Director of Public Prosecutions v McCartin (Ruling No 2)

[2022] VSC 765

IN THE SUPREME COURT OF VICTORIA Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0164
S ECR 2021 0165
S ECR 2021 0166
S ECR 2021 0167
S ECR 2021 0174

DIRECTOR OF PUBLIC PROSECUTIONS

v 

BENJAMIN McCARTIN

CANDICE HARPER

JAMIE HOLT

JACINDA BROWN

DALE MILLER

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2022
DATE OF RULING:	21 November 2022
CASE MAY BE CITED AS:	DPP v McCartin & Ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 765

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CRIMINAL LAW – Murder – Manslaughter – Evidence sought to be adduced by co-accused – Admissibility of evidence of knife in room of accused – Knife not used in incident leading to death of deceased – Whether evidence of probative value – Whether probative value substantially outweighed by prejudicial effect of evidence – Evidence not admitted – Evidence Act 2008 s 135.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Glynn and Ms D Manova	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused McCartin	Mr M McGrath and Mr M Sturges	Matthew White & Associates
For the Accused Harper	Mr A J Patton and Ms T Skvortsova	SLKQ Lawyers
For the Accused Holt	Mr R Backwell	Ann Valos Criminal Law
For the Accused Brown	Mr J Anderson and Ms K Mildenhall	Slades & Parsons
For the Accused Miller	Mr C Terry	Chris McLennan and Co

HIS HONOUR:

1. In this matter an issue has arisen concerning the admissibility of evidence that after the incident in which McCartin fatally stabbed the deceased man, Rowlands, the police, in a search conducted at the Ibis Hotel, found and located a knife in Room 548.  The evidence is that at the time of the incident, the accused, Holt and Harper, had access to and were using Rooms 332 and 548 of Ibis; and in the record of interview conducted with her by police, Ms Harper gave her address as Room 548. 

1. The knife that was found in Room 548 was a common type of knife, which I understand is readily available at supermarkets at a relatively cheap price.  The same kind of knife was used by McCartin to stab Rowlands; that is, the knife which was used by McCartin to stab Rowlands was of a similar kind and size and shape to that which was located in Room 548.

1. A review of the CCTV footage outside Room 548 demonstrates that no-one had access to or entered Room 548 between the time of the incident, and the time at which police conducted the search in which they found the knife in it; accordingly, there is no suggestion that the knife that was found in Room 548 had been in the possession of the accused McCartin, Holt, or Harper at the time of the incident.

1. Counsel acting for both Miller and Ms Brown nevertheless seek to adduce evidence as to the finding of that knife in Room 548, and of another knife in the gutter on the western side of King Street just north at the intersection of Little Collins Street.  It is submitted that that evidence would be relevant to demonstrate that, at the time of the incident, the kind of knife which McCartin used in the incident was in common usage at the Ibis Hotel. It was submitted that that fact would be relevant to the issue whether McCartin stabbed Rowlands with the knife which Holt had obtained from Miller and Brown before the altercation in which Rowlands was stabbed.  That is, it has been submitted that the evidence if admitted would be relevant to the question whether McCartin had on his person a different knife to that which that which Holt had obtained from Miller and Brown.

1. The admissibility of that evidence is opposed by counsel for McCartin, Holt and Harper.  It is submitted that that evidence is of limited or no probative value and, in the circumstances if admitted it would result in unfair prejudice to each of those three accused persons.  In particular, it is pointed out that the evidence is that police only conducted the search of three rooms, those which were occupied by the three accused:  McCartin, Holt and Harper.

1. If the evidence given by police, as to finding the knife, referred to the number of the room in which the knife was located, the jury would readily infer that that knife was somehow connected with Holt and Harper.  On the other hand, if the evidence was limited to evidence that the knife was found in just one of three rooms that was searched in the Ibis Hotel, the jury, it was submitted, would readily infer that that room must be that of McCartin or that of Harper and Holt.

1. In support of the admissibility of the evidence, Mr Anderson, who appears with Ms Mildenhall on behalf of Brown, conceded that the evidence, if admitted, would not be of high or substantial probative value.  However, he contended that it would have some probative value because it would add to there being a reasonable possibility that the knife, which McCartin used to stab Rowlands, was not the knife which Holt had shortly before then received from Miller and Brown.  It was further submitted by Mr Anderson that if the evidence were admitted it would not result in any unfair prejudice to the accused of McCartin, Holt and Harper because the knife that was located in Room 548 was an ordinary kitchen type of knife.

1. Mr Terry, who appears on behalf of Mr Miller, supported the submissions made in that respect by Mr Anderson.  On the other hand, Mr McGrath, who appears for McCartin; Mr Backwell who appears for Holt; and Mr Patton who appears with Ms Skvortsova on behalf of Harper have opposed the admissibility of the evidence.  As I have noted, they have submitted that the evidence, if admitted, would be of very limited to no probative value at all.

1. On the other hand, it was submitted that the evidence would have a particular prejudicial sting because it might induce the jury to engage in propensity‑type reasoning.  In other words, reasoning of the kind that one of the three accused who are charged with murder had the type of knife in Room 548 which was in the circumstances of this case, used for violent purposes.

1. On behalf of Ms Harper, Mr Patton also submitted that the jury may, notwithstanding, the examination of the footage from Room 548, nevertheless speculate as to whether Ms Harper did, in fact, return the knife, which had been held by Holt to Room 548, and if they were to reach that conclusion or speculate to that effect, that would be an impermissible linking by the jury of Ms Harper to the purpose and effect of the incident that occurred and with which this case is concerned.

1. The competing submissions made by the parties on this aspect of the case raise two fundamental questions. The first is whether the evidence that is sought to be admitted is of any probative value in the case. Secondly, if it is of probative value, whether that value is substantially outweighed by the danger of unfair prejudice to McCartin, Holt and Harper and, therefore, should be excluded pursuant to s 135 of the Evidence Act 2008.

1. In determining the first issue, that is the potential probative value of the evidence, it is to be borne in mind that the evidence, that is sought to be adduced, is evidence to be relied on by an accused person.  In order to be relevant, such evidence must be evidence which rationally could affect the question whether there is a reasonable possibility that the knife which Holt received from Miller and Brown was not the knife which McCartin used to stab Rowlands.

1. The starting point for considering that question, is that if the evidence were to be admitted, the evidence taken at its highest, would have particularly limited, if any, value in tending to demonstrate that, at the time, the kind of knife that was used to stab McCartin was a species of knife which other people who were resident at or connected to the Ibis had with them at the time.

1. Logically, the fact that the knife found in Room 548 was found in only one of three rooms searched would say very little, if anything, as to whether that knife was commonly connected with people who were resident at or who used the Ibis Hotel.  That is, its relevance, to demonstrate that that knife was a common item at the Ibis Hotel, would be of particularly limited if any weight at all.

1. As I have noted, the knife which was found in Room 548 is one which is commonly available at supermarkets and the like.  The evidence of the knife that was found in Room 548, combined with the evidence of the knife found in the gutter, logically could not of itself found an inference that knives of that type were particularly or specially linked to the occupants of the Ibis Hotel.  Nor as I have said, could those facts found a conclusion that such knives were regularly available or commonly used at the Ibis Hotel.

1. For that reason the evidence, as a foundation for the particular inference sought to be relied on by Miller and Brown, is of limited, if any, value. Further, if the jury were to draw the inference from the finding of the knife in the gutter and the finding of the knife in Room 548, that based on those facts knives of that kind were commonly used at the Ibis, that would just be one circumstantial fact which would not of itself, of course, raise, I consider, a reasonable doubt as to whether the knife used by McCartin to stab Rowlands was the same knife as that which Holt took from Miller and Brown.  In the context of the cased the key evidence concerning that issue is, of course, the CCTV footage, both what it does show, and what it does not show.  The evidence which is sought to be adduced would at best play a very minor part of the evidentiary material on which the jury would seek to rely.

1. For those circumstances I have concluded that the probative value of the evidence sought to be adduced is at best slight and more probably, it is has no probative value.  That is it adds little if anything to the assessment of the issue whether there is a reasonable possibility that the knife which McCartin used to stab Rowlands, was not the knife which Holt had taken from Miller and Brown.

1. On the other hand, I am persuaded that if the evidence were admitted it could result in unfair prejudice, particularly to Harper and Holt in their case, and possibly to McCartin.  The knife itself, as I have said, was not used in the altercation in which Rowlands was stabbed.  The fact that that knife was in Holt and Harper's room could, I apprehend, give rise to some speculation by the jury as to why Harper and Holt had that knife in the room that they used at that time.  While the knife is of a common kind which can be used for domestic purposes, the finding of the knife in that room without more in the particular circumstances of this case, might lead a jury to speculate or consider whether Holt and Harper were the kind of people who used or had such knives for other than legitimate domestic purposes.

1. Further, as Mr Patton submitted, although the CCTV footage does not depict Harper returning to Room 548 after the incident, nevertheless, there will be admitted in the trial, footage of her movements in and about the hotel, including on floor 3 after the incident. I have ruled that that evidence is relevant to demonstrate conduct which is admissible as incriminating conduct in the case.  There is a risk that the jury could consider that notwithstanding the lack of CCTV footage disclosing any person entering Room 548, nevertheless, Harper did in some way return to Room 548 with the knife which Holt had on him in the altercation.

1. If that were to occur and if the jury was to form that conclusion, it could thus consider that Harper had placed the knife there because she felt that she had been linked in purpose with McCartin and Holt in the altercation which resulted in Rowlands death.  In that way, that evidence would, in my view, result in unfair prejudice to Ms Harper. 

1. It follows, accordingly, that the evidence which is sought to be adduced on behalf of Miller and Brown as to the finding by police of the knife in Room 548 would have at the most, very limited if any probative value as to the issue whether the jury could be satisfied beyond reasonable doubt that the knife used by McCartin to stab Rowlands was the same knife which Holt had received from Miller and Brown shortly before the incident.

1. On the other hand, for the reasons I have set out, there is a real risk of unfair prejudice to Harper and Holt and to some extent to McCartin if the evidence were adduced. I am, therefore, persuaded that any probative value of the evidence that is sought to be adduced would be substantially outweighed by the danger that it might result in unfair prejudice to Holt and Harper and to a limited extent to McCartin. For those reasons I rule that the evidence should be excluded under s 135 of the Evidence Act2008.