appears for NC, and Mr Polak, who appears for RAC, neither support, nor oppose, the application.

1. Ms Randazzo made the application to me because Mr Desmond has conducted the cross-examination of the principal Crown witness concerning the search, and I am informed, he will cross-examine all other police witnesses relating to that aspect of the case.  She therefore submitted that Mr Desmond is more familiar with the details of the matters, which are to be put to the jury.

1. The ordinary, if not invariable, practice of courts in this State is that where an accused is represented by more than one counsel, the final address is presented by one counsel only.  Usually, but not always, it is presented by senior counsel.  Personally, both at the bar and on the bench, I have no previous experience of an instance in which a final address for an accused has been split in the manner contended for by Ms Randazzo.  The counsel, who appear in this matter, have advised me that their experience is similar, that is, it is particularly rare for that to occur.

1. Indeed, counsel have only referred me to two previous instances, in which they could recall leave being granted to counsel for an accused to split the address in the manner contended for by Ms Randazzo.  In my view, the practice, which is prevalent in this State, is based on important considerations of justice.

1. First, even if it is possible to delineate one or more discrete issues which might be the subject of separate addresses, there is inevitably the potential for unnecessary and confusing repetition, where the address is split between counsel.  Indeed, it is very rare that any such issue is capable of being so precisely defined as to prevent that occurring.

1. Secondly, it can be confusing for a jury if an address is split in such a manner.  This is particularly so where the matter, which is to be the subject of the separate address, has any connection with other issues, which are to be agitated in the principle address presented for the accused.

1. Thirdly, separate addresses can raise issues of unfairness to the Crown and to other co-accused.  It can give rise to an impression of favoured treatment being accorded to one accused over the others.

1. Fourthly, counsel has strict obligations to the court in making a final address.  The adversarial nature of our trial system, and the tense atmosphere of a criminal trial, do from time to time give rise to issues as to whether those obligations, during final address, have been complied with.  In such a case, the splitting of the final address may blur the critical line of responsibility for the address, which itself is important in ensuring that a trial is conducted properly and in accordance with legal principle.

1. Fifthly, unless the right to split a final address were reserved for exceptional cases, it would, I apprehend, interfere with the proper and timely disposition of criminal trials in this State.  The management of trials, individually and as a whole, would be disadvantaged, if such a practice were permitted to become the rule, rather than the exception to the rule.

1. The question, then, is whether there are exceptional circumstances in this case, which would justify me ruling in favour of the application made by Ms Randazzo.  In my view, such exceptional circumstances have not been demonstrated for the following reasons.

1. First, I do not regard the issues concerning the search at Truganina to be particularly detailed or complex.  In the course of lengthy and thorough cross-examination of the informant, Mr Ramage, by Mr Desmond, a number of clear and specific points were made as to the regularity and propriety of the search.  None of those points are particularly complex.  They can be efficiently marshalled in final address and put to the jury by leading counsel.  In my view, there would be no prejudice or disadvantage to the accused, Karen Hills, if Ms Randazzo, as leading counsel, were to present arguments in relation to that aspect of the case.

1. Secondly, in my view the search is not discrete from other issues relating to the evidence in this case.  Ultimately, the object of the attack on behalf of Karen Hills on the search is to undermine the results of the tests conducted by Dr Fitzpatrick on soil recovered by Mr Ross of Forensic Services from items that were seized at Truganina.  It is clear that that attack on the search relates to, and is connected, with matters antecedent to the search, to matters relating to the storage and transfer of items after the search, to the processes applied by Mr Ross in extracting the soil and to the tests undertaken by both Mr Ross and Dr Fitzpatrick.

1. In respect of a number of those issues, there is, in my view, no distinct bright line between those issues and the propriety and conduct of the search, which have been raised by Mr Desmond.  This is particularly so in respect of the conduct of the police both before and after the search. 

1. Thirdly, and connected with that, the search and the criticisms of the search, form part only of an attack, which has been made both by counsel for Karen Hills, and indeed by other counsel, on the investigation by the police of the events in respect of which the accused have been charged.  That is, the criticisms of the conduct of the search by the police, is not a stand alone issues.  The attack on the investigation of this matter by counsel for Karen Hills, and indeed by other counsel, is not confined to the search, but encompasses other issues.  In that respect, the search is not a discrete stand-alone issue. 

1. Fourthly, if I were to permit the split contended for by Ms Randazzo, it is clear that Mr Desmond would need to address the matters relating to the search at some point during Ms Randazzo's address.  In other words, he would not be addressing the jury at the very beginning, nor at the end of the address.  In that way, the splitting of the address would, in my view, have the potential to be confusing to the jury, and to give rise to matters of unnecessary repetition.  It would, in particular, increase the potential of repetition because,  it would seem to me, Ms Randazzo would be dealing with the balance of the evidence relating to the testing of the soil samples and the balance of the criticisms made on behalf of Karen Hills of the police investigation. 

1. The cases, in which I understand leave has been given to split a final address, have been very lengthy and particularly complex.  In my view, leave to split a final address in that way, should be reserved for such exceptional cases.  As I say, this case is not exceptional.  On the contrary, in my view, there are sound reasons not to grant leave to Karen Hills, to have her counsel split the address. 

1. In refusing leave, I am satisfied that no prejudice or disadvantage would be occasioned to Karen Hills, if Ms Randazzo, senior counsel, were to present the whole address on her behalf.  Accordingly, I do not grant leave to counsel for Karen Hills, to split the address in the manner contended for by Ms Randazzo.