JUDGE:	MAXWELL P
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2015
DATE OF RULING:	28 February 2015
CASE MAY BE CITED AS:	DPP v Scriven (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2015] VSC 220

CRIMINAL LAW – Evidence – Incriminating conduct – Post-offence conduct – Prosecution reliance on acts and statements by accused – Whether reasonably capable of being viewed as evidence of incriminating conduct – Application refused – DPP v Zhuang [2014] VSC 276 followed – Jury Directions Act 2013 ss 23-25.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams QC with Mr G Hayward	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Ms R Shann with Ms A Beech	Leanne Warren & Associates

MAXWELL P:

William Scriven is charged with the murder of Wayne Bayley on 22 December 2012, in a suburban street in Traralgon. It is not in dispute that Mr Scriven stabbed Mr Bayley, causing his death. Nor is it disputed that his actions were conscious, voluntary and deliberate.

The fatal stabbing occurred in the course of a fight between Mr Scriven and Mr Bayley, in the front garden of Mr Scriven’s house. What is in issue in the trial is whether, when he stabbed Mr Bayley, Mr Scriven:

(a) intended to kill him or cause him really serious injury; and

(b) if so, believed that it was necessary to do what he did in order to defend himself against death or really serious injury.

Before the commencement of the trial, the prosecution gave notice, in accordance with s 23 of the Jury Directions Act 2013 (‘the JDA’), of six items of evidence on which it proposed to rely as evidence of ‘incriminating conduct’, as defined in s 22 of the JDA. The notice identified the items in these terms:

1.Evidence that the accused said, after the altercation between himself and the decided, that he had been stabbed.
In particular that the accused said this to:
a)civilian and police witnesses when the accused was present at 8 Thexton Street, Traralgon
c)to a 000 operator who received a telephone call from the accused

d) to medical officers who treated his injuries.
2.Evidence that the accused laughed soon after the altercation between himself and the deceased.
3.Evidence that the accused changed his clothing after the altercation with the deceased.
5.Evidence that the accused’s kitchen area contained what appears to be blood.
6.Evidence that the knife referred to had water marks upon it and had been wiped.

In supporting submissions, the prosecution reformulated the categories as follows:

A.The accused telling people, after his altercation with the Deceased, that he had been stabbed.

B.        The accused laughing after the altercation.
C.       The accused changing his clothing after the altercation.
D.       Evidence that a knife was washed and concealed after the altercation.

The Crown case closed on 27 February, after…

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 Scriven (Ruling No 4)

Details

AGLC: Director of Public Prosecutions v Scriven (Ruling No. 4) [2015] VSC 220
Case: [2015] VSC 220
Decision Date: 28 February 2015

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions versus Scriven, Ruling No 4, was determined by the Supreme Court of Victoria. The defendant, Scriven, faced charges related to criminal conduct, and the prosecution sought to rely on certain post-offence conduct as evidence of incriminating behaviour. The primary issue before the court was whether the acts and statements in question were reasonably capable of being viewed as evidence of the defendant's involvement in the criminal activity, in accordance with the provisions of the Jury Directions Act 2013.

The court examined the relevant sections of the Jury Directions Act 2013, specifically sections 23 to 25, which outline the criteria for determining the admissibility of evidence of post-offence conduct. The prosecution argued that the defendant's conduct and statements were indicative of guilt, while the defence contended that they were not reasonably capable of being viewed as evidence of incriminating conduct. The court considered the principles established in the case of DPP v Zhuang [2014] VSC 276, which held that evidence of post-offence conduct is only admissible if it is reasonably capable of being viewed as evidence of incriminating conduct. Following this precedent, the court found that the prosecution's evidence did not meet the required threshold for admissibility.

In light of the above, the court held that the application to admit the evidence of post-offence conduct was to be refused. The reasoning was based on the fact that the evidence did not reasonably point to the defendant's involvement in the criminal activity. Consequently, the court determined that the evidence in question could not be presented to the jury as part of the prosecution's case. The final orders of the court reflected this decision, barring the prosecution from relying on the contested evidence during the trial.

Orders