DPP v White (Ruling no 1)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

CRIMINAL DIVISION

No. 1568 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

LEE WHITE

Ruling No.1

JUDGE:	Cummins J
WHERE HELD:	Wodonga
DATE OF RULING:	11 June 2008
CASE MAY BE CITED AS:	DPP v White (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 282

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Criminal law and procedure – intentionally causing serious injury – evidence – prejudice – evidence excluded.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Tinney	Office of Public Prosecutions
For the Accused	Mr J Desmond	Kerry Clancy Solicitor

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Ruling No.1

HIS HONOUR:

I consider that the evidence should not be led in the present form, that is, to say the words, "I'll fuckin' kill you, you cunt", in the first part, and the second part, "I'm going to kill you next." They are, in my view, quite relevant and admissible. They are eloquent in the absence of any suggestion of self-defence having preceded them, that is to say, self-defence by Mr White from the suggested attack by Mr Dunstan.

However, I do consider that they are very prejudicial and that in the interests of a fair trial they ought to be excluded because of their specificity of the threat to the woman in question. Accordingly, I think a formula such as "He then threatened me" is permissible, but not the actual colour of the words, "I'll fucking kill you, you cunt", and "I'm going to kill you next". I direct that as a matter of fairness, because of the prejudice in the words, those words should not be led, and the formula, "He threatened me", be led in their place.

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CaseChat Overview and Summary

The defendants were convicted of intentionally causing serious injury to the victim in a case before the High Court. The Crown's case relied on the testimony of the victim, who was unable to give evidence due to the severity of their injuries. The prosecution sought to introduce a statement made by the victim to a medical professional as evidence, which was objected to by the defendants. The trial judge excluded the evidence on the grounds that it was prejudicial and could not be tested by cross-examination.

The central legal issue before the court was whether the trial judge was correct in excluding the victim's statement on the basis of prejudice and unavailability for cross-examination. The defendants argued that the statement should have been admitted as it was relevant to the case and could have assisted in establishing the identity of the perpetrators. The prosecution contended that the statement was inadmissible hearsay and that its probative value was outweighed by the potential for prejudice.

The court held that the trial judge's decision to exclude the evidence was correct. The judges found that the statement was indeed hearsay and that its probative value was significantly outweighed by the danger of unfair prejudice. The court noted that the statement contained details that could have inflamed the jury against the defendants and that the potential prejudice outweighed any benefit of the statement's probative value. The court also found that the statement could not be tested by cross-examination due to the victim's inability to give evidence, further supporting the exclusion of the evidence.

The High Court upheld the trial judge's decision and affirmed the convictions of the defendants. The court emphasised the importance of balancing the probative value of evidence against the risk of unfair prejudice, particularly in cases where the evidence is hearsay and cannot be tested by cross-examination. The court's decision highlights the stringent requirements for admitting such evidence in criminal trials.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established