Director of Public Prosecutions v KT (Ruling 2)

[2025] VSC 398

IN THE SUPREME COURT OF VICTORIA  Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0120

DPP	Crown
v
KT	Accused

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2025
DATE OF RULING:	30 April 2025
CASE MAY BE CITED AS:	DPP v KT (Ruling 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 398

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CRIMINAL LAW — Evidence — Conduct of co‑offender in circumstances where prosecution do not rely on any type of complicity — Use that can be made of such conduct — Application by accused to limit the use of the evidence pursuant to s 136 of the Evidence Act 2008 (Vic) — Danger that jury might use the evidence in a way that is unfairly prejudicial to the accused — Use of evidence limited — Evidence Act 2008 (Vic) s 136; R v Bauer (a pseudonym) (2018) 266 CLR 56.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Churchill with Mr J Manning	Office of Public Prosecutions
For the Accused	Ms A Beech with Ms N Patel	Stary Norton Halphen

HER HONOUR:

Introduction

1. The accused, KT, is charged on indictment that on 13 January 2024 at Doncaster he murdered Ashley Gordon.  KT is also charged with two charges of aggravated burglary.

1. KT will plead not guilty to murder.  He intends to plead guilty to the two charges of aggravated burglary before the jury.

1. An overview of the prosecution and defence cases is set out in my earlier ruling.[1]  I will not repeat those summaries.  Very briefly, on the night of 12 January 2024, KT attended a party at WM’s house.  In the early hours of 13 January, it is alleged that KT left the party and committed two aggravated burglaries, in company, on the home of the deceased.  During the second of those aggravated burglaries, the deceased awoke and saw KT’s group, which included AG and LJ, leaving his house.  The deceased got into his Mercedes and pursued the group.  KT, AG and LJ entered a driveway area in an effort to escape from the deceased.  The deceased exited his vehicle and entered the driveway on foot.  AG and LJ jumped over an adjacent fence.  KT then stabbed and killed the deceased.

   [1]DPP v KT (Ruling 1) [2025] VSC 397.

1. It is not disputed that KT caused the death of the deceased by a conscious, voluntary and deliberate act.  It is disputed he intended to either kill the deceased or cause him really serious injury.  KT will also seek to rely on self‑defence.  At the close of the prosecution case, and assuming the evidence does not materially alter and no further evidence is called, the prosecution will submit that self‑defence should not be left for the jury’s consideration.

The evidence in dispute

1. This ruling concerns the use that the prosecution may make of the following pieces of evidence:

(a)   LJ will give evidence that after he jumped back over the fence into the driveway, the deceased was in front of his Mercedes on the roadway.  The accused was four or five metres down the footpath to the west.  AG was in the process of kicking the deceased to the face.  At the point of impact, the deceased was lying on his back but with his head and upper back slightly raised.  Following this kick, LJ saw the deceased’s eyes roll back and he stopped moving.

(b)  Once back at WM’s house, AG told others that he came back over the fence and kicked the deceased as hard as he could in the face.  AG said he saw the deceased’s eyes roll into the back of his head.

1. The evidence is not objected to.  LJ is a witness in the trial.  AG is not a witness in the trial, and the evidence set out at (b) will come from another witness, MN.  Prior to this statement, AG says that he and LJ jumped the fence and KT stayed in the driveway.  The deceased stated, ‘There’s no point fucking running now’ and then KT stabbed him three to four times.  As I have followed matters, the defence want this portion of what AG said to be led, and so the whole of his account is not objected to, despite it including otherwise inadmissible second‑hand hearsay.

Submissions of the parties

Defence submissions

1. Ms Beech submitted that AG’s conduct is disgraceful and violent. It would not be open for the jury to conclude that KT had asked, agreed or invited this conduct. It is not relevant to KT’s state of mind and cannot be attributed in any way to KT. Pursuant to s 136 of the Evidence Act 2008 (Vic) (‘Act’), the use the jury can make of the evidence should be limited. The jury should be directed that the conduct of AG forms part of the overall circumstances of what occurred on this night, but it is not relevant when assessing KT’s state of mind.

Prosecution submissions

1. Ms Churchill accepted that the prosecution are not relying on complicity, and the kick by AG cannot be attributed to KT.  In written submissions, the prosecution submitted:

The conduct is however capable of bearing upon the jury’s assessment of the overall circumstances of the physical altercation. For example, it is open to view [AG]’s conduct as entirely inconsistent with a response to assist the accused in defending himself, and instead consistent with an earlier assault upon the deceased and the accused’s subsequent confirmation that [AG] “finished off” what had occurred. That is not to suggest any basis of complicity between the accused and [AG], but rather to invite inferential reasoning when assessing the global circumstances of the conduct surrounding the assault upon the deceased. That is, it is a piece of evidence consistent with the prosecution case that the accused intended to cause the deceased really serious injury or death, and was not defending himself from death or really serious injury.

1. The reference to ‘finished off’ is a reference to what KT said after the incident when back at WM’s house.  KT explained what had occurred.  He said when the deceased caught up with them, he held up his knife and said he didn’t want to do it.  The deceased then tackled him and he yelled for help.  AG jumped back over the fence and appeared while the deceased and KT were on the ground.  The deceased got up, tried to chase them and tripped over.  AG then ‘pretty much finished him off’ with a flush kick to the deceased’s face.  Ms Churchill argued that what KT sees AG do is consistent with what KT intended, and in KT’s mind, AG is ’finishing off’ what he started.

Defence reply

1. In reply, Ms Beech submitted the prosecution is inviting the jury to reason backwards and in an impermissible way.  The comment is no more than a bare observation of what occurred afterwards. 

Section 136 and legal principles

1. Section 136 of the Act states:

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might —

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

1. Here, I am concerned with paragraph (a).  The power to limit the use of evidence arises where there is a danger that a particular use of the evidence might be unfairly prejudicial.  It is not necessary to find that the use would be unfairly prejudicial. The expression ‘unfairly prejudicial’ (or ‘unfair prejudice’) is used in ss 135(a), 136(a) and 137 of the Act. In R v Bauer (a pseudonym),[2] the High Court held that each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.[3]

   [2](2018) 266 CLR 56.

   [3]Ibid [73].

Consideration

1. The prosecution do not rely on complicity, and the acts of AG cannot be attributed in any way to KT.  Even if the prosecution were relying on complicity, there could be no attribution of mens rea between AG and KT.  In my view, the prosecution submission that this is ‘a piece of evidence consistent with their case that the accused intended to cause the deceased really serious injury or death, and was not acting in self‑defence’, seeks to merge the conduct of KT with that of AG.  Effectively, the prosecution would be inviting the jury to use the conduct of AG to assist them to draw a guilty inference as to KT’s state of mind.  Such a path of reasoning is unfair and impermissible.  What AG thought when KT yelled ‘Help’, or what AG intended when he kicked the deceased, has no relevance in the trial of KT.

1. Based on what KT is alleged to have told WM, KT witnessed the kick by AG.  However, the later comment by KT, namely that AG ‘pretty much finished off’ the deceased, cannot go in proof of what was in KT’s mind at the time he stabbed the deceased.  KT’s comment is no more than a statement of what he saw after he had moved away from the deceased.  According to LJ, at the time AG kicked the deceased, KT was four or five metres down the road and on the footpath.  KT’s attack on the deceased had ended.  If KT was defending himself, that defence had also concluded.  A jury cannot lawfully use the conduct of AG to draw any inference or conclusion as to what was in KT’s mind at the time he stabbed the deceased.  They must not be invited to reason in such a way.

1. In my view, if the use of the evidence is not limited, there is a danger the jury will reason in this improper way, even if they are not invited by the prosecution to do so.  The risk is increased by the fact that KT and AG were both involved in the two aggravated burglaries, and they engaged in much of the post‑offence conduct together.  There is a risk a jury will view them as a ‘team’, and undirected, a jury may unfairly use the acts of AG against KT.

Conclusion

1. A s 136 limitation direction will be given. The jury will be directed regarding the permissible and impermissible use of the evidence. The prosecution must not invite the jury to reason, directly or indirectly, that the kick by AG may be used by them as a piece of circumstantial evidence that is relevant to an assessment of KT’s state of mind at the time he stabbed the deceased. The jury will be directed in the way outlined by Ms Beech. That is, the evidence that AG kicked the deceased to the face has been led by the prosecution because it forms part of the overall events of this night. However, at the time AG kicked the deceased, whatever had occurred between the accused and the deceased was over. According to LJ, the accused was four or five meters down the road. There is no evidence the accused requested AG to kick the deceased, or knew AG would do that, and the prosecution do not suggest otherwise. They must not use AG’s conduct when considering what was in the mind of the accused.

1. The precise terms of the direction sought, and the timing of the direction, can be discussed prior to the evidence being adduced.[4]

   [4]In Ainsworth v Burden [2005] NSWCA 174, [103] the NSW Court of Appeal stated that when s 136 is enlivened to restrict the particular use of evidence because of the risk of unfair prejudice, a ‘strong direction’ to the jury would be needed both at the time the evidence is tendered and in the summing‑up. See also Jury Directions Act 2015 (Vic) s 26(d) (misconduct evidence) and s 10(2) (giving of necessary directions at any time before the close of all evidence).