Director of Public Prosecutions v Jarrod Leonard Frank
[2019] VSCA 306
•17 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0219
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| JARROD LEONARD FRANK | Respondent |
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| JUDGES: | PRIEST, BEACH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 December 2019 |
| DATE OF JUDGMENT: | 17 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 306 |
| RULING APPEALED FROM: | R v Jarrod Frank (Ruling No 4) (Supreme Court of Victoria, Justice Taylor, 13 November 2019) |
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CRIMINAL LAW – Interlocutory appeal – Pending trial for murder – Respondent fatally stabbed victim in course of physical altercation – Record of interview central to respondent’s claim of self-defence – Prosecution case inverted to assert fatal attack occurred outside the home – Trial stayed for abuse of process occasioning incurable prejudice – Whether impugned evidence from record of interview rendered irrelevant from inversion of prosecution’s case – Leave to appeal granted – Appeal allowed – Trial judge’s decision granting stay set aside – Prejudice to respondent ameliorable by judicial direction – Impugned record of interview highly relevant to self-defence – Evidence Act 2008, s 55.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Kissane QC with Mr G Hayward | Ms A Hogan, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr D Gibson | Victoria Legal Aid |
PRIEST JA
BEACH JA
T FORREST JA:
Introduction
An indictment filed in the Supreme Court charges the respondent with the murder of Scott Bury on 3 January 2018.
In circumstances which we will later discuss in more detail, on 13 November 2019 the judge before whom the anticipated trial was to proceed ordered a permanent stay (‘the interlocutory decision’ or ‘the ruling’)[1] on the basis that ‘there is an incurable, unfair prejudice occasioned because the prosecution has inverted its case’, the record of interview being central to the asserted incurable prejudice.[2] In the judge’s view, ‘the Crown has, in all the circumstances (the impact on the admissibility of the record of interview included) undermined confidence in the administration of justice’.[3]
[1]R v Jarrod Frank (Ruling No 4) (Supreme Court of Victoria, Justice Taylor, 13 November 2019) (‘Ruling’).
[2]Ruling, [14].
[3]Ruling, [17]. See also [183], [187].
Pursuant to certification of the trial judge granted on 21 November 2019,[4] the Director of Public Prosecutions seeks leave to appeal against the interlocutory decision on two grounds, which contend that the judge erred in her decision, first, ‘to exclude the record of interview of the [respondent]’; and, secondly, ‘to permanently stay the trial’.
[4]Criminal Procedure Act 2009, s 295(3) (‘CPA’).
For the reasons that follow, we are of the view that leave to appeal should be granted; the appeal should be allowed; and the interlocutory decision should be set aside. The practical result is that the order that the proceeding be stayed will be set aside. It will be a matter for the Director whether the trial will proceed, notwithstanding the substantial difficulties confronting the prosecution case.
General overview of the prosecution case
It is clear enough from the evidence that Mr Bury was killed by a stab wound to the abdomen. He also suffered a number of other incised wounds to his hands, arms, abdomen and back, together with several blunt force injuries. The prosecution case as now formulated is that all of these injuries were sustained during the course of a physical ‘tussle’ between Mr Bury and the respondent in the driveway of the deceased’s home on 3 January 2018. Significantly, very shortly before the tussle in the driveway, there had been a physical altercation between Mr Bury and the respondent inside the home, which had resulted in the respondent suffering an injury to the chest from a knife wielded by Mr Bury. Andrew Lentjes who is an acquaintance of the respondent’s, witnessed some of what happened both inside and outside.
The respondent had spent the previous night, 2 January 2018, at Lentjes’ home. On the morning of 3 January 2018, the respondent and Lentjes visited a shopping area of a central Victorian city. The respondent spoke to Mr Bury (whom he knew) who was sitting on a bench outside a shop. They discussed, and disagreed about, the calibre of the Luger pistol used by German officers in the Second World War. Remarkably, their disagreement over a thing so trivial turned into a bet involving hundreds of dollars.
After Lentjes had transacted some business at one of the shops, he, the respondent and Mr Bury went to Mr Bury’s unit, entering it at 11.53 am. Their arrival, and a great deal of what later occurred in the driveway of the deceased’s home, was captured by CCTV cameras mounted on the house immediately opposite.
The respondent then carried out an internet search, and discovered the answer to the issue concerning Luger pistols. He said to Mr Bury, ‘here you go bitch, here you go’.
Lentjes’ description of what occurred next is consistent with the respondent’s account in the record of interview with police conducted on 4 January 2018, the day following Mr Bury’s death. It seems that Mr Bury said something like, ‘you have called the wrong bloke bitch in the wrong house’. Mr Bury then went to the kitchen and armed himself with two large kitchen knives. He then mimicked the sharpening of the knives in front of his chest. Having observed this display, Lentjes said, ‘put the fucking knives away’ or ‘put them down’. Mr Bury and the respondent approached each other, however, and Mr Bury stabbed the respondent in the chest, causing a superficial horizontal tapering incision or abrasion on his left breast measuring three centimetres. (On medical examination the next day the respondent was also found to have a small curvilinear abrasion to his left jaw; a superficial injury to his left wrist of a small incised area tapering to a fine abrasion; a tiny injury on the back of his hand which could be a point abrasion; and a small bruise on his left elbow.)
When he saw the respondent’s injury, Lentjes said ‘youse [sic] are fucked, I’m out of here, come on [respondent]’. Lentjes is then seen on the CCTV footage at 12.09 pm walking down the driveway from the garage. He saw nothing further of what happened in the house, but he told police he heard a massive ‘bang’, the sound of glass breaking and the respondent saying, ‘you’re really fucked now cunt’. The respondent remained in the unit for six seconds after Lentjes left, then came out of the unit and raised his top to show his chest to Lentjes (who had seen blood seeping through his shirt).
In the record of interview, the respondent told police that, before he had come out of the unit, Mr Bury had tried to stab him in the heart with a carving knife, and that he got the knife off him and threw it. He also threw chairs at Mr Bury.
Photographs taken by police inside the deceased’s unit on 4 January 2018 depict an upturned table and chair and a smashed glass door. There is extensive blood spatter, and two bloodied kitchen knives and a bloodied metal bar were located in the garage. The only available inference is that they were dropped by the deceased.
The respondent was in the driveway for a minute and 21 seconds before Mr Bury emerged from the unit, and, so the prosecution concedes, was trying to leave the premises in the car in which they had arrived. (He had left the car keys inside the unit, and, rather than return inside to collect them, had endeavoured to start the car by raising the bonnet and fusing two terminals.) Lentjes then saw Mr Bury put two knives into one hand and pick up a metal bar from inside the garage. The deceased then ran towards the respondent, who was seated in the car. Lentjes observed the respondent to kick the car door open and Mr Bury to kick it closed. Mr Bury then hit the respondent with the metal bar through the window. The respondent somehow got out of the car and became involved in a wrestle with Mr Bury. He told the police that the fatal blow must have occurred whilst they were ‘tussling on the ground and [he] turned [the carving knife] around on [Mr Bury]’. When police asked the respondent about slash injuries to the deceased’s abdomen, he said that they must have happened at the same time. He said that he could not explain the two cuts to the back. When asked about the injuries to the deceased’s right and left hands, the respondent said that he could not provide explanations, and all he could say was that what happened was all outside during the tussle. The respondent denied using a knife inside the unit.
The different formulations of the prosecution case
It was accepted by counsel for the Director that, at the time that the informant interviewed the respondent on 4 January 2018, the informant’s opinion was that the fatal injury had been inflicted inside the deceased’s unit. Indeed, the prosecution case proceeded on that understanding through proceedings related to bail, committal proceedings, a directions hearing and pre-trial arguments. That the fatal injury had occurred inside was the way in which the case was formulated in the Summary of Prosecution Opening filed 10 April 2019.
On 31 October 2019, however, the prosecution indicated that it had changed its case so as to assert that the injuries to the deceased — including the fatal injury —could have occurred either inside or outside the deceased’s unit. The prosecutor submitted that the preponderance of evidence might persuade the jury that the fatal injury occurred outside. Although the judge decided on that occasion that she would stay the prosecution case as then formulated, she observed that if ‘the prosecution reconsiders the manner in which its puts its case, a different result may follow’. In that ruling, dated 4 November 2019, the judge indicated that it was theoretically open to the prosecution to change its case to assert that all injuries occurred outside, whilst noting that if the prosecution took that step it would raise a real issue as to the ability of the prosecution case to disprove self-defence. The judge made it clear, however, that if the prosecution decided to re-frame its case in that way, she would allow the parties to make further submissions. Among other things, her Honour observed:[5]
It seems to me that on the evidence, both as to the temporal opportunity for the accused to have inflicted any wound inside and the appearance and conduct of the deceased when he emerged from the garage, that it is more than likely that all the wounds sustained by the deceased occurred as he and the accused wrestled outside. As has been demonstrated above, Mr Lentjes is not a witness to much of that physical wrestle. His evidence that he did not see the accused with a knife on the driveway is not as crucial as the Summary of Prosecution Opening suggests.
No doubt that is what prompted the very late change in the Crown case and the submission of the prosecutor that the preponderance of evidence would suggest that the fatal blow (and indeed all other blows) occurred during the tussle in the driveway.
Theoretically, it is open to the Crown to frame its case that all injuries — fatal and non-fatal — occurred outside. As unfortunate as a late change in the Crown case is, that alone is insufficient to found a stay. Any prejudice suffered by the accused arising only from lateness can be cured by allowing the defence more time (if necessary).
But, if the Crown were to frame their case in that manner, it raises a real issue as to the ability of the Crown to disprove self-defence. …
[5]Emphasis added.
Finally, on 5 November 2019, the prosecutor informed the judge that the case would once more be reformulated. He announced that the case that would be advanced against the respondent was that all injuries — including the fatal injury — had been caused outside the unit. This further change in the case prompted a further application for a stay, which the judge granted. It seems that the judge’s central reason for deciding that the case should be stayed was her finding that the record of interview with the respondent was inadmissible.
The interlocutory decision
Faced with the third formulation of the prosecution case, counsel for the respondent sought a permanent stay on three bases:
· first, relying on three discrete matters it was submitted that there is a fundamental defect going to the root of the trial that cannot be remedied, those three matters being the evidence of the record of interview (which is central to the defence of self-defence), the blood spatter analysis and the committal cross-examination, all of which was obtained or elicited on the basis of the original case that the injuries were inflicted inside the house;
· secondly, it was contended that the current prosecution case is incapable of sufficient particularisation as to the acts performed by the respondent that are said to be an unreasonable response in the circumstances as he perceived them; and
· thirdly, it was argued that the manner in which the prosecution has twice changed its case — at the last minute — brings the administration of justice into disrepute.
In light of the way in which the case has developed, however, we need only concern ourselves with the contention that, based on matters relating to the record of interview, there is an irremediable fundamental defect going to the root of the trial; and the further contention that the late change in the prosecution case brings the administration of justice into disrepute.
Towards the beginning of her ruling, the judge summarised her conclusions as follows:[6]
For the detailed reasons that follow, the trial will be stayed. In short, there is an incurable, unfair prejudice occasioned because the prosecution has inverted its case. It centres on the record of interview.
That interview contains many exculpatory statements made by the accused (as well as an admission to inflicting the fatal wound) and represents the first opportunity of the accused to answer the allegations made against him. In Victoria, it is accepted that for both of these reasons, fairness dictates that generally all of an accused’s out of court statements should be led before the jury. But, those statements in this matter are inextricably imbued with the first formulation of the prosecution case, such that they cannot sensibly be led in evidence without prejudice. It is no remedy to posit that the accused could give evidence in the trial.
I do not consider that either [of] the difficulties arising from the blood spatter analysis or the conduct of the committal cross-examination amount to a fundamental defect. And, the Crown case is sufficiently particularised.
I do consider that the conduct of the Crown has, in all the circumstances (the impact on the admissibility of the record of interview included) undermined confidence in the administration of justice.
[6]Ruling, [14]–[18] (emphasis added to this and following passages). See also [33] below.
Counsel for the respondent had submitted to the trial judge that questions 462 to 567 of the record of interview were based on the now abandoned first formulation of the prosecution case, and are therefore inadmissible. Those questions and answers would not only introduce irrelevant and prejudicial allegations, but would likely confuse the jury. The answers to those questions, counsel argued, could not be edited without misrepresenting the effect of the evidence. Hence, the defence is unable to rely upon the respondent’s denials and explanations of self-defence, thereby largely losing the benefit of his record of interview. That disadvantage, it was argued, could only potentially be remedied by the respondent giving evidence.
The judge noted that, on the third formulation of the prosecution case, the deceased was uninjured at the time he went outside to the driveway through the garage, and the fact, of and circumstances in which, the respondent got a knife from the deceased inside the home are omitted entirely. Questions 462 to 567 of the record of interview, however, relate entirely to what occurred inside the unit. The record of interview was essentially conducted in two halves. The first was an open exploration of the entire circumstances of 3 January 2018; and the second — after a break in which the informant formed a view as to how the fatal injury was caused — focussed exclusively on the events inside the deceased’s unit and the deceased’s injuries.
In the first half of the interview, the respondent was encouraged to tell his version of events. At no stage during that half was the respondent challenged at all as to his version of events. During the second half, the respondent was challenged about what happened inside the unit. The informant said that he wanted to ask questions about that, and many questions followed. The respondent was specifically asked if he used the knife inside the unit, and if he lashed out at Mr Bury with the knife to fend him off. Every time the respondent gave an answer about the altercation in the driveway, his attention was returned to the altercation inside the house. And although the respondent was told that the matter ‘out of fairness’ would be worked through ‘piece by piece’, and that they would focus on the inside ‘to start with’, at no stage was the respondent ever asked a question about what had occurred outside in the driveway. In the course of the second half of the interview, the respondent made many detailed statements relevant to his perception of the threat posed by the deceased — both inside and outside — and the necessity for, and the reasonableness of, his response to that threat.
Her Honour noted that s 55 of the Evidence Act 2008 establishes that relevant evidence is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue; and that s 137 of the Act obliges the court in a criminal trial to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. She then said:[7]
What happened between the deceased and accused inside the house is relevant context for what subsequently happened outside, where, on the third formulation of the prosecution case, the fatal wound was inflicted. However, on the third formulation of the prosecution case the details of the prior police hypothesis as to the accused’s use of a knife during the altercation inside must be irrelevant, as they result from a theory that the prosecution has now abandoned. This includes the probing questions (imbued as they are with the disbelief of the accused’s version) as to how the accused got the knife from the deceased, whether the third person (Lentjes) was present to witness the entire inside interaction, and whether the accused lashed out at the deceased with the knife at that time.
In short, the accused’s version of events is now the prosecution version, save as to the necessity for and reasonableness of his actions. The prosecution now disavows that the accused behaved aggressively towards the deceased inside the house. The introduction of any material to suggest that he had can only be significantly detrimental to the accused’s case that the deceased sustained all the injuries during the second armed attack initiated by him that day when the accused managed to turn the knife as he was fighting for his life.
It follows that questions 462 to 576 are both irrelevant and prejudicial.
Given that the accused’s detailed and repeated statements of matters relevant to his perception of threat permeate his answers to those questions, a further issue arises as to whether the questions and answers can be edited to remove the spectre of the first formulation of the prosecution case.
In my view, they cannot.
[7]Ruling, [99]–[103].
The judge noted that in the course of the record of interview the respondent twice referred to the CCTV footage, asserting that it would ‘exonerate’ him and show that he was not lying. In response to the respondent’s assertions that the CCTV footage would show that he was not lying, the informant twice took the respondent back to a discussion of what happened inside of the unit. The informant said, ‘that’s why I’m asking you questions about what occurred inside the unit’, the suggestion being that although the respondent may not be lying about what occurred in the driveway, he was lying about what occurred inside.[8]
[8]Ruling, [104].
Her Honour also noted that, the informant told the respondent that the focus would first be on the inside of the house, and that ‘out of fairness’ the relevant events would be discussed ‘piece by piece’. Contrary to the informant’s assurance that the events would be examined sequentially, however, the respondent’s questioning did not follow a logical, chronological and complete path. Thus, the informant’s questioning in the relevant part of the interview did not proceed beyond what happened inside. The informant failed completely to ask any question about what occurred in the driveway. In her Honour’s view, ‘even if these questions could be edited, there is an imbalanced focus on what is (now) uncontested evidence and an absence of focus on the real issues’.[9] Thus, so the judge found, ‘there is significant unfair prejudice’ to the respondent, and it ‘follows that questions 462 to 576 inclusive of the record of interview will be excluded’.[10] The ‘issue then becomes’, the judge said, ‘whether the [respondent] can receive a fair trial if only the remainder of the interview is led’.[11]
[9]Ruling, [105].
[10]Ruling, [106].
[11]Ruling, [107].
The judge noted that, throughout the questions and answers she had excluded (questions 462 to 576), the respondent made many statements relevant to the issue of self-defence that do not appear in the earlier part of the interview, including that: when the respondent was sitting in the car and was trying to leave, Mr Bury ‘meant business’; the respondent turned the knife around because Mr Bury was trying to get it into him; Mr Bury wanted to kill him; the respondent was defending himself the whole time; the respondent wanted to leave but Mr Bury would not let him go; and the respondent could do nothing else when Mr Bury was coming at him with a knife.[12] Her Honour also noted that a further difficulty was that, when the respondent was given a final opportunity to answer the charge, the notion that the police did not believe that the fatal blow occurred outside the unit cannot be disentangled from the respondent’s responses, further depriving the respondent ‘of the opportunity of the jury hearing his willingly given, consistent version of events’.[13] The judge then stated her conclusion:[14]
In my view, this is a fundamental defect going to the root of the trial.
[12]Ruling, [109].
[13]Ruling, [112].
[14]Ruling, [113].
Next, the judge turned to consider whether the identified prejudice was irremediable.
Her Honour observed that the respondent had chosen to speak to the police — and admitted inflicting the fatal wound — but, through ‘no fault of his own, he now cannot rely upon the many exculpatory statements he made during that process’. As already noted, the respondent also admitted inflicting the fatal wound.[15] Since the prosecution had changed its case, however, the manner in which the respondent’s statements had been obtained meant that they could not now be led ‘without unfair prejudice’.[16] The judge thought that the only potential remedy for the prejudice of the respondent losing the ability to rely upon these statements would be for him to give evidence at trial, raising the issue of an accused person’s right to silence.[17] Her Honour then considered whether the prejudice could be overcome; decided that it could not be; and, as a result, ordered a stay:[18]
The question then is whether there is any remedy within my power as the trial judge to overcome this prejudice. There is not.
It follows that the trial must be stayed on this ground.
[15]Ruling, [115].
[16]Ruling, [119].
[17]Ruling, [120].
[18]Ruling, [122]–[123].
Having then dealt with other aspects — including blood spatter analysis, the committal, and the sufficiency of particulars — which we need not consider, the judge turned attention to arguments that to permit the trial to continue would be to undermine the due administration of justice.
Her Honour noted that for five reasons the respondent had submitted that the manner in which the prosecution had changed its case on two occasions (and late) showed ‘an improper regard for the evidential basis of the allegation of murder and demonstrates nothing more than an opportunistic attempt to keep the case afloat’.[19] The five reasons advanced were, first, that the change in the prosecution case had not been prompted by new evidence, but rather by a realisation that the first formulation was untenable and that the second formulation was stayed;[20] secondly, the changes to the prosecution case occurred very late;[21] thirdly, the respondent had been deprived of the significant benefit of a committal hearing to challenge the second and third formulations of the prosecution case;[22] fourthly, the respondent spent about a year in custody after his arrest;[23] and, fifthly, these matters in combination undermine confidence in the administration of justice.[24] The prosecution, it was contended, had ‘acted inconsistently and without fair regard for its evidence in a manner that is unfair and oppressive to the [respondent]’.[25]
[19]Ruling, [164].
[20]Ruling, [166].
[21]Ruling, [168].
[22]Ruling, [169].
[23]Ruling, [170].
[24]Ruling, [171].
[25]Ibid.
In considering this submission concerning the administration of justice, the judge observed that whilst there generally is no reason why the prosecution cannot undertake a reconsideration of the basis upon which a charge is put — even filing over a new indictment during trial — any change resulting from such reconsideration ‘should be communicated both clearly and in a timely fashion to the defence and the Court’. That was not done in this case. Further, if the prosecution seeks to effect a significant change to the nature of its case, it is incumbent upon the prosecution ‘to consider the likely impact upon the accused and the administration of justice’.[26] The extremely late amendment of the prosecution case, the judge said, was ‘a total reversal’,[27] and that[28]
it is oppressive and unfair to the accused to now have to meet an allegation the exact opposite of that which the Crown had maintained throughout the entire investigation and prosecution of this matter, until the very last minute. The prosecution of this matter in the circumstances does therefore undermine confidence in the administration of justice.
[26]Ruling, [181].
[27]Ruling, [182].
[28]Ruling, [183].
The judge also acknowledged that a ‘further consideration’ is of the lost opportunity for the respondent to rely upon the cross-examination at committal,[29] and said:[30]
But I need not decide whether the impact of the prosecutorial conduct upon the administration of justice is of itself grounds to stay the trial. As I have already stated, the fact that the accused is significantly denied the benefit of his voluntary, repeated and detailed explanation of self-defence in the record of interview by the conduct of the Crown amounts, in the whole of the circumstances, to irremediable unfair prejudice. At the same time, that conclusion is part but not the whole of the basis for finding that the administration of justice has not been well served by the Crown in this matter.
[29]Ruling, [183].
[30]Ruling, [185].
Her Honour expressed her ultimate conclusions as follows:[31]
In this matter the late reversal of the Crown case as to where and when the deceased was fatally injured has produced a fundamental defect going to the root of the trial which is irremediable. That defect is the inability of the accused to rely upon his many ‘first opportunity’ exculpatory statements in the record of interview. It is unacceptably unfair that he cannot. And, no ‘first opportunity’ to answer the currently formulated allegations was given to the accused. It is no remedy that the accused could elect to give evidence. And, even if he did, it would only be a partial and inadequate remedy. The first opportunity to respond to accusations exists but once.
And, the conduct of the Crown in this matter has, both with respect to the evidentiary value of the record of interview and otherwise, undermined confidence in the due administration of justice.
The trial of the accused is permanently stayed.
[31]Ruling, [186]–[188].
The Director’s submissions in this Court
Seeking to have the interlocutory decision set aside, counsel for the Director submitted that the central issue is self-defence. The answers given in answer to the impugned questions were highly probative in relation to that central issue. Counsel submitted that her Honour did not, however, properly engage with the issue of relevance, or the issue of whether the probative value of the evidence was outweighed by the risk of unfair prejudice. Instead, the judge leapt over those issues, and proceeded directly to the issue of the reformulation of the prosecution case, concluding that the reformulation created a prejudice which went to the root of the trial. In so doing, her Honour erred.
The Director’s counsel submitted that a permanent stay is to be ordered only in an extreme case where there is a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. It was contended that the change in the prosecution case did not render the impugned questions and answers from the record of interview irrelevant; and there was nothing in those questions and answers that was unfairly prejudicial, thereby justifying their exclusion. The questions and answers were admissible. Therefore, so counsel contended, the decision to order a stay, based as it was on the premise the interview was not admissible, was wrong.
There were, counsel submitted, alternatives to staying the trial could it be concluded that the relevant questions and answers were the source of prejudice. Thus, certain questions and answers could be edited out, or evidence could be elicited through cross-examination of the informant concerning the respondent’s exculpatory statements. Furthermore, as senior counsel for the Director expressly conceded in oral argument, the prosecution could not resist the giving of judicial directions aimed at redressing any perceived forensic disadvantage to the defence flowing from the manner in which the informant conducted the interview, and the manner in which the prosecution had seen fit to reformulate its case.
The respondent’s submissions in this Court
On the respondent’s behalf it was argued that the impugned questions and answers from the record of interview were inadmissible because the questioning ‘expressly and implicitly’ suggested that the deceased’s injuries were inflicted inside the house, which was no longer the prosecution case. They were therefore irrelevant and prejudicial and could not be edited.
It was submitted that, even if the relevant questions and answers could be edited, since the questioning during this portion of the interview (where the respondent’s account was challenged) never got beyond what happened inside, there was ‘an imbalanced focus on what occurred inside and an absence of focus on what were the real issues of the current prosecution case regarding what occurred outside’. The change in the prosecution case therefore occasioned significant unfair prejudice in that it did not allow the respondent to explain what occurred in the driveway at the time the injuries were inflicted. Moreover, the exclusion of the relevant questions and answers meant that the respondent was robbed of the opportunity to rely on what the judge described as ‘voluntarily given, repeated, detailed and impassioned statements centrally relevant to the issue of self-defence’. So much was, it was submitted, a fundamental defect going to the root of the trial.
Finally, it was submitted in writing that it is the duty of a trial judge to ensure that only fair trials are had. Courts have long recognised that justice must not only be done, but it must be seen to be done. Not only can justice not be done in this case due to irremediable prejudice, but it cannot be seen to be done.
Principles
On an application for leave to appeal against an interlocutory decision, the Court may grant leave to appeal if satisfied that ‘it is in the interests of justice to do so’ having regard to a number of criteria.[32]
[32]CPA, s 297(1)(b)(i).
Since the power to order a stay is discretionary, this Court’s intervention is warranted only if the applicant is able to demonstrate that the grant of the stay was not reasonably open to the trial judge in the sound exercise of that discretion. Leave to appeal may only be granted, therefore, if the Court is satisfied that the trial judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or if the judge’s decision was unreasonable or plainly unjust.[33]
[33]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See also KJM v The Queen (No 2) (2011) 33 VR 11, 12–13 [9]–[14]; Singh v The Queen (2011) 33 VR 1, 6–7 [26] (Almond AJA, Buchanan and Bongiorno JJA agreeing); DPP v Marijancevic (2011) 33 VR 440, 444–5 [13]–[16].
It is well settled that a court should stay an indictment if, having regard to all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[34] To justify a permanent stay the circumstances must be exceptional.[35] There must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.[36] To obtain a stay, an accused person must demonstrate that the circumstances are such that any trial necessarily will be unfair, so that a conviction would bring the administration of justice into disrepute.[37]
[34]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ). See also Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’); R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237; R v Edwards (2009) 255 ALR 399 (‘Edwards’).
[35]Williams v Spautz (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Jago.
[36]Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); Jago, 34 (Mason CJ).
[37]Jago, 34 (Mason CJ).
With those principles in mind, we turn to consider the judge’s ruling.
Consideration
With respect, we cannot agree that the impugned questions and answers in the record of interview (questions 462 to 576) are irrelevant. Indeed, we consider that they are highly relevant to self-defence, the principal fact in issue in the case.
The fact that the prosecution now contends that all of the deceased’s injuries were sustained in the course of a physical ‘tussle’ between him and the respondent outside in the driveway of the deceased’s home, does not render what occurred inside irrelevant. Indeed, we consider the opposite to be true.
To return to basics, relevant evidence in a proceeding ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.[38] The facts in issue in a criminal proceeding are those which establish the elements of the offence.[39] Thus, as has been said, the principal fact in issue in this case is whether the act causing death was unlawful, in the sense that it was not done in self-defence.[40]
[38]Evidence Act 2008, s 55(1).
[39]Hughes v The Queen (2017) 263 CLR 338, 348–9 [16] (Kiefel CJ, Bell, Keane and Edelman JJ).
[40]See Crimes Act 1958, s 322K.
Quite plainly, the physical interaction between the respondent and Mr Bury outside the deceased’s premises in the driveway cannot logically be decoupled from the events that occurred inside (in particular, the circumstances in which the respondent came to suffer a knife injury to his chest).[41] Although there may have been a short temporal separation between the events inside and those outside, the two sets of events logically can only be viewed as part of a continuing episode, in which, so the evidence suggests, the first incident of physical aggression involving a bladed weapon (or weapons) was initiated by the deceased. Indeed, a compelling construction of the evidence is that Mr Bury procured knives inside the house and attacked the respondent — slashing, cutting or grazing his chest — and shortly afterward pursued his attack on the respondent outside while the respondent was trying to leave. (It might be regarded as telling that, rather than return inside to collect the car keys, the respondent attempted to start the vehicle by fusing the terminals.) We consider the fact that Mr Bury may have been the original aggressor inside the unit — inflicting a knife injury on the respondent and causing him to flee — and, after a short break, sought to continue his armed attack outside, bears directly on whether the respondent, during the ‘tussle’ in the driveway, believed that his conduct was necessary in self-defence; and, secondly, whether his conduct in the circumstances was a reasonable response.
[41]In an earlier ruling, in a paragraph beneath the heading An Unfolding Event or two Separate but Related Events?, the judge had observed:
Before turning to the legal issues, it seems to me that it is essential to understand the continuum of the interaction between the accused and the deceased. That matters because, as the Crown concedes, the perception of the accused of the threat he faced must necessarily be different as between when he was first approached and assaulted by the deceased and when the deceased renewed his attack, at a time when the accused had removed himself from the presence of the deceased, was in the process of trying to leave the premises entirely and the deceased had added an extra weapon to his arsenal. In some ways it is immaterial whether that continuum is characterised as a single unfolding event or two separate but related events. What matters is that it is accepted by both parties that the perception of threat by the accused and therefore the reasonableness of his response to that perceived threat are both to be judged in the differing circumstances as existed inside and outside the deceased’s house.
In that part of the record of interview which the judge has excluded as irrelevant, the respondent makes a number of statements that we consider to be highly relevant to the issue of self-defence. For example:
Q 476I’m talking about inside the unit.
AInside the unit I got stabbed – I’m like – I got my back to the – I got my– I’m on the computer and he’s going – he’s getting upset and angry and – and throwing little names at me and that. And I said, ‘Shut up, bitch. Bitch. Bitch.’
Q 477Mm.
AIt’s all I said, ‘Just shut the hell up, bitch. I just want to get this up,’ you know. Yeah, he’s gone round – ‘Don’t care. This is the wrong house to call me a bitch.’ He’s gone to the bloody – his kitchen thingo [sic], I know now it’s his kitchen drawer, and got out two carving knives – or, I don’t know if it was one or two of the – two. He got out two and – at that one – at that time. And he didn’t have a metal bar then. Now – which I – I think – I might be wrong, could be copper. I’ve – got a look at it as copper look, had a copper look to it. But, I don’t know, I might be wrong. And he’s got – oh, and that’s when he’s come walking back and I – I’ve turned around and he was at the drawer and I was in – I had me back to him, as I said. I got up and was, ‘What are you doing in’ – whatever. And still said – I called him a bitch. ‘What are you doing?’ Like, if you want to do punch – if you want – get on with it, let’s punch on, you know. Put those fucking things down. And, ‘You’re in the wrong house, you’re in the wrong house,’ he was saying, ‘You’re in the fucking wrong house and this is my house,’ so basically he was saying to me – I took it as he’s got law on his side. And he plunge – come running at me and plunged the fucking knife at me. Yeah, I can’t see meself [sic] just standing there but I can’t remember jumping either, but – and I think I did. I had to have. I don’t know. I can’t – but you see that all happened so fast ….
…
Q 479…
A… And I have – he – I – he’s come at me as I’ve gone around. I – he – he – oh, I managed to get it – I’ve gone for him, and I managed to get – after he’s done that I’ve stared down and I looked down. It’s just like I just don’t – I don’t know. I just – I – like, I don’t know what to say.
…
Q 511I’m not talk – you know, I’m not talking about the knife – I’m not talking about the chair, I’m talking about the knife. Did you use a knife at all to try and – – –
ANo, no. Not at all. I’m telling you right now, I didn’t – I don’t – I didn’t want to use it. I mean he – he’s – it’s a carving knife, you know what I mean? I – I mean that’s a – he – what – that – the fatal blow must – it’s happened when we were tussling out the front and he – he – and I don’t know where – I’m telling you right now I don’t know exactly what part it has – all I know is now it’s gone into his torso. And, obviously, if he’s passed on it’s gone into his torso. And it was – I managed to turn it around in his hand, right, and – I don’t know there’d be a fingerprint on it but it was the same knife that – his knives that he was using against me was what – one of those ones was what – – –
Q 512And that’s occurred outside?
A– – – was – outside.
Q 513Yep, OK.
AThat was – and he did not get – he wouldn’t have any other mark on him apart from that one, the fatal blow, and one – and one only, and we were tussling on the ground and I turned it around on him, because he was trying to get it into me. And that’s all there is to it. That’s how I remember it. You can’t keep throwing these questions at me because you’re confusing me. …
The questions and answers above must, of course, be seen in the context that the respondent had earlier said that Mr Bury had lashed out with a knife, trying to stab him in the heart, and had cut his chest.
In excluding questions 462 to 576, the judge took the view that, since ‘the prosecution now disavows that the [respondent] behaved aggressively towards the deceased inside the house’, the ‘introduction of any material to suggest that he had can only be significantly detrimental to the [respondent’s] case that the deceased sustained all the injuries during the second armed attack initiated by him that day when the [respondent] managed to turn the knife as he was fighting for his life’.[42] But we consider that there is little in the impugned questions and answers from which a jury could discern — to his prejudice — that the respondent realistically was the aggressor. His answers may suggest that he insulted Mr Bury ‘tit-for-tat’, but no reasonable juror would consider these verbal taunts to be of the same order of aggression as that offered by the deceased when he procured the knives (and certainly not as justifying a physical attack with bladed weapons). Moreover, the respondent’s invitation to Mr Bury to put the knives down so that they could ‘punch on’ would appear to be a reasonable response by an unarmed man to an armed aggressor. And no juror could conclude that to use a chair to fend off a knife-wielding attacker was other than a reasonable response in the circumstances.
[42]See [23] above.
In our view, rather than causing any prejudice to the respondent, the impugned questions and answers — read as a whole — tend to support his claim to self-defence. They are, we consider, relevant as highly probative of a fact in issue. In so far as the trial judge thought that they were irrelevant and prejudicial, she was in error. Since her views as to the admissibility of the impugned questions and answers influenced the decision to grant a stay, her Honour’s exercise of discretion miscarried.
Even if it be assumed, however, that the latest change in the prosecution case — which, notwithstanding disavowals to the contrary we take to be strategic — has occasioned some prejudice to the respondent, the prejudice is readily amenable to amelioration (if not complete nullification) by judicial direction. Contrary to the judge’s view, we consider that there is ample scope for any prejudice to the respondent to be mitigated by judicial direction. Senior counsel for the Director conceded in oral argument — correctly — that the prosecution would be unable to resist directions from the trial judge which informed the jury that the prosecution had changed its case more than once, instructing them of the forensic disadvantage thereby caused to the defence. Nor could the prosecution avoid a strong direction from the judge warning the jury of the unfair way in which the interview was conducted, and the resulting forensic disadvantage to the respondent. Moreover, we consider that a skilled forensic tactician in defence of the respondent would be able to capitalise immensely on the shifting sands of the prosecution case and its apparent disarray.
Finally, we observe that, although we consider the changes in the prosecution case — and the late stages at which they have been made — to be lamentable, we cannot see that they are such as to strike at the due administration of justice. It is regrettable that the prosecution have had several attempts to try and perfect a case against the respondent, but that cannot mean that to permit a trial to proceed in the face of those reformulations will be an affront to justice. The judge has abundant powers to ensure that a fair trial will be had.
Conclusion
For these reasons, leave to appeal will be granted; the appeal will be allowed; and the trial judge’s decision granting a stay will be set aside.
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