DPP v Farquharson (Ruling no 12)

[2007] VSC 466

IN THE SUPREME COURT OF VICTORIA
CRIMINAL DIVISION

No. 1419 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DONALD WILLIAM FARQUHARSON

Ruling No 12

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	24 September 2007
CASE MAY BE CITED AS:	DPP v Farquharson (Ruling No 12)
MEDIUM NEUTRAL CITATION:	[2007] VSC 466

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Criminal law and procedure – murder – evidence.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Rapke QC Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr P Morrissey Mr C Mylonas	Victoria Legal Aid

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HIS HONOUR:

1. In other circumstances the evidence sought to be led by Mr Morrissey could be said to be admissible.  It could be said to be admissible because although the relevant data is the next day it is, nonetheless, in the same physical locale, that is to say in hospital, not outside, and that is a continuum which Mr Morrissey is entitled to rely upon.

1. However, in the present state of the material I rule it is inadmissible for two reasons.  One is the whole trial has been conducted on the basis that this type of statement and observation of a lay sort is excluded.  It was excluded throughout the Crown case and would now be inappropriate to open it up in the defence case, unless we are going to re-run the whole Crown case again on this issue, which is quite inappropriate.

1. Second, even at this stage, when final addresses are about to start, no statement has been provided to the prosecution, or to me, to consider the material.  Given the way the trial has proceeded I think it would be quite inappropriate now to re-call the various witnesses whose evidence has been excluded on this point.  This witness is not an expert, this witness is simply being called as to lay observations and in my view therefore falls on the other side of the line to the evidence to be called from Mr Roberts.

1. If the trial had been conducted differently from the start a different conclusion might, or might not, have arisen.

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