Director of Public Prosecutions v Holland
[2023] VSC 322
•13 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0388
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| KLAY HOLLAND | Accused |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 24 and 25 February 2023 |
DATE OF REASONS: | 13 June 2023 |
CASE MAY BE CITED AS: | DPP v Holland |
MEDIUM NEUTRAL CITATION: | [2023] VSC 322 |
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CRIMINAL LAW – Jury Directions – At trial of accused for manslaughter (acquitted) and rape (convicted), defence counsel requested that trial judge give certain directions to the jury – Trial judge declined to give those directions – Reasons for trial judge not giving directions requested by defence counsel – Jury Directions Act 2015, ss 12, 14, 32, 43 and 44L.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Ms C Foot | Office of Public Prosecutions |
| For the Accused | Mr A Patton with Ms K Mildenhall | SLKQ Lawyers |
HIS HONOUR:
BACKGROUND
On 7 March 2023, after a trial of approximately four weeks, Klay Holland was found guilty of raping Shane Cox but not guilty of his manslaughter. These are my reasons for not giving certain directions to the jury that were requested by defence counsel pursuant to the Jury Directions Act 2015.
All section references below are to that Act, unless otherwise indicated.
Circumstances of offending
On the night of 15 to 16 March 2021, Cox entered Unit 1/12 Fay Street, Melton as an intruder. He was armed with a knife. A number of people were present in the unit at the time Cox entered, including Holland who disarmed Cox, striking him with a baseball bat. It was the prosecution case that over several hours Holland continued to strike him with the baseball bat, long after Cox was a threat, eventually resulting in Cox’s death. It was also the prosecution case that whilst Cox was still alive, Holland penetrated his anus with an imitation firearm twice, the first occasion being the subject of the rape charge of which Holland was convicted and the second occasion being an uncharged act.
The persons present at the unit for all or some of the time that Cox was there were Tom Briody, Lewis Brown, Dianne Cutmore, Matthew Fisher, Tania Kerr and Heremoana Tauira. There was evidence to suggest that Andy Hellion (aka Andy Bourne), an associate of Kerr, also came to the unit at Kerr’s request whilst Cox was there.
Directions requested but not given
The jury directions that were requested by defence counsel but not given were:
·a direction regarding the failure of the prosecution to call Brown and Hellion/Bourne to give evidence (non-direction 1);[1]
·directions that two witnesses, Kerr and Tauira, were potentially unreliable witnesses because both had memory difficulties and Kerr was substance affected at the time of relevant events (non-direction 2);[2]
·directions regarding Tauira being motivated to lie for fear of Kerr (non‑direction 3).[3]
[1]Transcript, 23 February 2023, p 1022 ff.
[2]I note that defence counsel originally asserted that there was evidence that Tauira was also substance affected at the time of relevant events, but he subsequently withdrew that assertion (see Transcript, 23 February 2023, pp 1014–1016).
[3]Transcript, 23 February 2023, p 1028.
Legislative Framework
The relevant legislative framework is contained in ss 12, 14, 32, 43 and 44L:
12 Legal practitioners must request that particular directions be given or not given
After the matters in issue have been identified in accordance with section 11, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of—
(a) the matters in issue; and
(b) the evidence in the trial relevant to the matters in issue.
14 Trial judge must give requested directions
(1) The trial judge must give the jury a requested direction unless there are good reasons for not doing so.
(2) In determining whether there are good reasons for not giving a requested direction to the jury, the trial judge must have regard to—
(a) the evidence in the trial; and
(b) the manner in which the prosecution and the accused have conducted their cases, including—
(i) whether the direction concerns a matter not raised or relied on by the accused; and
(ii) whether the direction would involve the jury considering the issues in the trial in a manner that is different from the way in which the accused has presented his or her case.
32 Direction on unreliable evidence[4]
[4]I note that I gave s 32 directions to the jury regarding a number of witnesses, including Kerr and Tauira (Transcript, 28 February 2023, p 1202 ff).
(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.
(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—
(a) the significant matters that may make the evidence unreliable; or
(b) ...
(3) In giving a direction referred to in subsection (1), the trial judge must—
(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of—
(i) the significant matters that the trial judge considers may cause the evidence to be unreliable; or
(ii) …; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
Notes
1 Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so ...
43 Direction on prosecution not calling or questioning witness
(1) If the prosecution does not call … a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution—
(a) was reasonably expected to call … the witness; and
(b) has not satisfactorily explained why it did not call … the witness.
(3) In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution's case.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 43(2) qualifies the threshold for giving a requested direction …
44L Direction on prosecution witness's motive to lie[5]
(1) If the issue of whether a witness for the prosecution has a motive to lie is raised during a trial, defence counsel may request under section 12 that the trial judge direct the jury on that issue.
(2) In giving a direction referred to in subsection (1), the trial judge must explain—
(a) the prosecution's obligation to prove that the accused is guilty; and
(b) that the accused does not have to prove that the witness had a motive to lie.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so …
[5]I note that I gave a s 44L direction in relation to Briody and Kerr (Transcript, 1 March 2023, p 1281 ff).
Some relevant evidence given at trial
The accused’s trial by jury began on 8 February 2023.
7(a) Evidence relevant to non-direction 1
In relation to the failure of the prosecution to call Brown and Hellion/Bourne, the Informant Luke Farrell gave the following evidence in examination in chief:
We've heard throughout the course of this trial reference to Lewis Brown?‑‑‑Yes.
We're not going to hear any evidence from Lewis Brown. What was his involvement with you in relation to this investigation?‑‑‑Initially, he was difficult to locate. After a time, he was arrested and interviewed by me. He, ultimately, was not charged with any offences and efforts were made to secure his evidence as a witness and he was uncooperative with that process.
…
We've also heard reference to an Andy Bourne or an Andy Hellion?‑‑‑Yes.
I understand that's the same person?‑‑‑It is, yes.
Did you, throughout your investigation, speak with Mr Bourne?‑‑‑I did.
And did he provide any information or a willingness to provide a statement?‑‑‑He provided some information and refused to make a statement.
And you've not been able to secure his attendance to provide a statement. Is there a reason for that?‑‑‑Well, there are certain classes of people who an order can be made to compel their attendance at a preliminary hearing. One of the considerations in relation to that is whether the person is a suspect and I considered Mr Bourne a suspect for offences in relation to this matter.
What offences, specifically, did you consider him a suspect for?‑‑‑The offence of assist offender or accessory to murder ‑ accessory to manslaughter.
Was he ever charged?‑‑‑He was not.
Why was he never charged?‑‑‑The evidence, in my view, wasn't sufficient.[6]
[6]Transcript, 23 February 2023, pp 978–979.
Under cross-examination, the Informant gave further evidence regarding a lack of cooperation on the part of Brown and Hellion/Bourne:
Lewis Brown, you've given evidence, wasn't particularly cooperative ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ in the course of your dealings with him. When he refused to make a statement, you made application for him to be compulsorily examined in court?‑‑‑Yes.
A process that's done in circumstances where people refuse to make a statement?‑‑‑Yes. There is a number of preconditions before an order will be made, but that's one of them.
That was unsuccessful, ultimately?‑‑‑Yes.
A further application was later made and Mr Brown attended court but, again, didn't cooperate?‑‑‑That's right. [7]
[7]Transcript, 23 February 2023, p 997.
7(b) Evidence relevant to non-direction 2
Cutmore gave the following evidence in examination in chief:
When you got to the house, what did you do?---Can I have a certificate?
HH: Yes. That is a matter I'll need to discuss with you in the absence of the jury.[8]
…
Ms Cutmore, I asked you when you got to the house, what did you do?---Had juice.
And by 'juice' you mean?---It's a drug that makes you feel drunk.
Is it known by another name?---I'm not sure.
GHB?---Yep.
Where were you in the house when you had that?---Tania's bedroom.
Were you with anybody?---Tania.[9]
[8]Transcript, 20 February 2023, p 636. I granted the witness a s 128 Certificate.
[9]Transcript, 20 February 2023, p 639.
7(c) Evidence relevant to non-direction 3
Tauira gave the following evidence under cross-examination:
You've given evidence about having been arrested by the police and interviewed. When you were released from custody, that more or less marked the end of your relationship with Tania; is that right?---Yes.
And you discovered, did you, when you returned to your house, that it had been broken into?---Yes.
That was something you blamed on Tania?---No, I didn't blame her for it.
Did you suspect she had something to do with it?---No.[10]
[10]Transcript, 13 February 2023, p 324.
…
Did Tania threaten you?---No
Did she, after all of this, on the 16th or the 17th, say something to you about, 'Keep me out of it. Keep Andy out of it'?---No.
You thought that she'd organised for people to run through your house during the time that you were arrested, didn't you?---I don't know if it was her that organised it or - - -
You were released from custody sometime about 20 past or half past 1 on the 18th?---The morning, yes.
At 4 am, there's a message sent from your phone to hers, 'Yeah look what you've done now. Who the fuck did you send to mine, ey?' Tania's response, 'WTF' - what the fuck - 'are you on about? I never sent anyone'?---Yeah, I remember sending that.
You thought she'd sent someone through your house?---Yes.
Why? You can't answer that question so I'll ask it this way.
Your thoughts were, 'She reckons I've tipped her in. This is a warning'?---Yes.
Nothing had been taken, the house had just been - - -?---
Destroyed, yeah.
- - - destroyed?---Yes.[11]
The Informant Luke Farrell gave the following evidence:
Yesterday, we heard some evidence about a left Adidas shoe that was found - that was tested from the biologist and that was a shoe that was located at Wilsons Road, being Tauira's address; is that correct?---Yes, that's right. I executed a search warrant there on the evening that Mr Tauira was in custody.
And that search warrant disturbed some of his property; is that correct?---Yes, quite a bit of his property.
Quite a bit of his property?---Yep.
And to your knowledge, was any run-through reported around the same time of that property?---No, but the police - I had to force entry into the address.
You had to force entry into the address?---Yes.[12]
[11]Transcript, 20 February 2023, p 732.
[12]Transcript, 23 February 2023, p 984.
On the morning of 23 February 2023, the Prosecution closed its case and the Defence, after calling one witness (a brother of the accused), closed its case.
SUBMISSIONS
On the afternoon of 23 February 2023, in the absence of the jury, counsel and I discussed the directions I should give the jury under the Jury Directions Act 2015.
Non-Direction 1
In relation to the prosecution’s failure to call Brown and Hellion/Bourne, counsel said this:
10(a) Defence Counsel (DC)
DC: I know Ms Churchill took this head‑on with the informant, but the prosecution not calling or questioning witnesses; significantly, Andy Bourne or Lewis Brown. I appreciate that Andy Bourne's situation may be different to that of Mr Brown. Even if he was considered to be criminally concerned, that restricts their ability to compulsorily examine. But Mr Brown's lack of cooperation, in my submission, is not a satisfactory reason for failing to produce him at the trial.
HH: So the application is, based on what you've just said, limited to Lewis Brown?
DC: I'd like it with respect to Mr Bourne as well.
HH: You might like it, but you identified a problem.
DC: Yes, it is a problem. It is a curable problem, in that there are all manner of protections available to Mr Bourne to give evidence on a compulsory examination; namely, the granting of a certificate, as we've seen throughout this trial.
HH: So it is your submission that there was nothing to prevent the prosecution/police from having him compulsorily examined?
DC: Mr Bourne?
HH: Mr Bourne.
DC: Yes, he could have been. With respect to ‑ ‑ ‑
HH: But no application was made.
DC: No application was made. The informant gave evidence that he viewed him as a suspect to an accessory charge. That wasn't undertaken.
HH: Yes.
DC: With respect to Mr Brown, he was eventually brought to court for a s 198B application.
HH: Yes.
DC: He didn't participate as wholeheartedly as people might have liked. He gave very perfunctory answers to Ms Churchill's questions and the hearing was aborted before there was any cross‑examination conducted. Mr Brown is not only a material witness in the sense that he is nominated by others as an eyewitness to the events; he is said to be present with Mr Fisher and either leaving at or around the same time as Mr Fisher or remaining in the house. So he is, in that sense alone, I say, a very material witness; all the more so, given the identification of his DNA on the metal broom handle and the fact that he is referred to in text messages as having been involved in the clean‑up and events that occurred subsequent to Mr Holland and others leaving the unit for the final time. There is a text message from Mr Bourne to Ms Kerr that refers in part to everything that was meant to be burnt has been put out ‑ I think in the shed ‑ by Lou and there's other evidence before the jury that items were meant to have been burnt by Mr Briody. In circumstances where the prosecution have had to make application under s38 for most, if not all, of the eyewitnesses, the failure to call someone else who might be considered unreliable, untrustworthy or unfavourable doesn't stack up. Perhaps save for Ms Farrugia, my client's family and Ms Jantzen and the professional witnesses, that criticism could be made of all the significant witnesses in the trial.[13]
[13]Transcript, 23 February 2023, pp 1022–1024.
10(b) Prosecutor (P)
P: The prosecution is only obliged to call witnesses ‑ I'll just bring this up, Your Honour ‑ who may have relevant evidence to give. We're not required to call witnesses who may be unreliable, untrustworthy or otherwise incapable of belief or ‑ perhaps I'll just stick with that for the moment. Mr Bourne, if I start with Mr Bourne. The criteria for a compulsory examination is a lot narrower when somebody is an accused person. They can also apply for exemptions, for example, from giving evidence. He remains an active suspect in relation to the accessory, as I understand it. There hasn't been, to date, sufficient evidence to ever charge him but it is not as simple as having him compulsorily examined. In addition to that, the informant did canvas ‑ ‑ ‑
HH: You agree that he could have been compulsorily examined.
P: The legislation is tighter. It is a requirement that if the person is a suspect, then the magistrate has to take that into account as to whether they ultimately grant leave. It is a possibility, it's certainly not ‑ ‑ ‑
HH: And no application was made.
P: No. It's a possibility rather than a likelihood. He is somebody who, when the informant spoke to him, didn't have any relevant evidence to give. So bringing him along to a compulsory examination or calling him in this courtroom was unlikely to change that. The two witnesses ‑ the high‑water mark of Mr Bourne's involvement are ‑ I think Mr Tauira says an Andy was there at some point; doesn't know a surname. Ms Cutmore describes a man who is perhaps consistent with the presentation of Mr Bourne. Mr Fisher positively identifies somebody else, Maxi. I asked him in his evidence whether he was known as Andy and he said, 'No, Maxi.'
HH: But then, in cross‑examination he was asked about his appearance and that matched the features that have been attributed to Andy, didn't it?
P: Certainly, I accept that that is so. And then the text messages and the communication between Kerr and Bourne is probably the highest of any potential involvement. But that doesn't change the fact that he indicated that he doesn't know anything, wasn't there at the relevant time. I struggle to see how calling him in these proceedings would have advanced either one of our cases, in circumstances where he says he doesn't know anything. And conversely, had I chosen to call him or been able to locate him ‑ I think he's actually in custody at the moment ‑ he's in custody at the moment, presents other issues, with the informant even speaking to him. Lewis Brown, we did make ‑ ‑ ‑
HH: That is all you want to say about Andy Bourne?
P: Yes, that simply (a) it is not reasonable to have called him; and (b) he had no relevant evidence to give, so the obligation to call him is not engaged, in my submission. It is not a situation where there is some account that he's given of the events that have unfolded to a police officer or something like that; quite the opposite.
HH: Matt Fisher, who seems to give the most fulsome account, talks about overhearing Tania say something about, 'I'll sort this out.' She gets on the phone and a relatively short time later this person who gives the name Maxi arrives. This is a person who matches the appearance of Andy Bourne, Andy Hellion. I haven't had a look at the contents of the ‑ have we got that ‑ has it been uploaded, that call charge record?
P: It is Exhibit S, I think ‑ yes.
HH: Exhibit S. I haven't got that here yet…
…
HH: …With that chart of telecommunication records, Exhibit S, we've got an exchange between ‑ can you take me to the relevant one.
P: Yes. It's probably p5 of 8.
HH: Yes.
P: It reads, as I understand it, 'I'm at Arrow's and' ‑ ‑ ‑
HH: What time is it?
P: Sorry. 8.52. This is from Mr Bourne to Ms Kerr.
HH: And how many seconds?
P: 24 ‑ they're actually back to front. They've come out of sequence, but they're put in the table in sequence so it makes sense. So they're slightly out of time sequence.
HH: So Bourne to Kerr at 8:52:23, 'Things are in ... (reads) ... let anyone in.'
P: 'Meet at corner', I think that is.
HH: 'And for now no ... (reads) ... drug dealers and addicts.' That leans considerable force, doesn't it, to the defence hypothesis that he was involved in the events of that evening.
P: Well, it cuts both ways, in my submission. He's talking, effectively, about getting rid of things.
HH: Yes, okay. Which is consistent with him coming around, if he is Maxi, and taking charge and organising the clean‑up and so forth. All right. The highest you say it reaches is he may have been Maxi.
P: May have been. There's also no evidence that this actually came from Bourne. There's an earlier communication from that telephone number indicating that Ollie was in fact using the phone. I think that is on p2 of 8, Your Honour.
HH: What you're submitting here, isn't this at odds with the fact that he's still under investigation for being an accessory after the fact?
P: At odds? No, it's consistent. He's still ‑ the informant still has a reasonable belief that he's involved at some point, I accept that, which makes it even harder to get him here. The informant can't go and speak to him in custody, for example, without an application; he can refuse. He has so far, through interactions with police, refused to engage. I have no reasonable belief that he would participate when he is in custody and he doesn't have to. There is nothing that he's done to indicate he would. The informant has spoken to him in the early stages of the investigation. He can declined to be interviewed, he can decline to be spoken to by police whilst he's in custody, as is his right. So getting him here, in my submission, is not reasonable and even if I did get him here ‑ ‑ ‑
HH: You'd said, even if we brought him here, compelled him to give evidence and if he was prepared to answer questions, he'd just say, 'I wasn't there.'
P: Words to that effect or nothing at all.
HH: Yes.
P: Which is, in essence, what Lewis Brown did. Several applications were before the Magistrates' Court, a compulsory order was granted. I understand he failed to attend on two, possibly three, occasions. Warrants were issued, bail was opposed, bail was granted nonetheless; on one occasion to the very next day. He still failed to appear. We withdrew the warrant in the Magistrates' Court because of the jurisdictional issues with having an outstanding warrant when someone is committed to this court for trial and then we re‑enlivened the application in the Supreme Court as a s 198 application to take evidence in advance of trial. I spoke to Mr Brown myself. I'm not giving evidence from the Bar table but I can safely say he was less than forthcoming and rather impolite. He came into court. I'm not sure if Your Honour has viewed the transcript but it was an exercise in futility, on a generous view. I paused the proceedings at the point where he was willingly ‑ it appeared that he was willingly about to perjure himself rather than give evidence. We had, on a number of occasions, offered him legal advice. He refused on every occasion. The judicial registrar who presided over those proceedings encouraged the taking of that advice and he outright refused in court. Bourne also ‑ I'm just reminded ‑ if I can just return to Mr Bourne for a moment ‑ also gave a record of interview, said he wasn't there and someone else was using his phone.
HH: Was Mr Fisher ever showed a photoboard and asked who is Maxi, if you can see Maxi there?
P: I don't think so. Sorry, I digressed back to Mr Bourne. Mr Brown was more than reluctant. He was outright resistant, outright hostile, and indicated he would not participate.
HH: Yes.[14]
[14]Transcript, 23 February 2023, pp 1043–1048.
10(c) Defence Counsel
DC: Just very brief responses to some things raised by Ms Churchill. The Crown not being required to call unreliable, untrustworthy or unbelievable witnesses. This trial has been marked by that. It's not as though Mr Hellion nor Mr Brown would have been outliers, in that sense. Mr Bourne has not been in custody since Mr Cox's death. There have been periods when he's been at liberty. The evidence of the phone contacts alone, in my submission, are such that warrant him having either made a statement or been called in on a compulsory examination. Your Honour, while the statutory protections for a suspect exist, in my submission Your Honour can't presume that what a magistrate may or may not have decided with respect to granting an application for compulsory examination if the application was made and refused, I couldn't be on my feet making this application, but there was no attempt to do so. Any information that he could have provided was not sought out. If it was as simple as ‑ ‑ ‑
HH: Did the defence ever ask for Andy Bourne to be compulsorily re‑examined or for him to be brought to court for a 198B?
DC: Questions were asked about that at and prior to committal. It went nowhere.
HH: What do you mean by that? That questions ‑ ‑ ‑
DC: Questions were asked about the status of Andy Bourne or Andy Hellion.
HH: Yes, but was it ever ‑ ‑ ‑
DC: No, there was no direct request ever made. But conversely, we can ask. It doesn't mean anything is going to happen.
HH: No, but ‑ ‑ ‑
DC: The request was made with respect to Lewis Brown.
HH: And that precipitated the application to compulsorily examine ‑ ‑ ‑
DC: I think we were probably in this courtroom back in April when he appeared.
HH: Yes.
DC: He did give fairly non‑responsive ‑ ‑ ‑
HH: You don't disagree with anything Ms Churchill said.
DC: I don't take any issue with the way Ms Churchill very fairly and understatedly described it. But nonetheless, he is a person that should have been before the jury, given the surrounding evidence in the trial, the evidence of his involvement in destruction of items. It puts him at the unit after the departure of Mr Holland. That's the critical aspect of what he could or could not have given evidence about. He is there ‑ he is referred to by Hellion (sic) as having taken items out for ‑ collected items for destruction and left them somewhere. There's a reference to two other people ‑ ‑ ‑
HH: Overnight, could you send through a marked‑up copy of Exhibit S?
DC: Highlighting those aspects?
HH: Yes.
DC: Just returning to Mr Hellion, very briefly. In his record of interview he says he didn't have the phone and wasn't making phone calls but the phone records demonstrate that is a lie in and of itself. It could well be a reason to press for his compulsory examination. But perhaps more importantly, the Crown case is that he or someone else came over. It is the way the case has been run from the outset. The prosecution don't say that the people who came over subsequently were involved in Mr Cox's death but they accept and say that they were there. That most definitely should be someone who's called to give evidence before a jury in a Supreme Court trial.[15]
[15]Transcript, 23 February 2023, pp 1051–1053.
Non-Direction 2
In relation to Kerr and Tauira being potentially unreliable witnesses because both had memory difficulties and Kerr was asserted to have been substance affected at the time of relevant events, counsel said this:
11(a) Defence Counsel
HH: So in relation to Ms Kerr, what are the significant matters that should be mentioned in that unreliable evidence direction?
DC: Drug use at the time ‑ as in on the night ‑ evidence of that from Ms Cutmore. There is also the evidence given by Ms Kerr about, in essence, her memories and recollections of the evening being disordered. Also a criminally concerned witness.
HH: Yes.
DC: I think those are the matters that go to her unreliability. The same constellation of matters, really, affect each of the others.
HH: Mr Tauira ‑ …‑ with Mr Tauira is there evidence of him using drugs on the night?
DC: My recollection was cannabis use but also alcohol use.
HH: Who gave that evidence?
DC: He gave evidence about the alcohol and I thought also smoking cannabis.
HH: Did he say he was intoxicated or stoned or anything of that degree?
DC: No, not evidence to that extent.
HH: Just that he'd used?
DC: Yes.
HH: Yes. Did he say his memories were distorted?
DC: There was an awful lot of, 'I don't know', 'I don't remember.' He didn't positively say his thoughts were disordered or scattered but he did say that he was unable to remember much of the night. He was the subject of s38 applications by the Crown in order to get out evidence that he'd previously given that he wasn't able to recall as he gave here.[16]
[16]Transcript, 23 February 2023, pp 1014–1015.
…
11(b) Prosecutor
P: Your Honour, with Mr Tauira, there's nothing in the evidence that I could see that indicates he was alcohol or cannabis affected.[17]
[17]Transcript, 23 February 2023, p 1041.
…
P: But I don't recall him specifically saying, 'I have memory problems.' I'll just ask ‑ ‑ ‑
HH: He did say 'I don't remember' a lot when he was recalled.
P: When he was recalled. I haven't looked at that ‑ ‑ ‑
HH: Particularly when he was recalled.
P: If that's in the transcript, I accept that that might be the case then. I'd only noted criminally concerned so I didn't look it up, so it is my notetaking lapse.[18]
11(c) Defence Counsel
DC: I've just checked the transcript when I took my seat and it was that the group was drinking, not specifically Mr Tauira, so that has fallen away.
HH: I'm sorry. You're not asking now for a ‑ ‑ ‑
DC: Drug or alcohol intoxication.
HH: Regarding ‑ ‑ ‑
DC: Tauira.
HH: ‑ ‑ ‑ Tauira.
DC: Yes.[19]
[18]Transcript, 23 February 2023, p 1042.
[19]Transcript, 23 February 2023, pp 1041–1042.
Non-Direction 3
In relation to Tauira being motivated to lie for fear of Kerr,[20] counsel said this:
[20]Transcript, 23 February 2023, p 1028.
12(a) Defence Counsel
DC: The fear of Mr Hellion really also extends to fear of Ms Kerr in what she might do, which I think was Mr Tauira's evidence. Some concern about her response or reaction if the ‑ ‑ ‑
HH: So for Tauira, fear of what she might do. Just in relation to him?
DC: Yes, Your Honour.
12(b) Prosecutor
P: ... But the fear of Ms Kerr, I don't recall evidence ‑ anybody saying that they were in fear of Tania. The fear of Mr Hellion ‑ ‑ ‑
HH: That was only in relation to Mr Tauira that Mr Patton wanted fear of what Tania Kerr might do.
P: I'll have a look at that. I'm not sure what he said about that, to be honest.
12(c) Defence Counsel
DC: With respect to Mr Tauira's fear/concerns about Tania's response, Your Honour will recall the exchange of text messages between them once he's released from custody where he accuses her, wrongly, of having sent people around to his house. Ms Mildenhall has just given me it. Page 731, in cross‑examination, 'You thought she'd ... (reads) ... is a warning?‑‑‑Yes.' So he did, in those circumstances, have grounds to be, if not fearful, concerned.[21]
ANALYSIS
[21]Transcript, 23 February 2023, p 1053.
Non-Direction 1
In relation to Brown, he made a no comment record of interview[22] and refused requests to make a police statement. An application for him to be compulsorily examined in the Magistrates’ Court was successful, but he failed to appear several times and that process was abandoned. Once Holland was committed, Brown was required to attend a s 198B hearing. He failed to appear on 4 April 2022 and Freeman JR issued a warrant for his arrest. He was arrested overnight and brought to court on 5 April 2022. In examination in chief by the prosecutor on that day, he said he was not present at the premises on 15 March 2021 when there was a break in[23] and he never witnessed an assault on Cox.[24] Many of his answers were along the lines of “I’m not sure” or “I don’t remember”. When Freeman JR told him at one point that he could be held in contempt of the court if he refused to answer questions, and recommended he obtain legal advice, he declined legal advice. Freeman JR remanded him in custody briefly while the prosecutor considered her position. When the prosecutor subsequently indicated that she could see no point in persisting with the questioning of Brown, this exchange occurred between Freeman JR and defence counsel:
Freeman JR: Mr Patton, I suppose at this stage, this isn't a witness who necessarily causes much issue for the accused based on what we've got to so far?
MR PATTON: I'm not going to risk making things worse for himself, Your Honour.
Freeman JR: No.
MR PATTON: At this point.[25]
[22]Transcript, 5 April 2022, p 114.
[23]Transcript, 5 April 2022, p 108.
[24]Transcript, 5 April 2022, p 109.
[25]Transcript, 5 April 2022, p 115.
Defence counsel did not suggest that after the debacle of the s 198B hearing involving Brown, the defence nonetheless requested the prosecution to compel Brown to attend the trial to give evidence.
In relation to Hellion/Bourne, he participated in a record of interview, saying he was not at the premises on the night in question and that someone else had the use of his phone. Unlike Brown, the defence never asked for him to be compulsorily examined, either in the Magistrates’ Court or in a s 198B hearing in the Supreme Court. Nor did the defence suggest that they had requested the prosecution to compel Hellion/Bourne to attend the trial to give evidence.
Given these circumstances, it seemed to me that the prosecution satisfactorily explained their decision not to call either Brown or Hellion/Bourne. The prosecution had reasonable grounds for thinking that both men would simply deny having any involvement in the events of the night in question. The fact that the prosecution could have sought leave to cross-examine them under s 38 of the Evidence Act 2008 is, in my view, of little significance in the circumstances of this case given the strong likelihood that they would maintain they had no involvement in the events leading up to the death of Cox and neither had made a statement to the contrary. The absence of a request by the defence to call either man at the trial would have confirmed the prosecution’s assessment that there was no point in calling them.
In conclusion, and applying s 43(2), I declined the request to give a s 43 direction because I was not satisfied that the prosecution: (a) was reasonably expected to call Brown and Hellion/Bourne; and (b) had not satisfactorily explained why it did not call them.
Non-Direction 2
In relation to non-direction 2, it is sufficient in my view to repeat what I indicated to the parties in an email sent to them by my Associate on 25 February 2023, relevantly:
·His Honour will not be including Substance Affected in the Unreliable Witness direction for Kerr … because he can find no evidence in the transcript that they were substance affected. Re Kerr, note that when Cutmore said she used ‘juice’ in Kerr’s room, she did not say Kerr also used some.
·His Honour will not be including Memory Difficulties in the Unreliable Witness direction because, in his Honour’s view, it is unnecessary to direct a jury that “It is the experience of the law that people with memory difficulties may be unreliable,” just as it is unnecessary to direct a jury that “It is the experience of the law that liars may be unreliable.” His Honour considers this is “good reason” not to mention Memory Difficulties. His Honour will, however, refer to the evidence of the various witnesses’ memory difficulties in summarising evidence that bears on credibility and reliability of the relevant witnesses.
Non-Direction 3
Regarding non-direction 3, the suggestion that Tauira was motivated to lie because he was fearful of Kerr lacked a proper evidentiary basis. The mere fact that at one point he mistakenly thought she may have organised a run-through of his premises did not mean that he was fearful of her. He denied being fearful of her. Given the state of the evidence, there was good reason not to give the requested direction that he was motivated to lie because he was fearful of Kerr.
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