Director of Public Prosecutions v Hills (Ruling No 9)

[2010] VSC 597

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:	1 December 2010
DATE OF RULING:	2 December 2010
CASE MAY BE CITED AS:	DPP v Hills & Ors (Ruling No 9)
MEDIUM NEUTRAL CITATION:	[2010] VSC 597

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CRIMINAL LAW – Joint trial – Application by accused to discharge jury – Application arising from address by counsel for co-accused – 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. Mr Desmond, junior counsel for the first accused Karen Hills, has made an application that I discharge the jury in this trial against his client. 

1. This trial commenced on 11 October, and final addresses commenced on 26 November.  Mr Horgan, senior counsel, has addressed on behalf of the Crown; Ms Randazzo, senior counsel who appears with Mr Desmond for Karen Hills, has made her final address on behalf of her client; and Mr Bayles has made his final address on behalf of NC.

1. Yesterday, 1 December, shortly before lunch, Mr Stuart, who appears on behalf of the accused Brodie Cooper, commenced his address.  Immediately after lunch, Mr Desmond made the present application to me on the basis of a number of comments made by Mr Stuart in the course of his address. 

1. The aspect of Mr Stuart’s address, which has given rise to this application, arises from an issue in the trial as to whether Anthony Carnevale was involved in the events of 9 December 2008, which are the subject of the charges against each of the four accused.  That issue itself derives from the evidence of the witness Sarah Ahmad, who said that she saw Anthony Carnevale participating in the events, which she saw at 13 Clara Street, East Brunswick, shortly after 8 pm on that evening.  Anthony Carnevale was not interviewed by the police or charged. 

1. The first witness who gave evidence in this case was Leah Freeman, the victim of the offences for which the accused have been charged.  Ms Freeman was cross-examined on the basis that she had not nominated Anthony Carnevale, because he was then the boyfriend of her daughter Rhiannon Boyd.  The police have also been criticised for failing to properly investigate the potential involvement of Anthony Carnevale in the events of 9 December.

1. In the course of the trial, and, it would seem, in his final address, Mr Stuart has sought, and will be seeking, to establish that Anthony Carnevale was present at the events of 9 December, and was criminally involved in them, as a basis for a submission by him that Leah Freeman and Kylie Meulenbrock both wrongly nominated his client, rather than Anthony Carnevale, as one of the culprits involved in the offences against Leah Freeman.

1. Ms Karen Hills gave evidence that, on the evening in question, she left her premises at Sunbury at 8.22 pm, and that she arrived at Anthony Carnevale’s home at about 9 pm, where she remained until shortly after midnight.  A video of the CCTV footage has been tendered, purporting to be CCTV footage taken at Karen Hills’ father’s home in Sunbury at 8.22 pm on the evening of 9 December. 

1. Anthony Carnevale was called to give evidence on behalf of Karen Hills, who is his mother.  He gave evidence that he left work shortly after 7.45 pm and arrived home at about 9 pm.  When he got home to Truganina, Karen Hills was already present.  He stated that Karen Hills remained at his home at Truganina until about midnight.  Thus, Anthony Carnevale’s evidence supports the alibi, which has been given on behalf of Karen Hills.

1. Anthony Carnevale also stated that he made a copy of the CCTV footage, which was taken at Sunbury, and thus, his evidence vouches for the authenticity of the video of that footage which was tendered in evidence.  In his evidence, he also gave an explanation, both as to the ownership, and the condition, of two pairs of runners, which were found by police in the trough in the laundry at Truganina, when they searched it on 10 December. 

1. Mr Desmond has made this application based on a number of matters, which have been stated by Mr Stuart, and indeed which he has foreshadowed continuing to argue in the course of his address.  First, Mr Desmond has submitted that Mr Stuart gratuitously attacked both him and his leader Ms Randazzo, senior counsel in respect of the manner in which Mr Desmond cross-examined the police and other witnesses in respect of the seizure of items by police from the premises at the Truganina address, and in respect of the forensic examination of those items.

1. Secondly, Mr Desmond pointed out that Mr Stuart has made submissions challenging the authenticity of the CCTV footage, which Anthony Carnevale has stated that on 11 December he recorded onto a video tape.  Mr Stuart has suggested that Anthony Carnevale was complicit in the fabrication of a false video, in order to assist in constructing an alibi for his mother Karen Hills.  He also has challenged, in his address, the evidence of Allan Hills, that shortly after Anthony made the copy of the CCTV footage, he Allan Hills, handed a copy of it to the solicitors acting for Karen Hills.

1. Mr Desmond submitted that there was a substantial forensic prejudice occasioned to Karen Hills for her to be subject to gratuitous and unnecessary attack by counsel for a co-accused.  He submitted that this was particularly so in light of the efforts made in this trial by counsel for each of the parties to conduct their cases in a manner which did not affect the case of a co-accused, unless it was strictly necessary to do so. 

1. In determining this application made by Mr Desmond, the test for me is whether the submissions which have been made, and indeed have been foreshadowed by Mr Stuart, involve unfair prejudice to Karen Hills which could not be alleviated appropriately by any direction which I might give to the jury, and thus which might give rise to a high degree of necessity that I discharge the jury in the trial against her. 

1. Mr Desmond has submitted that the principal prejudice, occasioned to his client, was that the attack on the alibi evidence of Karen Hills was unnecessary to the case of Brodie Cooper and, as such, constituted an artificial buttressing by Mr Stuart of the Crown arguments in respect of both her alibi evidence and the evidence relating to the video tape.  On the other hand, Mr Stuart submitted that the matters raised by him do relate to the defence by him on behalf of his client, Brodie Cooper.  In particular, he submitted that they relate to the issue whether Anthony Carnevale was present at, and implicated in, the events of 9 December 2008, and thus as to the issue whether the key witnesses, Freeman and Meulenbrock, have falsely nominated Brodie Cooper as being present instead of Anthony Carnevale.

1. It is, of course, unarguable that the role of Anthony Carnevale in the events of 9 December has been an issue from a very early stage in this case.  Indeed, the issue was initially raised by Mr Desmond on 14 October when he cross-examined Leah Freeman in relation to an aspect of it.  More particularly, the issue has been agitated, with a degree of vigour, by Mr Stuart, on behalf of Brodie Cooper, as a basis for the proposition which he now seeks to advance, namely that it was Anthony Carnevale and not his client, Brodie Cooper, who was one of the culprits involved in the events of 9 December. 

1. Thus it is beyond argument that the issue as to whether Anthony Carnevale was involved in those events is relevant to the issues in this trial, and indeed Mr Desmond did not seek to persuade me to the contrary.  It follows, it would seem, that as part of that issue, it is relevant for Mr Stuart to seek to discredit evidence that Anthony Carnevale was at his home at Truganina at 9 pm, 9 December.  Thus it is relevant for Mr Stuart to criticise the evidence of both Anthony Carnevale and Karen Hills, which places Anthony Carnevale at the Truganina premises at that time.

1. One of the questions, raised by Mr Desmond, is whether it is relevant, to the proposition sought to be advanced by Mr Stuart, for him to make arguments about the authenticity of the CCTV footage. 

1. Mr Stuart submits that the arguments, which he has foreshadowed, and indeed which he has commenced to make, are relevant, because Anthony Carnevale is a witness who has given evidence on a number of issues which purport to support the alibi in the case of Karen Hills.  Mr Stuart has contended, and will contend, that in that way Anthony Carnevale has been put forward as a witness who, in effect, acts as a sweeper, covering a number of points which need to be covered on behalf of Karen Hills.  Mr Stuart intends to criticise various aspects of that evidence, in order to undermine the credibility of Anthony Carnevale’s evidence as to his own whereabouts on 9 December.  Stated in that way, it would seem to me to be a matter for the jury as to whether that type of argument to be advanced by Mr Stuart is a good or a bad argument, but I could not characterise it as being irrelevant to the argument which Mr Stuart wishes to make on behalf of his client to the jury.  Thus it would seem to me that Mr Stuart is not indulging in gratuitous or unnecessary submissions in relation to this aspect of the case.

1. Mr Desmond has argued that in advancing those submissions, Mr Stuart has breached what he describes as protocols established between the parties and by which the case is being conducted.  I do not agree with that.  What Mr Desmond describes as a protocol has its genesis with a draft order, which Mr Stuart initially proposed I should make on or about 4 November.  That proposal, made by Mr Stuart at that time, arose from the fact that counsel for Karen Hills were cross-examining witnesses in a way which was not seen to be particularly relevant to her case, but which might involve the introduction of inadmissible and highly prejudicial material against the co-accused.  As a result of that, Mr Stuart proffered a draft order in the following terms:  “That all parties shall give reasonable written notice to each other party the party’s intention to adduce evidence which may give rise to a high degree of necessity for the discharge of the jury in relation to one or more of the accused.” 

1. I declined to make that order, which was sought by Mr Stuart, but, in doing so, I encouraged the parties to abide by it and the spirit of it.  As I stated, the thrust of Mr Stuart’s submissions at that time, and indeed the encouragement I gave to the parties, was to avoid the introduction of irrelevant and inadmissible material against a co-accused, unless the introduction of that material was relevant to the party who was seeking to introduce it.

1. In this case, it would seem to me, in any event, there has been substantial notice given by Mr Stuart of his intention to make the type of arguments which he commenced to advance yesterday.  As Mr Stuart reminded me, when Mr Desmond made the submission before me yesterday, no warning had been given by those acting for Karen Hills that Anthony Carnevale was to be called as a witness for Karen Hills.  Indeed, contrary to the provisions of the relevant legislation, Ms Randazzo, when called upon to state the course she proposed to adopt, did not state her intention to call Anthony Carnevale and did not open his evidence.

1. Be that as it may, he was called to give evidence for Karen Hills on 23 November.  On the same day, when Mr Stuart commenced to cross‑examine him, and in response to an objection made to his cross-examination by Mr Desmond, Mr Stuart gave full warning that he intended to cover the ten points, on which he purported to give an alibi or support to Karen Hills, and indeed he proceeded to cross‑examine Anthony Hills in relation to all of those ten points.

1. On 30 November, in the course of Ms Randazzo’s final address, he gave further warning that he intended to attack the evidence of Anthony Carnevale relating to the condition and ownership of the shoes seized in the laundry trough by police at Truganina.  Thus, it would seem to me that Mr Stuart has, in any event, given as much notice as he could, to those acting for Karen Hills, that he intended to tackle the evidence of Anthony Carnevale in the way in which he has commenced to do so, in order to advance his submission that Anthony Carnevale is not telling the truth when he states that he was not present at and involved in the events of 9 December.

1. In addition, it is fair to say that in her final address Ms Randazzo made submissions in exhaustive detail as to the alibi evidence of both Karen Hills and Anthony Carnevale and as to the authenticity of the video which was taken from the CCTV footage at the premises at Sunbury.  I mean no disrespect to her at all, but it is fair to say that she left no stone unturned in addressing almost every conceivable issue which could arise in relation to those matters.

1. As I perceive it at the moment, Mr Stuart is not addressing matters which have not already been covered by Ms Randazzo in her final address.  Thus it would seem to me that there is no untoward unfairness to Karen Hills in Mr Stuart arguing as to the matters which he has argued and foreshadowed since they all seem to have been covered by Ms Randazzo in one form or another.

1. So far Mr Stuart’s arguments seem to me to be nothing more than a repetition or reinforcement of Mr Horgan’s arguments, and thus I do not consider that they would occasion any unfair prejudice to the jury.  As foreshadowed, I will, however, direct the jury later in my charge that the fact that a co-accused supports the Crown against the case of another co-accused does not make the arguments advanced by the Crown any better.  The argument so advanced is either good or bad, and will rise or fall, on its merits, regardless of the party by whom it was made, and regardless of the amount of parties by whom it was made.

1. Thus, I am not satisfied that there is any unfair prejudice to Karen Hills arising from the arguments so far made by Mr Stuart or foreshadowed by him and I therefore do not find there is a high degree of necessity, or indeed any necessity, to discharge the jury against her.

1. I should however reiterate the clear warning which I gave to Mr Stuart in submissions yesterday, namely, that he does need to exercise real care in constructing his arguments in relation to these matters, especially insofar as they may affect the position of Karen Hills as an accused.  I give that warning because if Mr Stuart does misstate the evidence in any material way, or if he makes a proposition which has not already been covered by Ms Randazzo and to which there is a ready and appropriate response, he might thereby create the need for me to make a comment on it in my charge and/or to give Ms Randazzo a limited leave to make a further address in relation to it.  Neither of those courses are desirable and it is therefore most important that Mr Stuart, as experienced counsel, takes particular care in not giving rise to a necessity for either of those courses to occur in the trial. 

1. However for the reasons that I have advanced, I reject the application made by Mr Desmond that I discharge the jury against his client.