DPP v Vallance
[2007] VSC 99
•2 April 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1518 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN GEOFFREY VALLANCE |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 APRIL 2007 | |
DATE OF RULING: | 2 APRIL 2007 | |
CASE MAY BE CITED AS: | DPP v VALLANCE | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 99 | |
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Criminal law – evidence – whether a warning should be given to jury that it would be dangerous to convict accused of stabbing on evidence of unreliable witness – held that it would not be dangerous to convict the accused on the basis of witness' evidence nor that witness is necessarily to be regarded as an unreliable witness - discussion of Faure's case – whether witness has a special interest in the case in the sense referred to in Faure's case due to witness’ past violence towards the victim – no evidence that the witness stabbed the victim – Judge required to emphasise matters relating to admitted dishonesty coupled with a warning that the jury must scrutinize witness’ evidence with particular care but further warning not required.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Dane QC | Solicitor for Public Prosecution |
| For the Accused | Mr J Desmond | Doogue & O’Brien |
HIS HONOUR:
Mr Desmond has submitted that I should give a further warning to the jury and direct them in terms to make it plain that it could be dangerous to convict the accused man on the basis of Ms O'Neill's evidence and that she should be regarded as an unreliable witness.
The underlying principles relevant to this issue are stated by Gibbs CJ in Bromley v R[1] and by the Court of Criminal Appeal in Faure v R:[2]
"What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is 'Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?' There is nothing formal or technical about this rule.”[3]
“While no particular formula is appropriate, a warning in a case such as the present should be one which is given by way of a direction to the jury from the trial judge and with the force of his authority. It should be more than a general comment about the need to scrutinise evidence of important witnesses carefully. It is not sufficient that counsel have put the matters in argument which raise the considerations relevant to the assessment of tainted witnesses and that such arguments are repeated by the judge. Nor is it sufficient to say that care and careful scrutiny are desirable as a matter of common sense.
The warning should include a reference by the judge to matters of significance which are relevant to the assessment of the evidence of such witnesses. The jury's attention should be drawn to the dangers inherent in such evidence and at least to the desirability, if not the need for, the search for supporting material.
What warning is appropriate and adequate depends on the circumstances of the particular case. The stronger the warning given with the authority of the judge and the more it deals with the specific factors which affect the evidence of the tainted or potentially unreliable witness, the more confidence exists that the jury has considered those matters in reaching its verdict and the further any risk of a miscarriage of justice is reduced. That, after all, is a most important consideration and one which has moved the courts to extend the requirement of judicial warnings beyond the cases involving accomplices to cases involving prison informers, identification evidence, disputed confessions by people in custody to police officers, mentally disabled witnesses and other cases in which the witness is significantly tainted or for some other reason the evidence is inherently unreliable."[4]
[1](1986) 161 CLR 315.
[2][1993] 2 VR 497.
[3]Bromley v R (1986) 161 CLR 315 at 319. Citations omitted.
[4]Faure v. R [1993] 2 VR 497 at 504.
I do not accept that it would be dangerous to convict the accused on the basis of Ms O'Neill's evidence or that she is necessarily to be regard as an unreliable witness. She does not fall within one of the categories which the experience of the law requires to be so categorized. Moreover, I am satisfied that it is open to the jury, having regard to the evidence as a whole, to accept that her evidence is accurate and reliable as to the critical question in this case: did Vallance stab Pedler?
Nevertheless, as a consequence of her prior criminal convictions for dishonesty in respect of a variety of property offences, and of the self‑confessed initial lie to police at the scene that she did not see the stabbing of Pedler, it is, in my view, appropriate to warn the jury that by reason of those matters they must scrutinise her evidence with particular care. This I have done in terms which I regard as sufficient to avoid any risk of unfairness to the accused and to avoid the risk of a miscarriage of justice.
Mr Desmond makes his application, not only in reliance upon the two factors that I have specified, but also upon the basis that O'Neill admits that within the previous nine months prior to the attack on Pedler, she ran Pedler down with a car at premises in Coburg, when she lost control following violent abuse inflicted upon her in the course of his alcoholism.
It is the defence case that the jury should not be persuaded that the accused was present at the time of the stabbing of Pedler and that it is a reasonable possibility that O'Neill stabbed Pedler. I must say I find this thesis highly improbable and I do not accept there is evidence showing O'Neill has a special interest in the case in the sense referred to in Faure's case. The defence thesis is advanced in the absence of any evidence that O'Neill, in fact, stabbed Pedler, and one may compare Faure's case, where the accused man gave evidence that the witness had herself confessed to the killing.
The defence thesis is advanced in the present case in the absence not only of any evidence from the accused, but also of any evidence of an alibi, and in the absence of any evidence from Ron Connors, the man at whose flat in which the stabbing occurred. Connors is, on the evidence, a friend of the accused who required Pedler to be picked up when severely wounded and taken down from his flat to the pavement outside in order for Pedler to be collected by the ambulance men. It may also be inferred from the forensic evidence that he went to some lengths to attempt to clean Pedler's blood from his living room, and I should add that two of the accused's identity cards were subsequently found in the bedroom within Connors' flat.
I would add, although I do not place any particular weight upon the fact, Mr Connors was present in court for most of the trial. He was not called by the Crown because the Prosecutor has formed the opinion that he would not be a witness of truth.
Although there might be argument about the significance of some of the contextual matters I have mentioned, the critical fact is that there is in this case simply no evidence from the accused, or from anyone else, to the effect that it was O'Neill who stabbed Pedler, and in my view, reliance on the prior incident in North Coburg is reliance upon an incident so remote from the present case that it is of no probative weight.
I would also add that even if regard is had, not to the contextual circumstances to which I have referred, but simply to the evidence in the case, I am not of the view that it is at all probable O'Neill stabbed Pedler. I have formed that view, not only in reliance upon the matters put by Mr Dane to the jury, but also upon other circumstances, and I instance the conduct of O'Neill in wearing an obviously bloodstained top when photographed by police two days after the stabbing. It is, however, obviously not appropriate for me to purport to analyse the whole of the evidence for the purposes of this ruling. I would simply say that I am not satisfied by the evidence that there is anything inherently improbable in O'Neill's account. It will ultimately be for the jury to weigh up the evidence as a whole against a series of detailed circumstances.
Having said this, there are, as Mr Desmond has submitted to the jury, a whole series of reasons why the jury might not be persuaded beyond reasonable doubt of the accuracy of O'Neill's evidence and it would not, of course, be necessary to accept the hypothesis that O'Neill may have been the stabber, to reject the Crown case. It may be that the jury simply cannot be satisfied of what happened to the requisite standard of proof because of one or other or more of the deficiencies in the evidence that Mr Desmond has highlighted.
It may also be, for example, that the jury may itself hypothesize that O'Neill has not identified the true stabber because he, the true stabber, was a violent man, dangerous to both the safety of herself and her family, just as she told the jury, the people in the flat at the time of the stabbing were.
Ultimately this case will, as both counsel have submitted to the jury, rise and fall on the quality of O'Neill's evidence. That quality falls to be assessed within the matrix of matters which I have sought to summarise in my charge and which Mr Desmond has eloquently highlighted from the defence point of view.
Whilst I am of the view that the matters relating to admitted dishonesty have required emphasis by me, coupled with a warning that the jury must scrutinize O'Neill's evidence with particular care, I am not persuaded that a fair trial requires me to go beyond this, and I so rule.
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