Director of Public Prosecutions v Scutcheon and Scutcheon

[2021] VCC 1778

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00481
and CR-21-00489

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY PAUL SCUTCHEON and
TRISTIAN SCUTCHEON

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	8 October 2021
DATE OF RULING:	11 November 2021
CASE MAY BE CITED AS:	DPP v Scutcheon and Scutcheon
MEDIUM NEUTRAL CITATION:	[2021] VCC 1778

RULING
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Subject:Criminal law- Evidence – admissibility-Facebook Messenger messages – admission – application to exclude evidence – whether probative value outweighed by any danger of unfair prejudice – s88, 137 Evidence Act 2008.

Ruling:  Evidence admissible

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Grant	Abbey Hogan, Solicitor for Public Prosecutions
For the Defendant (Geoffrey Scutcheon)	Ms Tania Skvortsova	MMO Lawyers
For the Defendant (Tristian Scutcheon)	Mr J Lavery	Docherty Legal

HER HONOUR:

1This matter came before the court on Friday, 8 October 2021.

2Pre-trial rulings were sought in advance of trial relating to issues that were raised by both Geoffrey Scutcheon and Tristian Scutcheon in their respective Defence Responses in anticipation of a trial that was due to be conducted in the Mildura circuit commencing 18 October 2021.

3The contested preliminary matters as between the Prosecution and Tristian Scutcheon resolved.

4The remaining outstanding matter to be ruled upon raised by the accused, Geoffrey Scutcheon, concerns whether three Facebook Messenger messages that were sent by him to the complainant, Lucas Hester (Hester), are admissible. 

5I shall proceed to make this ruling having regard to the depositional material, the written and oral submissions made by the parties and the circumstances of the alleged offending that are set out in the Amended Summary of Prosecution Opening – Trial dated 12 October 2021 and the defence Response to the draft Prosecution Opening filed on behalf of Geoffrey Scutcheon dated 27 August 2021. 

6Mr Grant, who appeared for the Prosecution, confirmed at trial the following offences will be alleged against each of the accused, Geoffrey Scutcheon and Tristian Scutcheon, who are father and son, namely:

Charge 1 – aggravated carjacking contrary to s79A of the Crimes Act 1958; and

Charge 2 – intentionally causing injury contrary to s18 of the Crimes Act (Charge 2 is an alternative to Charge 1).[1]

[1] The Indictment relates to a charge of Aggravated Carjacking and the draft Prosecution opening referred to this offence alone. The Defence Responses that have been filed respond to the Indictment and the Draft Summary of Prosecution Opening dated 11 May 2021. The Amended Summary of Prosecution Opening for Trial adds a new paragraph 11A to reflect the proposed Amended Indictment but the content is otherwise the same as the earlier draft opening.

7The offending came to light following a presentation by Hester, the complainant, at the Mildura Base Hospital at approximately 1.30pm, on 1 November 2020.  Hester had a head injury and stated that he had been assaulted, and that his car had been stolen.

8Police were contacted and spoke with Hester, and he identified the offenders as Paul Scutcheon (it is accepted that Geoffrey Paul Scutcheon usually goes by his middle name Paul) and Tristian Scutcheon.

9The alleged offence happened on Sunday, 1 November 2020 in Merbein.

10Geoffrey Paul Scutcheon (Geoffrey Scutcheon) is a friend of Hester. They met whilst they were at school together.

11In the  week leading up to the alleged offence there had been contact between Hester, Geoffrey Scutcheon and his son, Tristian Scutcheon. At times the Scutcheons’ had been staying at Hester’s property in Ouyen.

12The prosecution allege that the two accused had stayed the night with Hester on 31 October 2020.

13On the following morning, Sunday, 1 November 2020, the two accused and Hester left the complainant’s home address in Ouyen at approximately 10.30am intending to travel in convoy to Mildura where the accused intended to visit some family members. They arranged to meet at a nominated location in Mildura.  

14Hester was driving a green coloured Ford.

15Geoffrey and Tristian Scutcheon were driving a red coloured Toyota Corolla.

16Hester drove to the arranged address and waited there in his vehicle for the accused men to arrive.

17A short time later,  Geoffrey Scutcheon approached the complainant’s vehicle and told him that they (Tristian and he) were going to see an aunt in nearby Merbein. 

18Hester agreed to go on to Merbein with the accused men.  He led the way to Merbein in his vehicle with the accused following in the red Corolla. 

19Hester pulled over onto a patch of dirt on Commercial Road when he arrived at Merbein to allow the other vehicle to lead the way or alternatively, so that he could be told where to go. 

20It is alleged that Tristian Scutcheon pulled up in the red car beside Hester’s vehicle and both accused men got out of the red Corolla.

21Tristian Scutcheon walked over to the complainant’s open driver’s side window. Hester was seated in his car with his seatbelt fastened. 

22When Tristian Scutcheon reached the driver’s side of Hester’s car, he suddenly struck Hester with a hard object that he was holding. Hester saw that Tristian had a greyish metallic bar, like a crowbar.

23Tristian Scutcheon hit Hester with the bar and took Hester’s keys during the assault.

24Hester tried to get out of his vehicle via the passenger side door.  However, Geoffrey Scutcheon, was standing against the door preventing him from opening it. Geoffrey Scutcheon was yelling at him, but Hester could not understand what he was saying.

25Geoffrey Scutcheon eventually stepped away from the door enabling the complainant to get out of the vehicle.

26In his second police statement Hester states that Geoffrey Scutcheon was holding his phone up, as though he was recording the incident.  Geoffrey Scutcheon was verbally aggressive towards the complainant, calling him a “bitch” and other things.[2]

[2] Statement of Lucas Hester dated 12 November 2020, Depositions 322-323

27Hester was shocked and dazed.  He walked over to a nearby footpath.  He saw Tristian Scutcheon get into his green Ford and Geoffrey Scutcheon get into the red Corolla and both vehicles then drove off.

28The incident was witnessed by a nearby resident, Ms Bronwyn Caldwell.  She saw the two vehicles parked on the side of the road opposite her house.  She noted at one stage that one of the males was half inside the driver’s side window of what she believed was a dark Commodore.  She observed the other car was a small red car.

29She was mowing the lawn and, over the sound of her lawn mower, she heard “abuse” and loud talking.  She saw one of the males had a crowbar.  She then saw one male get into the dark car and another get into the red car and then both cars drove off.  After this, she observed a third male standing on the footpath with what appeared to be blood running down his neck.  She saw him walk away towards Merbein town centre.[3]

[3] Statement of Bronwyn Caldwell 8 November 2020, Depositions 23

30Hester walked to a nearby friend’s house.  However, the friend was not home.  He telephoned another friend, who came and assisted him. Hester was taken to the Mildura Base Hospital where he was treated for several injuries, including a large gash to the back of his head. 

31Whilst at the hospital, Hester received several Facebook Messenger [4] messages from the accused, Geoffrey Scutcheon, on his phone.

[4] Facebook Messenger is an instant messaging app and platform

32The first message (message 1) was received at 12.20pm and reads as follows[5]:

you know exactly why Luke you ripped me off mate I have it all on video and you look like a little bitch I am telling you right now I have one bit of trouble at my doorstep and it will be going all over Facebook don’t forget I have family and friends in Mildura and I’m sure they will post it everywhere

[5] Photo of complainant’s phone Depositions 76

33Hester responded, “Man what happened?”

34The accused then sent a second message (message2), which was received at 1.06pm and reads as follows:[6]

don’t fucking lie look you ripped me off and you were trying to set me up UC blokes like you talks themselves up to be big men I don’t need to do that Luke as I said you bring any trouble to my door everyone in Mildura we’ll (sic) see who you really are now you make things right and I promise you no one will see the video from my phone

[6] Photos of Hester’s phone Depositions 76

35Hester responded, “Shit go” …“Shit go, man”.

36Following which, the accused sent a third message (message 3), which was received at 1.44pm and reads as follows:[7]

Shit Go man you got that right I trusted you as a mate and you treated me like a goose and you made it quite clear in your kitchen if I didn’t like it to take my stuff and go with you owing me money 4+ K you told me you needed help  I gave you an opportunity for the both of us you know damn well I was not greedy don’t you remember the old saying be careful of The quiet ones you don’t know me luke you think you’re the only one that is a player

[7] Photos of Hester’s phone Depositions 77

37At the committal hearing, the informant, Detective Senior Constable Shaun Godfrey, confirmed that six photographs were taken of the screen of the complainant’s mobile phone that showed the three Facebook Messenger messages sent from Geoffrey Scutcheon to the complainant.

38The photographs are of the screen image rather than an analysis of the phone in any other way, and the phone was not retained as an exhibit.

39It is not in dispute that Geoffrey Scutcheon sent the three messages.

40Police arrested the accused men separately later that afternoon. 

41Geoffrey Scutcheon gave a no comment record of interview as is his right.

42The prosecution contends that each of the accused were involved in the commission of the alleged offence.

43It is alleged that Tristian Scutcheon used force on Hester to steal the green Ford.  It is further alleged that:

(a)   at the time, Tristian Scutcheon had with him an offensive weapon, namely a crowbar; and/or

(b)   in the course of the event, Tristian Scutcheon caused injury to Hester.

44The prosecution contend that Geoffrey Scutcheon was involved in the commission of the alleged offence as he:[8]

(a)   Intentionally assisted, encouraged, or directed Tristian Scutcheon in the commission of the offence; and/or

(b)   entered into an agreement, arrangement or understanding with Tristian Scutcheon to commit the offence.

[8] see section 323(a) and (c) Crimes Act 1958.

45The Defence Response filed on behalf of Geoffrey Scutcheon confirms that it is not in dispute that Hester presented to the Mildura Base Hospital with a head injury on 1 November 2020 and the injury Hester presented with was caused during an altercation with co-accused Tristian Scutcheon earlier that day.

46It is disputed that Geoffrey Scutcheon, was a person involved in the commission of the aggravated carjacking (under s323 of the Crimes Act 1958).

47Geoffrey Scutcheon contends that:

(a)   there was no agreement as between him and Tristian Scutcheon to use force to obtain the complainant’s car keys;

(b)   he was not present at the driver’s side door of the complainant’s vehicle during the salient part of the physical assault of the complainant by co-accused, Tristian Scutcheon;

(c)   the complainant elected to give the keys to Tristian Scutcheon after the physical altercation.

48In the circumstances, the issue in dispute in respect to Geoffrey Scutcheon’s trial is:

(a)   whether the force used by the co-accused, Tristian Scutcheon, was deployed in order to obtain the keys from the complainant;

(b) whether the accused was criminally involved in the conduct of the co-accused, Tristian Scutcheon, insofar as necessary to meet the requirements of s323(1)(a) and (c) of the Crimes Act 1958  in that his presence at the scene of the assault:

(i)is not in and of itself evidence of an agreement to commit the aggravated carjacking; and/or

(ii)did not assist, encourage, or direct the commission of the offence by Tristian Scutcheon.

49Geoffrey Scutcheon opposes the admission of the three Facebook Messenger messages sent by him and referred to above.  It is disputed that these amount to or contain any admissions.[9]

[9] Defence Response to Draft Prosecution Opening 27 August 2021.

50Tristian Scutcheon, in his defence response dated 26 July 2021, makes the following admissions:

(i)the defence admits attending the complainant’s house shortly prior to the offending;

(ii)the defence admits accompanying the complainant to Merbein;

(iii)the defence admits assaulting the complainant but does not admit attempting to steal the keys or steal the motor vehicle.

51In addition, in the submissions filed for the purposes of the pre-trial hearing, Tristian Scutcheon admitted that he drove the vehicle away, that identity is not in issue, and the accused, Tristian Scutcheon’s involvement in the incident is not in issue. 

52Whether Tristian Scutcheon used force on Hester to steal his vehicle is very much a “live” issue in the trial.

53In her written submission, Ms Skvortsova, on behalf of Geoffrey Scutcheon, opposes the admissibility of the Facebook Messenger messages on the following bases:

(a)   they do not comprise exceptions to the hearsay rule:

(i)they do not contain any admissions made by the accused about his own conduct during the altercation (that is, do not amount to an admission as defined in the dictionary of the Evidence Act 2008 (“the Act”).

(b) in the alternative, the evidence should be excluded under s137: the probative value of this evidence is outweighed by danger of unfair prejudice to Geoffrey Scutcheon.

54Mr Grant, on behalf of the prosecution, sought to rely upon the three Facebook Messenger messages on the basis that the messages are relevant, highly probative, and admissible as:

(a)   they were sent to the complainant by Geoffrey Scutcheon very shortly after the alleged offence;

(b)   the messages contain admissions, referrable to the alleged offence;

(c)   the messages contained reference to a motive for the alleged offence.

The parties’ submissions

55Mr Grant submitted based on the evidence of both the complainant and a neighbour, that the offence occurred somewhere around midday to 12.30pm on Sunday, 1 November 2020. 

56The three Facebook Messenger messages Hester received whilst he was at the Mildura Base Hospital were sent by Geoffrey Scutcheon shortly after the commission of the offence.

57He submitted that the words used amount to previous representations made by Geoffrey Scutcheon that could be relied upon by a jury as an admission to, firstly, him being present at the time the offence was committed; secondly, evidence of him encouraging or assisting Tristian Scutcheon in the offending; and thirdly, an admission that he recorded the attack on his phone and that those messages reveal a possible motive for the offending.

58Mr Grant submitted that, if accepted, those previous representations constitute an admission as to an element of statutory complicity, namely, that the accused assisted, encouraged, or directed the principal offender to commit the offence. 

59Mr Grant submitted that the timing of the first Facebook Messenger message and the words used are unambiguous; they refer to the incident that has just taken place; they describe a possible motive for the alleged offence; and it contains an admission that  Geoffrey Scutcheon was present at the time of the alleged offence and that he was using his phone to videotape the incident.

60Lucas Hester, in his second statement of 12 November 2020, records that when he was finally able to get out of the vehicle, “Paul had his phone up like he was recording the incident. He was being aggressive, calling him a bitch and stuff like that”.[10]

[10]Depositions page 323

61Mr Grant submitted that the second Facebook Messenger message was sent at 1.06pm and that the content of this message also constitutes evidence of a motive for the offence. The use of the words “you ripped me off”  and  “you were trying to set me up” demonstrates this. In that message, Geoffrey Scutcheon repeats the admission that he had videoed the incident on his phone. 

62The third Facebook Messenger message refers to Geoffrey Scutcheon saying that the complainant had “treated him like a goose” and refers to the 4+K that the complainant owed him.  There is a reference to a discussion in the complainant’s kitchen whereby Hester said to that Geoffrey Scutcheon “if he didn’t like it, he could take his stuff and go”. 

63Mr Grant asserts that Geoffrey Scutcheon is describing a discussion that occurred in Hester’s kitchen prior to the alleged offending.  He submitted that the content of the message is again evidence of motive.

64Mr Grant submitted that, ultimately, it is a question for the jury as to what the words mean but he submitted that the words used were clear.  If looked at in the context of what was happening at the time and the allegations being made by the complainant there is no ambiguity about the meaning of the words used.

65The jury could be satisfied that all three messages sent so soon after the alleged offending contained direct admissions that Geoffrey Scutcheon was present at the time of the incident that is the subject of the charge; that Geoffrey Scutcheon video recorded the incident on his phone; and that the content of the words are referrable to the offence and demonstrate evidence of motive for the alleged offence that is, Hester had ripped him off and owed him money. Therefore, the three messages are highly probative and, in his submission, admissible as admissions.

66Ms Skvortsova opposed the admission of the three Facebook Messenger messages in their entirety.  She submitted that the messages were sent after the incident had occurred involving the two co-accused and the complainant. Therefore, this constitutes post-offence conduct, necessitating a Notice of Incriminating Conduct to be filed.

67She highlighted that the issue in dispute, insofar as her client was concerned, was whether he was involved in the incident that took place at the complainant’s car, and whether his involvement was such that it amounts to involvement under s323(1)(a) and (c) of the Crimes Act 1958. 

68Therefore, the issue is whether whatever Geoffrey Scutcheon’s conduct was, did that amount to intentional assistance, encouragement, and direction of the commission of the aggravating carjacking by his son, Tristian? 

69In the alternative, the jury will need to be satisfied to the requisite standard that there was an agreement or arrangement or understanding that Geoffrey Scutcheon entered with his son, Tristian Scutcheon, specifically to commit the aggravated carjacking.

70Ms Skvortsova confirmed that it is not in dispute that Geoffrey Scutcheon was present and that he witnessed the incident. Nor is it in dispute that Hester sustained injuries during that incident.  She submitted that the messages, when viewed in their entirety and taken at their highest, are evidence of Geoffrey Scutcheon’s knowledge of there being an altercation between Hester and his son, Tristian Scutcheon, and, beyond that, that he was merely a witness to the incident. Neither of those facts are in dispute. 

71Therefore, given that those matters are not in dispute, she contended that the messages are not relevant and therefore not admissible.  She submitted that the content of the messages and what is purported to be made of them has no rational bearing on the probability of an existence of a fact in issue.  Put simply, they are evidence of Geoffrey Scutcheon being present or witnessing the incident, and of there being an incident, and neither of those matters are in dispute.

72Ms Skvortsova submitted if the content of the three messages is considered to be relevant, then the messages are, strictly speaking, hearsay evidence.  She submitted what is said in the text messages is not adverse to Geoffrey Scutcheon’s own interests in the proceedings given what is and is not in dispute.  Therefore, they do not constitute an admission as defined in the Evidence Act.

73If the court is satisfied that the messages are relevant under s55 and, secondly, that they may be capable of amounting to an admission, then she submitted that s137 of the Evidence Act requires the court to exclude the evidence based on the probative value as outweighed by the danger of unfair prejudice to Geoffrey Scutcheon.

74Ms Skvortsova submitted the messages are ambiguous because the meaning of the words is not clear because of the language used and the paucity of punctuation in the text messages.

75Further the messages are ambiguous as to which part of the week’s long interaction between the parties that those messages are making reference to.  Those dealings included the two co-accused intermittently staying with the complainant, and multiple trips taken by either, two of them, or three of them together. 

76She submitted the fact that the evidence is confined to only the screen shots of Hester’s phone with there being no examination or analysis of the phone is a relevant factor to the court’s consideration of the probative value of the evidence because the messages are devoid of their context.

77Furthermore, she submitted that there is a danger that a jury would misuse the evidence. She referred to the various references to Geoffrey Scutcheon feeling like he was “ripped off”.  She submitted that there is no evidence about what it is that he was feeling ripped off about, and there is a danger that a jury could use those references to improperly reason that they somehow provide a motive for Geoffrey Scutcheon to decide to use force on the complainant to obtain his car, which has a fraction of the value, in repayment of whatever the debt is said to be owing.  

78Therefore, she submitted that the court ought to be satisfied that the probative value of the messages is sufficiently low and is outweighed by the danger of unfair prejudice to her client.

79Mr Grant, in response, highlighted that the main issue in dispute in relation to the aggravated carjacking is whether it can be proven that Tristian Scutcheon used force to steal Hester’s vehicle. 

80Both Geoffrey Scutcheon’s and Tristian Scutcheon’s defence is that element one of the charge of aggravated carjacking is in dispute that is, whether the accused committed a carjacking.

81The basic offence of carjacking consists of robbery where the property stolen is a car.

82Both the accused defence is that Hester voluntarily provided the keys to the car to Tristian Scutcheon in payment of a debt owed. 

83Mr Grant submitted therefore, even on the defence case, the issue of money owed and of a debt, is relevant and will be one of the crucial issues the jury will need to consider in the trial.

84The jury will need to determine whether they are satisfied that the Prosecution has proved that Tristan Scutcheon stole the car, that is, took it without being entitled to it and at the time of doing so and to do so, he used force on Hester.

85Therefore, he submitted that the portions of the messages referring to Hester owing money to Geoffrey Scutcheon is relevant to not just the prosecution case, but also to the jury’s consideration as to whether the car was voluntarily handed over by Hester in payment of a debt or whether it was taken by force to enforce payment of a debt. 

86He submitted that the Crown is seeking to rely upon the messages as being capable of constituting admissions and they are not relying on them as implied admissions, therefore, a Notice of Incriminating Conduct is not required. 

87Put simply, the Crown states that very shortly after the alleged offence Geoffrey Scutcheon sent the Facebook Messenger messages to Hester that refer to the incident; they refer to a motive for the offence; and amount to admissions of being involved in the incident.

88Motive is a relevant consideration in the case because it is relevant to the jury’s task and the issue of whether Hester handed over the keys voluntarily or because of the use of force by Tristian Scutcheon.

89The statements of motive are, in his submission, a capable of being an admission under the Act. That is, they are prior representations that have been made by Geoffrey Scutcheon that are adverse to his interest in the outcome of the proceedings.

90Mr Grant submitted in response to Ms Skvortsova’s submission that there is no context for the messages and therefore that impacts on the issue of relevance, that given the messages were sent by Geoffrey Scutcheon at a time very shortly after the alleged offence, that the messages clearly relate to the alleged offence and therefore the context is self-evident and therefore no unfair prejudice flows. 

Analysis

91The relevant provisions of the Evidence Act are as follows:

“88          Proof of admissions

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

92Part 1 of the dictionary of the Evidence Act provides:

“admission means a previous representation that is—

(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

(b)adverse to the person's interest in the outcome of the proceeding;”

“previous representation means “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.”

93The hearsay rule does not apply to the evidence of an admission. s81 Evidence Act.

94Section 137 of the Act provides:

“Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.”

95There is no requirement that an “admission” be a confession to a crime or even an element of it.

96In a criminal trial, the accused’s principal interest in the trial is that he or she be found not guilty of a charge or an alternative charge.  What is adverse to that interest will depend on the facts of the case and the issues in contest.

97I have had regard to the dicta of Beale J in The Queen v Terdputham & Anor (Ruling Nos 1 and 2)[11] where he refers to a number of commentators, when discussing s88 of the Evidence Act, who have endorsed the view that, under uniform evidence law, it is a matter for the jury as to whether or not an admission was made, provided the judge is of the view that it is reasonably open to the trier of fact to find that the admission was made.

[11] [2015] VSC 411 at para [23]

98Beale J cited the following passage from Ligertwood and Edmond in Australian Evidence:[12]

Whether an admission or confession has been made is a jury question. The judge’s function is to determine whether the evidence is capable of justifying such a conclusion – whether such an inference is reasonably open (as enacted in s 88 of the Uniform Acts). Once such evidence exists, the issue must be left to the trier of fact.

[12]The Queen v Terdputham & Anor (Rulings Nos 1 & 2) [2015] VSC 411, [25]; the footnote reads: Ligertwood cites the following cases for this proposition at [7.7] and [8.101]: Ajodha v The State[1982] AC 204; MacPherson v R[1981] HCA 46; (1981) 147 CLR 512, 520-523; R v Johns[1999] NSWCCA 206; (1999) 110 A Crim R 149, [31]-[32] (NSWCCA); R v Hall[2001] NSWSC 827 , [28]–[29].

99Ultimately, Beale J applied that test. In the absence of any appellate court authority on this question of how a court should approach s88, I shall apply the reasoning in this ruling.

100Therefore, it is the court’s function to determine whether the content of the three Facebook Messenger messages, are capable of justifying a conclusion that they contain admissions as submitted by Mr Grant having been made and whether such an inference was reasonably open to be drawn by the jury.

101If the content of the messages is capable of justifying a conclusion that Geoffrey Scutcheon has made a previous representation adverse to his interest in the outcome of the proceeding, the issue must be left to the trier of fact. 

Findings

102I am satisfied that the three Facebook Messenger messages are relevant to the issues in dispute in the trial. The evidence constitutes part of the accused’s conduct leading up to and at the time of the alleged offence and is capable of demonstrating that Geoffrey Scutcheon was linked in purpose with Tristian Scutcheon at the time of the commission of the alleged offence.

103Each of the three messages contain previous representations made by Geoffrey Scutcheon.

104I am satisfied that the introductory words of the first message that was received shortly after the alleged incident, “you know exactly why Luke you ripped me off mate I have it all on video.” are capable of justifying a conclusion that they contain admissions firstly, that Geoffrey Scutcheon was present when the alleged assault occurred and secondly, that Geoffrey Scutcheon videoed the assault and that he assisted or encouraged Tristian Scutcheon in the commission of the offence.

105Further, the message could be used by the Prosecution as identifying a possible motive for the alleged offence, that is “Luke you ripped me off”. Given what is in dispute in the trial I consider that the statements of motive are capable of constituting an admission.

106The second message that was sent in direct response to Hester’s question “Man what happened?” repeat the admission that Geoffrey Scutcheon videoed the incident and also refers to and repeats a possible motive for the alleged offence against Hester by using the words, “don’t fucking lie look you ripped me off and you were trying to set me up”.

107The third message follows on after Hester  responds, “Shit go…Shit go, man”.

108The third message refers in more detail to Hester and Geoffrey Scutcheon’s relationship and a conversation between the two men in Hester’s kitchen where Hester purportedly said to him, “if I didn’t like it to take my stuff and go with you owing me money 4+K” making reference to the possible motive for the alleged assault.

109Given the timing of the messages and the content of the messages it is reasonably open to find that there are a number of previous adverse representations that is, admissions made namely, that Geoffrey Scutcheon was present when his son Tristian was assaulting Hester, during which he filmed the assault and the possible motive for the assault being that Hester owed him money.

110I do not consider given the timing of the messages and the content of the messages that the words used are ambiguous.

111Therefore, if accepted, the evidence is capable of constituting an admission that is, a previous adverse representation, to a part of the Prosecution case namely, that Geoffrey Scutcheon assisted, encouraged and or directed Tristian Scutcheon in the commission of the offence or that there was an agreement to commit the offence.

112I find that such an inference is reasonably open.

113Ultimately, it will be a matter for the jury to determine whether the words used are capable of being admissions and whether the jury might give the admissions content by way of treating them as the foundation for an inference which might advance the Prosecution case that is, rationally affect a matter in issue.

114Having made the assumption that the three Facebook Messenger messages are admissible as admissions, I move to consider whether there is a risk that those admissions are such that the prejudice outweighs the probative value to warrant rejection in the exercise of the discretionary power. 

115As regards the danger of unfair prejudice that must be assessed under s137, the fact that evidence increases the likelihood of conviction is not prejudice in the relevant sense. It must be unfair prejudice in the sense that there is a real danger that the jury will misuse or overvalue the evidence.[13]

[13] R v Dupas [2012] VSCA 328; [175]

116If the jury accepts that the admissions were made then there is no relevant prejudice to Geoffrey Scutcheon. All the evidence does is tend to establish the Prosecution case that his presence was linked, in purpose, with Tristan Scutcheon.

117The matters highlighted by Ms Skvortsova can be put on behalf of Geoffrey Scutcheon and, ultimately, it will be a matter for the jury to determine which parts of the evidence they accept and which parts they reject.

118The trial judge will give clear directions on the elements of the offence of aggravated carjacking and the alternative charge, the onus of proof and the standard of proof, inferential reasoning, admissions, and motive.

119It must be accepted that the Jury will adhere to the trial directions and apply them to the facts of the case as they find them.

120Further, once the evidence is completed the Defence can apply to the trial judge for any further directions that may be required under the Jury Directions Act 2015.

121Consequently, I do not conclude that the danger of unfair prejudice outweighs the probative value of the evidence. I reject the application to exclude the evidence and I rule the Facebook Messenger messages are admissible in respect to Geoffrey Scutcheon’s trial.