Director of Public Prosecutions v Lawson (Ruling No 1)
[2012] VSC 468
•15 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0071 of 2012
No. 0072 of 2012
No. 0073 of 2012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW LAWSON CAMERON SANDERSON BENJAMIN VIGO |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 11 October 2012 | |
DATE OF RULING: | 15 October 2012 | |
CASE MAY BE CITED AS: | DPP v Lawson & ors (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 468 | |
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CRIMINAL LAW -- Evidence -- Relevance – Prejudice.
CRIMINAL PROCEDURE -- View -- Assistance to jury to understand the evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Tinney SC with Ms N Warda | The Office of Public Prosecutions |
| For the accused Lawson | Mr I Hill QC with Ms R Shann | Tony Hargreaves and Partners |
| For the accused Sanderson | Mr M Tovey QC with Mr D Dann | |
| For the accused Vigo | Mr G Steward |
HIS HONOUR:
On Sunday 3 July 2011, the deceased man, Anthony William Dunning, was involved in an incident at the Crown Casino with several security and services officers employed by the casino. Three of those men are the accused in this case. Three more have, with the agreement of the prosecution, been given a separate trial with two of the three counts in that indictment relating to two patrons other than Dunning.
Following the incident on 3 July 2011, Anthony Dunning died on 7 July 2011 at the Alfred Hospital when he was removed from ventilation.
In this trial, the accused Matthew Scott Lawson and Cameron Paul Sanderson are charged with the manslaughter of Dunning. Benjamin Vigo is charged with assaulting him.
The trial is to commence shortly and there have been a number of submissions made by the parties on pre-trial issues, three of which require brief ruling. They are as follows.
Records of interview
Each of the three accused was interviewed by members of the Victoria Police Homicide Squad. In the case of the accused Lawson, he was interviewed on 25 July 2011. The interview began with the usual formalities and at question 25 when he was asked a question of substance the accused said he had prepared a statement which he was willing to read. He said he was not willing to say how that document came into existence. Apart from that, there were no other answers to questions.
In the case of Sanderson, he was also interviewed on 25 July 2011 and in this case Senior Detective Paul Rowe from the Homicide Squad was the interviewing officer. At question 12, Sanderson indicated that he had a statement that he had “made up” which described what happened on the night. He said he would not be prepared how that statement came to be made and no other questions were answered.
In the case of Benjamin Vigo, he was likewise interviewed on 25 July 2011 by Senior Detective Rowe from the Homicide Squad and he did answer questions about his position as a security officer and what his duties as a security officer were, which he said were roving the gaming floor, assessing patrons for intoxication and unacceptable behaviour. He then asked if he could read a statement which he was not permitted to do and upon making it clear that no further questions would be answered the interview was terminated.
These three records of interview are objected to. Each has argued that the interviews contain no probative evidence beyond what appears in the statements produced by the accused. In each case, the accused were asked whether they would be willing to answer further questions and they declined.
I am unable to see any probative value in the interviews being played, as opposed to the tender of the statements that they offered to the police at the time of the interview. The interviews demonstrate that each accused was asked whether they would answer questions and each, in the exercise of their legal right, said they would not do so. That is of no probative value and is unnecessary to put before the jury.
There was also some discussion about the fact that the solicitor for each accused is Mr Anthony Hargreaves. He was present at each of these interviews and, I assume, involved in assisting the accused to prepare their statements. The fact that each of the accused has the same solicitor is of no consequence so far as the jury is concerned. Mr Hargreaves is an experienced solicitor in criminal cases. If a difficulty were to arise which meant that he was no longer able to act for all three accused, that would be an issue I would have dealt with. I assume he understands the consequences of that happening. However, none of that is to do with the jury and, for them, it is in so way significant or relevant that he acts for all three men.
As I was about to deliver this ruling, Mr Tinney sought leave to make further submissions about the records of interview and also played two of them to the Court. His further submission was to the effect that these records of interview were conducted with conspicuous fairness and propriety by the police without inappropriate questions. That may well be. A playing of the interviews, he argued, would convey information to the jury that a mere tendering of the statements would not reveal because the jury would see the accused in possession of their statement and referring to it as their accounts of what happened. Asked by me what use could be made of the interviews over and above the contents of the statements themselves, my opinion of his submissions, with respect, was that no particular legitimate forensic purpose could be identified. On the other hand, the jury would see the accused declining to answer questions which would then, of course, require directions to the jury explaining that they were exercising their legal rights. None of this would assist the jury to resolve the issues they will be confronted with in this trial.
I therefore do not propose to permit the Crown to play the records of interview. They may instead produce through the relevant witness each of the three statements made by the accused.
A view
The prosecutor has applied for the jury to have a view of the scene at the Crown Casino. Mr Hill SC who appears on behalf of the accused Lawson has submitted that there should not be a view because there have been changes in the layout and also it would be misleading to conduct the view in circumstances where there was no crowd present as there was on the night of 3 July 2011.
What is sought by the prosecution is a “inspection” pursuant to s 53 of the Evidence Act 2008. Section 53 in particular provides:
(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following—
(a)whether the parties will be present;
(b)whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;
(c)the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time.
In my opinion it is unlikely that the inspection will assist the jury to understand the evidence or assist them in resolving issues of fact. It may be that on the information before me at present such an inspection will be misleading or confusing. Mr Hill asserts that the surroundings have changed. That remains an assertion not challenged by the prosecutor.
I can therefore see no good reason to have such a view. The incident which the Crown allege led to the death of the deceased man is captured on CCTV footage as are the actual surroundings.
The motion tracking footage
In this trial, a central piece of evidence is the footage taken from the CCTV system at the Crown Casino which records the bulk of the incident which the Crown allege led to the death of Mr Dunning. They have prepared a version of the CCTV footage which is designed to enable “motion tracking” to occur; that is, enabling each of the three accused to be highlighted by a disc in a slightly highlighted and different colour so that anyone watching the video understands which accused is performing which actions.
On behalf of the accused, objection is made to the use of that video on the basis that the motion tracking addition to the footage, by virtue of the highlighting, obscures the actions of the deceased. It is claimed that is significant because self defence is expected to be an issue in this case. However, the prosecution proposes to produce to the jury both a highlighted version and a plain version of the video from the CCTV. That in itself solves the issue raised on behalf of the accused.
Further, I have examined the motion tracking footage and in my opinion the highlighting does not obscure the actions of the deceased man. In all events, even if I were to be wrong about that, the jury will have access to a plain version of the CCTV footage to enable anything which may be obscured and which I have not noticed to be seen by the jury.
There is one further matter however. This footage contains a graphic depiction of Olivia Ferguson being thrown to the ground by the accused man Quoc Tran. As I endeavoured to make clear in discussion, I would not permit the jury to see this particular piece of footage because in my opinion its prejudicial effect far outweighs any probative value it may have. Therefore, whilst I will permit the Crown to play the motion tracking footage, I will not permit that particular portion of it to be played. As I understand it, Mr Hill on behalf of the accused Lawson, accepts that some depiction of the earlier incident is necessary in order to explain why the deceased changes his mind about leaving the premises. There is a particular view of the CCTV footage, labelled on OPP media as “SCEJ0307111012454E” which shows the incident from some distance away and is substantially less graphic. No counsel has raised any objection to this footage.
Other matters
There appeared to be some issue about whether or not a call to the 000 service should be played. I have listened to the call and as at present advised I cannot see what issue it would be relevant to. Mr Tinney has indicated that he has proposed to give further thought to the issue and will not open the content of the call to the jury at the start of the trial. I will therefore deal with this matter if and when it arises for resolution.
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