Director of Public Prosecutions v Kerr
[2013] VSC 749
•29 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0151
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRACEY KERR |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 21-24, 28 and 29 October 2013 | |
DATE OF RULING: | 29 October 2013 | |
CASE MAY BE CITED AS: | DPP v Kerr | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 749 | |
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CRIMINAL LAW – Murder – Evidence of accused’s prior convictions inadvertently led – Significance of evidence in this particular case – Application to discharge jury – Unacceptable risk of prejudice – Jury discharged without verdict
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC | Office of Public Prosecutions |
| For the Accused | Mr P Skehan Ms C Hollingworth | Victorian Aboriginal Legal Service |
HER HONOUR:
The defence has applied for a discharge of the jury on the basis that there is a high degree of need to discharge, because the jury have heard evidence that the accused, Tracey Kerr, has prior convictions, one of which is for violence.
Forensic psychologist, Ms Pamela Matthews, was the first witness to give evidence for the defence. Early in her evidence‑in‑chief, she said she had been provided with the hand‑up brief against Ms Kerr. Instead of controlling the way that potentially sensitive information was led, Mr Skehan simply asked Ms Matthews in an open-ended way what the contents of the brief were. She replied, “I’ve got ‑ they are listed in the report. I'll go through them. The hand‑up brief of evidence includes Ms Kerr’s prior convictions”[1], and she then went on to read from her report the remaining materials which had been provided to her.
[1]T361.
Ms Matthews was speaking loudly and clearly at the time, and I have no doubt that all members of the jury would have heard that Ms Kerr has prior convictions.
After her evidence‑in‑chief ended, I gave the jury their afternoon break. During the break I sought clarification from defence counsel that he had not intentionally led from the witness the fact that Ms Kerr had prior convictions. After defence counsel confirmed that the evidence had not been led intentionally, I sought confirmation from the prosecutor that he would not seek to explore the topic in cross‑examination. He provided that confirmation.
During the course of cross‑examination, the prosecutor asked Ms Matthews what would be the effect of alcohol on somebody who displayed some of the symptoms which Ms Matthews said the accused displayed. Ms Matthews answered: “It can be a disinhibitor; however, Ms Kerr has quite a long history of alcohol and substance abuse and her only other violent prior is in 1995.”[2]
[2]T387.
The prosecutor’s question had not invited Ms Matthews to answer in a way that mentioned Ms Kerr’s prior criminal history. She volunteered the information, presumably because she thought it would assist Ms Kerr.
As soon as Ms Matthews started to mention Ms Kerr’s long history of alcohol and substance abuse, both the prosecutor and I realised that there was a risk that Ms Matthews was going to mention Ms Kerr’s prior criminal history again. Accordingly, he and I both tried to interrupt Ms Matthews, to stop her from saying anything about the matter. Although we managed to speak over the last part of her answer, it was heard by all the barristers and court staff, and is likely to have been heard by at least some of the jurors. I think that we may have successfully blocked out the fact that her prior conviction for violence was in 1995, but that may not be so. The court reporters have picked up the whole answer for the transcript, no doubt after replaying the recording.
The prosecutor quite fairly conceded that I should proceed on the basis that at least some of the jury would have heard that Ms Kerr has a prior conviction for violence. The prosecutor submits that any prejudice to Ms Kerr could be cured by my giving a very strong direction to the jury to the effect that the Crown does not rely on any prior episode of violence by Ms Kerr, and the jury should put out of their heads and not speculate about anything they have heard about her prior convictions. The defence submits there is no direction that could adequately remove the potential prejudice to Ms Kerr.
It is necessary to consider how this evidence fits in with the rest of the case, in order to understand the possible significance of the evidence of prior convictions, including one for violence.
The two elements of the offence of murder which are in dispute in this case are causation and self‑defence. As far as self‑defence is concerned, the defence says that Ms Kerr stabbed the deceased because he tried to rape her, and she perceived that she needed to do what she did to defend herself. The defence says that given her personal background, together with the amount of alcohol she had consumed, the prosecution cannot prove that she did not believe it was necessary for her to do what she did to protect herself.
In so far as there may be some differences in the accounts given by Ms Kerr in her record of interview as to why she stabbed the deceased, the defence also seeks to explain that on the basis of her background and alcohol.
Until Ms Matthews gave the evidence about prior convictions, the general tenor of the evidence had been to portray Ms Kerr as someone who has been the victim of terrible sexual abuse in her childhood, and serious domestic violence and dysfunctional relationships in her adult life. Although evidence has been led that she can be loud and prone to using bad language when drunk, the overall flavour of the earlier evidence has been to portray her as a very damaged, vulnerable person. The prosecution has not sought to challenge the account given of the terrible abuse and violence she has suffered during her life.
When telling the police in her record of interview about some six or seven earlier occasions on which the deceased made unwelcome sexual advances towards her, Ms Kerr’s evidence was to the effect that she had been able to diffuse the situation with words. In essence, she said she would tell him to “cut it out”, to “stop it”, not to “press her buttons” or she would get angry. On each of the earlier occasions, she said he ceased his advances when she spoke to him.
Ms Kerr’s lengthy prior convictions go back to 1989. However, most of them are for shoplifting, driving offences or public order offences, and are completely irrelevant to the current charge. The only conviction for violence was a 1995 conviction for assault occasioning bodily harm. The circumstances of that offending are not known to me, but given that she was placed on a good behaviour bond, I infer that the offence was not of a serious nature.
Given Ms Kerr’s aboriginality, and her long history of alcohol and substance abuse, knowledge that she has “prior convictions” (even of an unspecified nature), one of which is for violence, may unfairly prejudice some jurors’ views of her, perhaps by feeding into subconscious, stereotypical prejudices about aboriginal people.
Until Ms Matthews gave the relevant evidence, there had been no evidence to suggest that Ms Kerr was a violent person, or a person with criminal convictions. There had been no evidence to suggest that she was anything other than the victim of some terrible experiences, which may explain what she perceived was happening and why she acted in the way she did.
In deciding whether or not to discharge the jury, I bear in mind that the test is one of necessity or a high degree of need, that there is no rigid rule to be adopted to govern decisions on an application to discharge a jury for an inadvertent and possibly prejudicial event that has occurred, and that slips can and do occur during trials.[3] Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.
[3]Crofts v The Queen (1996) CLR 427.
I accept that juries can and should be trusted to abide by judges’ directions, but it does not follow that every disclosure of prejudicial evidence can be cured merely by direction. Nor that a judge should not exercise the various discretions given to them during the course of the running of the trial in order to avoid a miscarriage of justice.
The decision in R v Halliday[4] represents the most recent Court of Appeal decision in this State on the question of discharging a jury which has inadvertently been advised of the accused’s prior convictions. There are, of course, some significant differences in the facts of Halliday and this case. In Halliday, during the course of the prosecution closing address, the jury were handed a copy of the presentment which had a list of the accused’s prior convictions attached at the back. The prior convictions included convictions for an assault, for breach of an intervention order and a firearms offence. The offending material was quickly retrieved, but only after it had been seen by at least one member of the jury.
[4][2009] VSCA 195
The Court of Appeal said that at least some of the convictions were significant and highly prejudicial. The case against Mr Halliday was a purely circumstantial one, and the victim’s body had not been discovered. It was an important part of the defence case that Mr Halliday be accepted by the jury as somebody who was not disposed to violence. In the circumstances, notwithstanding careful directions by the trial judge that the jury should put the convictions out of their mind, Mr Halliday had been deprived of the opportunity to have “his guilt or innocence … determined on the evidence admissible against him, and without his prior convictions having been disclosed.”[5]
[5]At [78].
True it is that in the present case, unlike in Halliday, the jury do not know the details of Ms Kerr’s prior convictions, save that one of them is for an unspecified act of violence. However, the evidence has otherwise been completely one way, in terms of portraying Ms Kerr as a vulnerable victim, who has often been on the receiving end of violence (including sexual violence) and who may, therefore, have overreacted to a perceived threat in this instance. It is a very important part of her defence of self-defence that she be portrayed in that particular light. And knowledge of her past criminal history may prejudice that portrayal, in a way that is not capable of curing by directions.
In this case, disclosure occurred on the fifth day of a relatively short trial, at the start of the defence case; that is considerably earlier than in Halliday, where disclosure occurred in closing addresses, at the end of a four-week trial. I am not suggesting that timing considerations should be determinative in such an application,[6] but I note that, after discharging the jury, it will be possible to recommence the trial in the relatively near future.
[6]R v Boland [1974] VR 849.
In the circumstances of this particular case, I am persuaded that there is a high degree of need to discharge the jury, because of the risk of unfair prejudice to Ms Kerr, and I propose to do so.
I will defer the formal publication of these reasons until after the completion of Ms Kerr’s retrial.
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