Director of Public Prosecutions v Scriven (Ruling No. 2)
[2015] VSC 218
•10 February 2015
| IN THE SUPREME COURT OF VICTORIA | Restricted |
AT MELBOURNE
CRIMINAL DIVISION S CR 2013 0181
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM SCRIVEN |
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JUDGE: | MAXWELL P |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 February 2015 |
DATE OF RULING: | 10 February 2015 |
CASE MAY BE CITED AS: | DPP v Scriven (Ruling No. 2) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 218 |
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CRIMINAL LAW – Trial – Murder – Jury discharge – Incriminating conduct – Fatal stabbing – Knife found in accused’s house – Evidence of water on knife, and of knife being wiped – Crown opening – Statement that knife ‘washed, wiped and hidden’ – Whether imputation of incriminating conduct – Notice of incriminating conduct given – No ruling made as to whether evidence reasonably capable of being viewed as evidence of incriminating conduct – Imputation highly prejudicial – Jury discharged – Jury Directions Act ss 23, 24.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams QC with Mr G Hayward | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Ms R Shann with Ms A Beech | Leanne Warren & Associates |
HIS HONOUR:
William Scriven is facing trial on one count of murder. The jury was empanelled late yesterday morning and the prosecutor's opening address commenced after the luncheon adjournment. At the conclusion of that opening address, defence counsel made application to have the jury discharged. For reasons which follow, I consider that the application should be upheld. The jury will be discharged upon their return at 10.30 this morning.
The background to the discharge application is as follows. On 14 December 2014, the prosecution served a notice of incriminating conduct, in accordance with s 23 of the Jury Directions Act 2013. That notice specified several categories of evidence which would be relied on as evidence of incriminating conduct, that is, as evidence that the accused believed that he had committed the offence charged.
The relevant categories of evidence were identified in the notice in these terms:
1.Evidence that the accused said, after the altercation between himself and the deceased, that he had been stabbed.
In particular that the accused said this to:
a) civilian and police witnesses when the accused was present at 8 Thexton Street, Traralgon
b) to a 000 operator who received a telephone call from the accused
c) to medical officers who treated his injuries
2.Evidence that the accused laughed soon after the altercation between himself and the deceased.
3.Evidence that the accused changed his clothing after the altercation with the deceased.
4.Evidence that a knife was located by police in the position depicted in photograph 161 of the booklet of photograph’s (sic) provided to the court.
5.Evidence that the accused’s kitchen area contained what appears to be blood.
6. Evidence that the knife referred to had water marks upon it and had had been wiped.
In their supporting submission, the prosecution reformulated the categories as follows:
A.The accused telling people, after his altercation with the Deceased, that he had been stabbed.
B.The accused laughing after the altercation.
C.The accused changing his clothing after the altercation.
D.Evidence that a knife was washed and concealed after the altercation.
A footnote to that submission noted that category D was intended to encapsulate all of the evidence identified in the notice as categories 4, 5 and 6. As can be seen, however, the language used to define category D was quite different from the language used in the notice. It was now said that the relevant evidence was evidence ‘that a knife was washed and concealed after the altercation’. This was not a statement of evidence but a statement of the inference sought to be drawn from evidence.
The submission stated that this evidence would be relied on ‘to argue that the accused himself washed and concealed the knife, or that his partner did so with his acquiescence’. It would be submitted, further, that he had done so because he believed he had committed the offence charged and/or had not acted in self-defence.
In their written submissions in reply on incriminating conduct, defence counsel had proposed that:
Save for where there is a dispute as to the admissibility of evidence, … a ruling on the issue of whether or not the prosecution may close to the jury in accordance with their notice ought be left until all of the evidence from both the prosecution and the defence cases is before the Court.
At the final directions hearing, the prosecution indicated agreement to the proposed course. As a result, there was no pre-trial argument on whether the evidence in question was reasonably capable of being viewed by the jury as evidence of incriminating conduct.
It should be noted that s 24(1) of the Jury Directions Act is in these terms:
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless —
(a)the prosecution has given notice in accordance with section 23; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
It would seem from the language of paragraph (b) that a trial judge cannot make the determination contemplated by that paragraph until he or she has heard ‘the evidence as a whole’. On that view it would not, in any event, have been open to me to rule on the question before the commencement of the trial. Nothing, however, turns on that for these purposes.
In her opening address, senior counsel for the prosecution informed the jury of evidence that, after the stabbing, the accused had yelled ‘I've been stabbed too’, had laughed in the direction of the deceased and of those who were trying to help him; and had changed his clothes. This evidence was identified in the s 23 notice as categories 1, 2 and 3.
The passage in the opening which has prompted the discharge application related, however, to the other categories. It was in these terms:
Police attended at 8 Thexton Street. The area was examined by crime scene examiners including inside the house where a number of items were collected including knives. Blood staining was observed on some surfaces inside the house particularly we say the kitchen bench and on an area just there's some steps[sic]. In the house there was a bit of bloodstaining there.
But in particular a knife was located that the Crown says to you was hidden and it was hidden behind — in the house, behind a car seat and some other items. I'll show you some photographs in due course. That knife we say had been washed and wiped.
Subsequently senior counsel referred successively to ‘the knife we say was hidden’ and ‘a knife being hidden’.
The defence submission in support of the discharge application is that, by advancing the contention that the knife had been washed and wiped and hidden, the prosecution had clearly implied that this was incriminating conduct. In response, senior counsel for the prosecution submitted that she had gone no further than to refer to the evidence which would be led — as had been agreed — and had carefully refrained from making any suggestion that the accused had done anything amounting to an implied admission of guilt.
In my opinion, the language used did convey — in unmistakable terms — an imputation that the washing, wiping and hiding of the knife could, and should, be seen as supporting an adverse inference against the accused. It is one thing to describe in neutral terms evidence as to where the knife was found and as to the observations made by the person who subsequently examined the knife. But it is quite another thing to state the inference which (subject to my ruling under s 24) the jury will be invited to draw from those observations, namely, that somebody had washed and wiped the knife and hidden it.
It will be apparent that to speak of the three alleged acts — washing, wiping and hiding — as if they constituted a sequence has a particular sting of incrimination. Such a course of conduct — that is, to wash, wipe and hide a knife after a fatal stabbing — would, as defence counsel submitted, be understood as conveying that the accused, either by himself or through someone else's agency, had covered up a crime which he was aware he had committed. Indeed, it is difficult to see what other inference could be drawn from conduct so described.
In that sense, the character of the inference drawn in the opening address is such as to convey the imputation that the accused behaved in an incriminating fashion. In a case such as this, the inferred conduct — washing, wiping and hiding — has great potency as apparently disclosing an awareness of guilt.[1]
[1]Papazoglou (No 1)v The Queen (2010) 28 VR 644, 653 [37].
In these circumstances, in my opinion, it is no answer for the prosecutor to say — accurately — that she did not use the words ‘incriminating conduct’. I might add that that particular legal phrase would have conveyed much less to the jury than the words of inference which were used.
Nor, with respect, was it correct to say, as the prosecutor did, that she had confined herself to the evidence. The evidence is that which is described, in neutral terms, in categories 4, 5 and 6 in the s 23 notice. That is, it is the evidence of the relevant observations regarding the knife. The prosecutor went much further by stating the inference which would be sought to be drawn from that evidence.
In their written submissions, defence counsel had specifically agreed to the leading of the evidence as identified in categories 4, 5 and 6. In my opinion, nothing more was permitted to be said, pursuant to the agreement between counsel, and nothing more should have been said.
I note that an almost identical statement caused the abandonment of the first trial of this charge after all the evidence had been heard. In final address, the then prosecutor said:
The knife — it was found washed, wiped and hidden — which is completely inconsistent, we say, with self-defence.
The defence objected that the prosecutor was attempting to rely — for the first time, and without having given a s 23 notice — on incriminating conduct.
The prosecutor responded:
We’ve given no notice. We’re not going down that path. We don’t say he washed, he wiped, he hid. All we say — it was washed, it was wiped, it was hidden.
…
But the Crown will never go to this jury and say ’look at what he did afterwards. He was conscious that he had done that’. That’s from the outset. The prosecution has never been putting that argument and thus no notices were given.
The defence applied for a discharge of the jury, and the trial judge upheld the application, saying:
Although I really do regret coming to this conclusion, I think a high degree of need is established and I am not persuaded that the matter can be put right by withdrawal or direction in any terms. In that regard, I take into account the following considerations, among others.
First, a lot of crime scene evidence has been given about the knife. That evidence, as I saw it, was no evidence of post-offence conduct, because that was not the way the prosecution case was being put and I thought it would be put in a neutral way when it came to closing addresses. But that evidence is of such scope and extent that I think it would now be very difficult for the jury to be stopped from having regard to this evidence in an impermissible way, having regard to the comments made in closing address so far.
…
Lastly, the finding of the knife and the evidence that it had been cleaned is of considerable significance in the context of the evidence overall. A material danger that the jury would, despite withdrawal or rejection or direction from me, be influenced by the evidence impermissibly is of real importance in terms of prejudicing the fair trial of the accused.
With respect, it seems to me that what has occurred in this trial was entirely avoidable and should have been avoided. It could hardly have been plainer from the circumstances of the termination of the first trial that this was a highly sensitive topic. In particular, it should have been obvious that a statement that the knife had been ‘washed, wiped and hidden’ would be regarded as highly prejudicial, whether or not the conduct was expressly attributed to the accused.
The written opening for the present trial made no mention of any such contention. One comparable contention in the opening — about the inference to be drawn from the evidence about laughing — was objected to and was withdrawn. It seems to me inevitable that, if notice had been given of what was to be said in relation to the knife, the defence would have objected and I would, if necessary, have ruled that the statement not be made.
For the reasons I have given, this was a topic which could not be ventured upon without opening up, impermissibly, the question of incriminating conduct. By agreement, resolution of that issue had been deferred until the close of the evidence. At the very least, if the prosecution proposed to go to the jury on this topic in opening, the issue should have been raised with me in advance.
Accordingly — and reluctantly, given that we appear to have an industrious jury — they will be discharged and we will empanel a fresh jury as soon as practicable.
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