DPP and Samuel Peter Smith

[2014] VCC 379

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00821

DPP

v

Samuel Peter Smith

---

JUDGE:	Cannon
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2014
DATE OF RULING:	2 April 2014
CASE MAY BE CITED AS:	DPP and Samuel Peter Smith
MEDIUM NEUTRAL CITATION:	[2014] VCC 379

RULING No. 4
---

Subject:  CRIMINAL LAW

Catchwords:             Ruling No. 4 – Admissibility of complainant’s reference to knife   - Committal evidence – Fairness to accused   

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Hennessy	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Ms F. Todd	Robert Stary Lawyers

HER HONOUR:

1       In circumstances where defence do not say that the Crown ought not be able to lead any evidence from the complainant as to why it was she stayed after the first episode which gives rise to Charge 1 of rape, and in circumstances where consent is a central matter in issue in this trial, notwithstanding that the complainant did not refer to the presence of a knife in her first or second statement, and notwithstanding that it was not put to the accused that there was no knife present, I am of the view that the complainant in her evidence, ought not be constrained when answering the prosecutor as to why she did not leave after the first episode of alleged rape; in my view, there is no unfairness to defence, in that, they are not deprived of cross-examining the complainant about the various matters to which Ms Todd has referred, which may well go to her - or would go, I would have thought, to the complainant’s credibility in terms of her saying that there was a knife present, and in terms of her not including that matter, (which, one would have thought, would be a significant matter) in her first or second statements.  I am concerned that if the complainant were instructed not to refer to a knife when asked why it was she did not leave after the first episode of alleged sexual offending, it may well be a completely artificial exercise and a misleading picture conveyed to the jury if that matter is referred to in the course of cross-examination, or if the matter is not referred to in the course of cross-examination, in circumstances where that is what the complainant has said was one of the things that operated on her mind at that particular time.  Now whether or not it was, whether or not there was a knife, they are matters ultimately for the jury to consider and they are matters that go to the complainant's credibility in my view. 

2       In the end I am of the view that Mr Hennessy is entitled to ask the complainant why it was she was afraid to leave (assuming she gave evidence that she was afraid) and the complainant ought not be instructed in relation to what she ought say, in so far as her reason for not leaving at that time is concerned, save to say, she has to be instructed in keeping with the first ruling that I have given this morning- that she cannot refer to those matters contained in p.1 of her first statement as to the knowledge of the accused's propensity for a reputation for violence and the like.