JUDGE:	Curtain J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2010, 1, 2, 4 March 2010
DATE OF RULING:	10 March 2010
CASE MAY BE CITED AS:	DPP v McRae
MEDIUM NEUTRAL CITATION:	[2010] VSC 114

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Joint criminal enterprise – Murder – Unfavourable witnesses – Prior inconsistent statements – Application to cross-examine pursuant to s 38 Evidence Act 2008 (Vic) – Admissibility of statements made to police and audio visual recordings of interviews as evidence – Unfair prejudices – ss 38, 60, 135, 136, 137 and 192 Evidence Act 2008 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Beale	Office of Public Prosecutions
For the Accused	Mr C Dane QC	Lethbridges Barristers and Solicitors

HER HONOUR:

Clinton McRae is on trial for murder. The Crown case is that he was a party to a joint criminal enterprise to kill Stephen Witham. The Crown proposes to call four witnesses: Flaherty, Watson, Connally and McGillivray, who were variously involved in the events of 12 and 13 August 2006 when Mr Witham met his death. All four witnesses have pleaded guilty and have been sentenced in respect of their respective roles.

The Crown applies, pursuant to ss 38 and 192A of the Evidence Act 2008 (Vic) (‘Evidence Act’), for an advance ruling granting leave to question the witnesses as though cross-examining each of them. The application is opposed by Mr Dane QC acting on behalf of Mr McRae.

Section 38 of the Evidence Act provides as follows:

“38. Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v McRae

Details

AGLC: DPP v McRae [2010] VSC 114
Case: [2010] VSC 114
Decision Date: 10 March 2010

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v McRae, the court was tasked with addressing a dispute arising from the alleged involvement of the defendant in a joint criminal enterprise, specifically related to the murder of an individual. The matter was heard in the Supreme Court of Victoria, reflecting the gravity and complexity of the criminal proceedings involved. The prosecution sought to introduce various pieces of evidence, including statements made by the defendant to the police and audio-visual recordings of his interviews, to establish his culpability in the crime. The defendant, in turn, contested the admissibility of these materials, arguing that their introduction would result in significant unfairness and prejudice to his case.

The court was required to navigate several legal issues, central to which was the admissibility of prior inconsistent statements made by the defendant, as well as the audio-visual recordings of his interviews, under sections 38, 60, 135, 136, 137, and 192 of the Evidence Act 2008 (Vic). A critical consideration was whether the probative value of these materials outweighed any prejudicial effect they might have on the fairness of the trial. Furthermore, the court had to determine whether the prosecution's right to cross-examine the defendant, as provided for under section 38 of the Act, was sufficiently compelling to overcome any prejudice that might be occasioned by the admission of the contested evidence.

In its reasoning, the court meticulously weighed the statutory provisions and judicial precedents that govern the admissibility of evidence in criminal trials. It concluded that the probative value of the contested materials substantially outweighed any prejudicial effects, thereby upholding their admissibility. The court found that the evidence was crucial in establishing the defendant's involvement in the joint criminal enterprise and his role in the commission of the murder. It also held that the prosecution's right to cross-examine the defendant was not unduly prejudiced by the admission of the evidence, as the fairness of the trial could be adequately preserved through appropriate judicial direction and control. The court's decision thus allowed the contested evidence to be presented to the jury, facilitating a comprehensive assessment of the defendant's guilt.

The final orders of the court affirmed the admissibility of the statements made by the defendant to the police and the audio-visual recordings of his interviews. This ruling was pivotal in ensuring that the trial could proceed with all relevant evidence being considered by the jury. The court's decision underscored the importance of balancing the rights of the accused with the need to uncover the truth in criminal proceedings, particularly in cases involving serious offences such as murder.

Orders