Director of Public Prosecutions v Marc Lamb (a pseudonym)[1]
[2015] VSCA 307
•17 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0216
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| MARC LAMB (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the Respondents.
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| JUDGES: | PRIEST, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 November 2015 |
| DATE OF JUDGMENT: | 17 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 307 |
| RULING APPEALED FROM: | DPP v [Lamb] (Unreported, Supreme Court of Victoria, Lasry J, 26 May 2015) |
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CRIMINAL LAW – Interlocutory appeal – Indictment charging respondent with recklessly causing injury and manslaughter – Evidence on each charge not cross-admissible – Severance ordered – Whether severance justified – Criminal Procedure Act 2008, s 193.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S M K Borg with Mr P P Kounnas | Solicitor for Public Prosecutions |
| For the Respondent | Mr C B Boyce SC with Mr J R V Kelly | Leanne Warren & Associates |
THE COURT:
Introduction
An indictment filed in the Supreme Court charges the respondent with recklessly causing serious injury to an infant on 8 December 2004 (charge 1), and with the manslaughter of the same child on 17 December 2004 (charge 2).[2]
[2]The injuries that led to death were sustained on 11 or 12 December 2004, but the child died on 17 December 2004.
Upon application by the respondent’s counsel, on 9 November 2015 the trial judge severed the indictment (‘the ruling’ or ‘the interlocutory decision’). When asked by the prosecution to certify pursuant to s 295(3) of the Criminal Procedure Act 2009 (‘CPA’), the judge refused.
Pursuant to s 296 of the CPA, the applicant seeks to review the judge’s refusal to certify, and leave to appeal against the interlocutory decision. The putative ground of appeal is:
The trial judge erred in severing the trial indictment resulting in separate trials in respect of charge 1 and charge 2, on the basis that, directions to the jury would not cure the prejudice flowing from the joinder.
In our view, given the manner in which the prosecution has chosen to formulate its case, the ruling which the Director seeks to call into question in this application is unimpeachable. Both applications to this Court must accordingly be refused.
It is necessary that we briefly state our reasons.
The prosecution case
A convenient starting point is an examination of the prosecution case since, as we have indicated, based on the manner in which the Crown case is put, the judge’s ruling is undoubtedly correct.
‘KRC’ (as, for convenience, we shall refer to the infant victim) was born on 20 December 2003. Her mother, ‘JMR’, and her father separated about five months later.
On or about 20 November 2004, JMR and KRC moved into a house with the respondent. JMR had known the respondent for about six months. They developed a romantic relationship.
When alone with the respondent and in his care on 8 December 2004, KRC sustained several injuries, including bruising to her face and a broken right humerus (charge 1). A few days later, either in the late hours of 11 December or early hours of 12 December 2004, KRC sustained further injuries when again she was in the respondent’s care. The most serious of the injuries were two subdural haematomas. Despite surgical intervention, the child died from the effects of the closed head injuries on 17 December 2004.
Professor Stephen Cordner carried out a post mortem examination of the child on 18 December 2004. A number of bruises were observed on the child, and she had a broken right humerus. Professor Cordner observed:
The number and distribution of these bruises is such that they represent non-accidental injury. [KRC] was a ‘battered baby’. In the absence of some plausible accidental account, the fractured humerus also forms part of this constellation.
[KRC] has also sustained a head injury. … The head injury could be the result of blunt impact, and/or a shaking type injury. …
Importantly, although originally having filed a notice pursuant to s 98 of the Evidence Act 2008, the prosecution has expressly eschewed any reliance of the incidents founding charge 1, recklessly causing serious injury, as coincidence evidence under s 98 of Act going in proof of charge 2, manslaughter. Moreover, the prosecution does not suggest that the evidence is tendency evidence for the purposes of s 97 of the Act. Indeed, so far as the charge of manslaughter is concerned, the prosecution seeks to rely on the injuries caused to the child on 8 December 2004 solely as relevant to the issue of dangerousness.
It was made clear to the trial judge that the prosecution case for manslaughter is by way of unlawful and dangerous act, the unlawful act being an assault on the child which caused her brain injury. The prosecution’s position was encapsulated in written submissions made to the trial judge:
The Crown puts its case for manslaughter as being one by unlawful and dangerous act. The unlawful act being an assault against the child occasioning injury (to the brain). The dangerous aspect to the act is the context where the child is not only an infant (just shy of 12 months old) but had already been injured. Given the [respondent] was the one that injured her, the [respondent] knew that the victim was particularly vulnerable when he assaulted her on the second occasion.
This knowledge is relevant to the consideration of whether ‘a reasonable person in the position of the accused, performing that act, would have realised that he or she was exposing the victim to an appreciable risk of serious injury’.
It was further submitted that:
… even if the charges were severed, the Crown would still be entitled to lead the evidence of the previous injury in proving the charge of manslaughter.
In oral submissions, the prosecutor — in answer to a query from the trial judge — made it abundantly clear that the prosecution did not suggest that there was cross-admissibility. She said:[3]
… So the Crown’s not saying the evidence from the first is cross‑admissible in regard to the second charge. When I said to Your Honour the first charge informs the second charge, that only goes to the question of dangerousness so I will get to that in a moment, but the short answer to Your Honour’s question is it’s not a cross‑admissibility consideration, it’s simply a joinder argument.
[3]Emphasis added.
It was in the context of the Crown case thus framed that the trial judge was called upon to decide the issue of severance.
The judge’s ruling
The judge observed that — save for the issue of dangerousness — the prosecution had made it plain that it was not contended that the evidence on charge 1 was cross-admissible. A little later, his Honour went on to say:[4]
It is clear enough that just because the evidence on Charge 1 is inadmissible on Charge 2 does not determine the question of severance. I am required to consider the prejudice to the accused which will arise and assess whether that prejudice can be removed by an appropriate direction of the jury on misuse of evidence on one count in proof of another. As [the prosecutor] has submitted it is usually to be assumed that the jury will faithfully comply with any directions they are given by the trial judge.
When considering whether or not severance should be ordered, fairness to the accused and also to the prosecution and its witnesses should be considered. It is true that a balance should be struck between the interests of the accused in avoiding prejudice due to the jury hearing evidence related to other charges, on the one hand, and the public interest in the efficient allocation of judicial resources, consistency of verdicts, convenience of witnesses, and finality of litigation on the other.
Prejudice occurs when there is a danger that evidence admissible on one charge but inadmissible on another will be used impermissibly by the jury as corroborating the latter count.
[4]Emphasis added.
The judge then cited from TJB,[5] and observed further:[6]
This of course will be an extremely emotional trial. There’s already been some foreshadowing of the cautions that should be made to the jury in relation to the consideration of the evidence bearing in mind the emotional nature of the evidence. I assume that a jury would, if confronted with both charges in the indictment, deal with the matters chronologically. That seems to be me to be the most sensible way in which a jury would approach the issue.
In my opinion if a jury had resolved to conclude guilt on Charge 1, the central issue in the case being whether or not it was the accused who inflicted the injuries, and then turn to consider the issue on Charge 2 where that same central issue arose, but where the evidence on Charge 1 was not admissible on the later charge, there is a very significant risk that the evidence supporting Charge 1 would be misused regardless of judicial direction.
With some reluctance, but nonetheless, clearly I have come to the view, bearing in mind that this will result in not one but two trials, that the risk of misuse of that evidence is unacceptable, and I do propose to sever the indictment as requested on behalf of the accused.
[5]R v TJB [1998] 4 VR 621, 630 [60] (Callaway JA).
[6]Emphasis added.
Although the judge’s reasoning must be divined from his ruling, in our estimation the following exchange in the course of the application for severance is illuminating:
HIS HONOUR: It may be that the evidence of the first injury is admissible without going the second step of an assertion that that was caused by the accused.
[PROSECUTOR]: Well, the submission that the Crown would be entitled, it’s not seeking to usurp what Your Honour’s role is, but that’s the legal argument that even if severance severing the two charges, if I could put it another way, is with respect
HIS HONOUR: There’s no point in severing the charges if it’s permissible for the Crown to lead the evidence of the injury and the allegation that the injury was caused by the accused.
[PROSECUTOR]: That’s the point.
HIS HONOUR: So if the charges are to be severed that evidence can’t get in, can it?
[PROSECUTOR]: No.
HIS HONOUR: It may be that the fact that the child was injured can get in and that he knew the child was injured without going the next step of asserting that he actually caused the injury. The jury would have to be told that they shouldn’t speculate as to how that injury was sustained.
[PROSECUTOR]: But then they are left with an unrealistic context. Information is not being provided to them which is relevant, the Crown says, to the second assault. In fact it would lead them to speculate. Despite the fact Your Honour would say don’t speculate, it still leaves a huge question mark over who injured the child on the first occasion.
…
HIS HONOUR: Just pausing there for a moment. If both charges were before the jury, it’s entirely feasible, isn’t it, that the jury could, for example, find the accused not guilty of one but guilty of the other?
[PROSECUTOR]: Well, yes.
HIS HONOUR: Let’s assume that both charges are before the jury and the jury conclude guilt on Charge 1, that is that the injuries, including the broken arm, were caused by the accused in circumstances where the evidence is not admissible on Charge 2, and they then turn to consider Charge 2. Do you really submit that the jury could put out of their mind their conclusion on Charge 1 for the purpose of considering Charge 2?
[PROSECUTOR]: To the extent that the jury would not be entitled to take into account anything in Charge 1 ---
HIS HONOUR: I know they wouldn’t, and that’s what I would tell them, but judicial direction has its limits.
[PROSECUTOR]: I understand that. But ---
HIS HONOUR: And if they had concluded that the accused had caused the injuries leading to the basis of Charge 1, realistically, how do they put that out of their mind for the purpose of considering Charge 2?
[PROSECUTOR]: They have to at least put it out of their mind to the extent where they make a decision as to whether or not the accused committed the second assault on the child.
The applicant’s contentions in this Court
In this Court, the applicant submitted that the prosecution ‘does not concede that the jury would be so overcome by strong emotion or revulsion that they would misuse the evidence despite a strong judicial direction’.
It was submitted that, despite severance, the case for manslaughter would still be conducted on the basis that KRC was injured on 8 December 2004 — presenting with bruises and a fractured humerus — and that the respondent knew of the existence of the child’s injuries. The jury would, however, not be informed as to how the injuries occurred, and would be told not to speculate as to how those injuries were sustained or who caused them. It was submitted that the direction not to speculate is insufficient and ‘does not constitute a proper direction’. As a result, there is an unacceptable risk that the jury will misuse the evidence by embarking on two ‘unsatisfactory’ lines of reasoning.
As set out in the written contentions, the applicant described the first line of reasoning as follows:
The jury could speculate that the [respondent] did not commit the first [assault] otherwise there would be a charge in relation to that assault. The logical implication of this is that there must be another perpetrator who assaulted the child in the first instance. If the jury form the view that someone other than the accused had access to and committed the first assault, then the jury could also reason that that same person may have assaulted the child on the second occasion (the manslaughter). This is despite the Crown having circumstantial evidence that the accused is the alleged perpetrator of the first assault. This reasoning is an impermissible use of the evidence.
The second line of reasoning was summarised as follows:
The short time frame for the first assault (between 12.15am and 1am on 8 December 2004) necessitates that it is either the mother of the child or the [respondent] that inflicted the injuries to the child. The Crown’s case is that the mother did not commit the first assault. If the jury accepts the Crown’s contention that the mother did not commit the first assault, by accepting the mother’s evidence, then the jury could go on to reason that the accused (being the only other person who could have inflicted the injuries) may have in fact committed the first assault upon the child.
If the jury come to this conclusion, then there would be a risk of the very type of propensity reasoning that the trial judge ruled would be unfairly prejudicial to the accused if the indictment contained the two charges. In this situation the propensity reasoning could not be addressed (through judicial directions) because of the prohibition of dealing directly with the question of who committed the first assault. In these circumstances, if a conviction were secured for the charge of manslaughter, the risk of propensity reasoning by the jury without any judicial direction, may result in a successful appeal against conviction.
As we see it, in this Court there was a material shift from the way the arguments were advanced to the trial judge. The prosecution seemed to argue that the issue of who was responsible for the first set of injuries must inevitably arise in respect of the charge of manslaughter, since, if the prosecution does not exclude the only other potential culprit — the child’s mother, JMR — then it would be open to the jury to reason that JMR might have been responsible for the baby’s death. This argument was not, however, put to the trial judge.
Ultimately, the applicant contended that the danger of impermissible propensity reasoning, and the misuse of the evidence of the first assault, is far greater if severance is granted. It was pointed out that the defence to both charges is that someone other than the respondent committed the offences. The respondent will be able to test the evidence and will have the benefit of strong judicial direction as to the permissible (and impermissible) uses of the evidence. In the circumstances, any risk of unfair prejudice can be cured by judicial direction.
The respondents’ contentions
The respondent’s principal submission was that the evidence relating to the first charge is not admissible for the purposes contended for by the applicant. It is difficult to see, counsel submitted, how mere knowledge of the causation of the earlier injuries — which are different to, and not causative of, those the subject of the manslaughter charge — could rationally bear upon a reasonable person’s assessment of an appreciable risk of serious injury to the deceased child flowing from the act or acts foundational of charge 1.
Attention was drawn to the following exchange between the trial judge and prosecutor:[7]
[7]Emphasis added.
HIS HONOUR: The injuries causing the brain injury were either a shaking or a blunt force trauma to the head, aren’t they?
[PROSECUTOR]: Yes.
HIS HONOUR: I don’t mean to be flippant about this but what’s that got to do with an injury to the arm?
[PROSECUTOR]: Well, he already knew that she was injured.
HIS HONOUR: Right.
[PROSECUTOR]: Which made her even more vulnerable, so ---
HIS HONOUR: What’s the difference between striking a child to the head with a broken arm as opposed to striking the child to the head without a broken arm?
[PROSECUTOR]: Well, without knowing the exact mechanism the first assault must have been less serious than the second assault to result in a child favouring its arm, even if the person
HIS HONOUR: There’s no causal link between the first incident and the death of the child, is there?
[PROSECUTOR]: No. What the Crown asserts though in terms of the severity, that the accused would have known, after having shaken the child on the first occasion, that that level of force would create a certain type of injury, being bruising and the favouring of an arm. So for the brain injury to occur the amount of force must have been greater. And given that the child was already vulnerable he would have known a greater amount of force would not only have put her at risk of a serious injury, but would compound previous injuries.
HIS HONOUR: I’m sorry, I don’t follow that.
Analysis
Clause 5 of Schedule 1 of the CPA provides that an indictment ‘may contain charges for related offences, whether against the same accused or different accused’. By virtue of s 3(1), ‘related offences’ are ‘offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character’.
If an indictment contains more than one charge, the charges must be heard together unless (for present purposes) an order is made under s 193(3). Where an indictment contains more than one charge, under s 193(3) the court ‘may order that any one or more of the charges be tried separately’, if the court considers that ‘the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment’, or ‘for any other reason it is appropriate to do so’.
In Cogley,[8] the applicant was charged in the one presentment with intentionally causing serious injury (count 1) and murder (count 2). He was found guilty of both charges. On the first count, the applicant had shot the victim in the leg. Count 2 related to an incident ten days later, when the applicant shot the victim, a man by the name of Kevin Hitchens, in the head. The defence to count 1 was that the shooting was accidental in the course of a struggle among a number of people, including the applicant, but that the applicant did not fire the gun. On the murder charge, the defence was that the victim committed suicide by shooting himself. Against the background of a legislative regime materially no different to that presently applicable, Buchanan JA (with whom Brooking and Tadgell JJA agreed) observed:[9]
Rule 2 of the Presentment Rules permits joinder of charges in one presentment ‘if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character’. Two offences may constitute a ‘series’ within the meaning of the rule. In order for a number of offences to be a series of offences of a similar character, there must be some nexus between the offences, that is, elements of similarity which in all the circumstances of the case enable the offences to be described as a series. Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Kray [1970] 1 QB 125; R v Wright and Haigh [1983] 1 VR 65. In R v Kray Widgery LJ, delivering the judgment of the court said at 131:
All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together.
… The rule is not limited to cases where the evidence upon one charge is admissible upon the other or others. See R v Kray at 131; Ludlow v Metropolitan Police Commissioner at 39; R v McGlinchey (1983) 78 Cr App R 282; R v Cannan (1990) 92 Cr App R 16. Whether the discretion to sever the counts [under the former equivalent to s 190(3] should have been exercised in my view depended principally upon whether the prejudicial effect of the jury hearing the evidence relating to both counts could have been countered by appropriate directions. If the counts were not to be severed, the evidence relating to count 1 could be used for the purposes of count 2 only as bearing on the provenance of the pistol. The evidence was of considerable importance in this regard for the plausibility of the applicant’s account of the circumstances in which Hitchens died depended to a large extent upon the gun being returned to Hitchens not being the gun of the applicant.
If the presentment was not to be severed notwithstanding that in general the evidence relating to one count was not admissible on the other, the jury should have been instructed to consider the evidence relating to each count only in determining that count and warned not to use the evidence relating to one count for the purposes of the other count. The jury should have been told that the only relevance to count 2 of the evidence on count 1 was that it showed the origin and possession of the gun. The jury should have been warned about using in any way the conclusion that the applicant was guilty on one count for the purposes of the other count, and specifically warned against reasoning that the applicant was guilty on one count because his guilt on the other count showed that he had a propensity to commit crimes of the type the subject matter of the counts.
[8]R v Cogley [1999] 3 VR 366.
[9]Ibid 373–4 [24]–[26] (emphasis added).
At the risk of repetition, in the instant case the prosecution did not contend before the trial judge that the evidence on the first charge is cross-admissible. It eschewed reliance on coincidence or tendency reasoning. The very limited basis upon which it claimed that the evidence relating to the circumstances of the first charge is admissible is that it may have some bearing on the respondent’s state of mind; and in particular, his appreciation of whether, on the occasion that led to death, a reasonable person in his position would have realised that he (or she) was exposing the victim to an appreciable risk of serious injury. As will become clear, however, we regard as unsustainable the prosecution’s argument that the evidence relating to the first charge might bear on the objective element of manslaughter.
It is important to recognise that, in order to establish the species of manslaughter charged in this case, the circumstances must be such that a reasonable person in the respondent’s position, performing the very act which the respondent performed, would have realised that he was exposing KRC to an appreciable risk of serious injury.[10] The test for the dangerous element is purely objective, not subjective. It will be necessary for the jury to determine whether the respondent’s act (or acts) carried with it (or them) an appreciable risk of serious injury to the deceased child judged from the perspective of a reasonable person.[11]
[10]R v Holzer [1968] VR 481, 482 (Smith J); Wilson v The Queen (1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ) (‘Wilson’).
[11]Wilson, 335.
Resorting to first principles, subject to exclusionary rules, evidence that is relevant is admissible;[12] and evidence that is irrelevant is inadmissible.[13] Relevant evidence 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.[14] In this case, the particular fact in issue that the impugned evidence is said to go to is the objective element of unlawful and dangerous act manslaughter charged in this case; that is, whether a reasonable person in the respondent’s position, performing the very act which the respondent performed, would have realised that he was exposing KRC to an appreciable risk of serious injury.
[12]Evidence Act 2008, s 56(1).
[13]Ibid s 56(2).
[14]Ibid s 55(1). See also R v Chee [1980] VR 303, 308; Director of Public Prosecutions v Kilbourne [1973] AC 729, 757; R v Stephenson [1976] VR 376, 380–1; Goldsmith v Sandilands (2002) 76 ALJR 1024, 1025 [2]; 190 ALR 370, 371; R v Priest (2002) 137 A Crim R 133, 140 [19]; R v Semaan (2013) 39 VR 503, 508 [28].
Simply as a matter of logic, it is clear, in our opinion, that the evidence relating to the first charge is irrelevant in proof of the purely objective element of manslaughter. The fact that the respondent had earlier caused injury to the child could have no bearing on whether a reasonable person in the position of the respondent at the time that the fatal injuries were caused would have realised that by his actions he was exposing the child to an appreciable risk of serious injury. Thus, based on the very narrow way in which the prosecution sought to rely on the evidence, the judge was correct to conclude that the evidence relating to the first charge was irrelevant in proof of the second.
It must be said that it is the manner in which the prosecution has determined to frame its case at trial that is the major source of difficulty in this case. As we have said, if the evidence relating to the first charge cannot go in proof of the objective element of the second charge, then it is irrelevant — and thus inadmissible — so far as the manslaughter charge is concerned.
If the evidence on the first charge is irrelevant to the second, in the absence of severance, the judge would need to give directions designed to try and cure the undoubted prejudice flowing to the respondent from the joinder of the charges. The judge would need to direct the jury to consider the evidence relating to each charge only in determining that charge. Further, the jury would need to be warned not to use the evidence relating to one charge for the purposes of the other. The jury would have to be told that they could not consider the evidence relating to the first charge in proof of the second, and that the evidence relating to the second charge was irrelevant to the first. Additionally, the jury would have to be warned about not using in any way the conclusion that the respondent was guilty on one charge for the purposes of the other charge. And finally, the jury would need specifically to be warned against reasoning that the respondent was guilty on one charge because his guilt on the other charge showed that he had a propensity to commit crimes of the type the subject matter of the charges.
Even the most conscientious jury, doing their best to adhere to judicial directions, would have very great difficulty in adhering faithfully to these instructions.
That being so, the live question becomes whether the prejudice to the respondent flowing from the joinder of the charges might acceptably be ameliorated by judicial direction. The trial judge held that, in circumstances where the evidence on charge 1 was not admissible on the later charge, there is a ‘very significant risk that the evidence supporting Charge 1 would be misused regardless of judicial direction’. Since ‘the risk of misuse of that evidence is unacceptable’, his Honour resolved to sever the indictment as sought by the respondent. Given the prosecution case that confronted him, the view that his Honour took was well open to him.
Based on the arguments that have thus far been made to the trial judge, no error has been demonstrated.
We make one final observation. As we have mentioned, the prosecution mounted an argument in this Court — not put to the trial judge — that, despite severance, it is inevitable that the evidence relating to the first charge will be admitted in the trial for manslaughter. Whether this is so or not — and we do not seek to express a view — is a matter for the trial judge after considered submission. The prosecution ought to advance the arguments at their disposal to the trial judge for his determination. In light of the way the submissions were put to the trial judge at first instance, however, it is not a matter proper for this Court to deal with. It needs to be understood that is not legitimate, as part of the interlocutory appeal process, for a party to agitate one argument before the trial judge and then another in this Court. As this Court has observed more than once, interlocutory appeals in criminal cases should — as is contemplated by s 297 of the CPA — be reserved only for those matters where there is a real dispute about the correctness of a ruling or decision that will have significant consequences for the trial. An interlocutory appeal does not present an opportunity to a party to have a ‘second bite at the cherry’ in this Court, by relying on an argument not put to, and not ruled upon by, the trial judge.
Conclusion
For the foregoing reasons, the application to review the trial judge’s refusal to certify, and, accordingly, the application for leave to appeal against the interlocutory decision, must both be refused.
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