Director of Public Prosecutions v Voigt (Ruling No. 3)

[2016] VCC 1702

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-16-01298

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY VOIGT

---

JUDGE:	Sexton
WHERE HELD:	Melbourne
DATE OF HEARING:	8 – 15 November 2016
DATE OF RULING:	14 November 2016
CASE MAY BE CITED AS:	DPP v Voigt (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1702

REASONS FOR RULING NO.3
---

Subject:         Criminal Law - Admissibility of Accused’s drug use        
Catchwords:             
Legislation Cited:     
Cases Cited:            
Ruling:           Application granted             

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Faller	OPP
For the Accused	Ms Z. Broughton	Victoria Legal Aid

HER HONOUR:

1       During the course of the special hearing of the 15 year old complainant which was recorded last week, before empanelment of the jury, a matter arose in respect of the accused’s alleged drug use which had been edited from both the VARE of the complainant and proposed to be edited from the record of interview of the accused, where he made admissions about his drug use.

2       After some discussion, the prosecution indicated that it wished to revisit that concession about not having any drug use of the accused before the jury. And to put it into further context, the complainant in the special hearing gave evidence about the effect on her of the drug use of not just her mother, but the accused, and that in effect, she was left to parent her young siblings, which had contributed to her anger issues, about which she was being cross-examined.

3       She related that to the anger issues that she had been feeling, not just because of her mother’s drug use, but also the three to four years in which her mother and the accused were her parents and carers.

4       The submissions appear on the transcript and I have been assisted by them. The defence’s primary submission is to have the evidence remain out but the particular prejudice is in respect of the possibility of the mention of the particular drugs that the accused refers to in his record of interview, ice in particular, but also heroin, pills and pot. “Ice” we take to mean amphetamines and pot to be marijuana. Pills is an unknown.

5       So the primary position is that the material should not be readmitted as it were, and the secondary position is that if it is to be admitted, it should be in a generalised form so it did not spark the potential prejudice of a jury speculating about ice creating an explosion of violence, given that there is a very violent set of allegations in respect of the alleged matters on the indictment. There will be no evidence in the trial about the effect of particular drugs in general, or specifically on the accused.

6       Having been assisted by the submissions, I have looked again at the material that has been, at the moment, edited out of both the VARE and the record of interview. There are some drug references that were said in evidence during the special hearing that we will revisit separately.

7       I am satisfied that some evidence of the accused’s drug use should be before the jury for general background and context, both as to the family dynamics and the impact on the complainant, but also as specific background in respect of the day of the alleged events. Therefore, I propose to accede to the prosecution application, but only in part.

8       I am satisfied that with the appropriate editing of the material referencing drug use by the accused, and appropriate directions to the jury, any prejudice which will be arising, will not be unfair prejudice, that is, evidence used impermissibly.

9       So I will go through now what I consider are the appropriate edits, but I will further counsel as required, in respect of these matters. And I so rule.