DPP v White (Ruling no 2)

[2008] VSC 283

IN THE SUPREME COURT OF VICTORIA
CRIMINAL DIVISION		Not Restricted

No. 1568 of  2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE WHITE

Ruling No. 2

JUDGE:	Cummins J
WHERE HELD:	Wodonga
DATE OF HEARING:	12 June 2008
DATE OF RULING:	12 June 2008
CASE MAY BE CITED AS:	DPP v White (Ruling No.2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 283

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Criminal law and procedure – intentionally causing serious injury – evidence – consciousness of guilt – R v Chang (2003) 7 VR 236; Nguyen (2001) 118 ACrimR. 479.

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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. 2

HIS HONOUR:

1. Learned counsel, Mr Tinney, for the prosecution, has sought at the conclusion of the evidence as presaged by his Final Directions Notice of 3 June 2008, p.3, that he seeks to rely upon certain matters of fact for certain doctrinal purposes.  As a matter of convenience, I will take them in turn from p.3 of his Notice, which course he followed during oral submission before me.

1. The prosecution first seeks to rely upon consciousness of guilt from flight.  I consider that that matter is clearly open to be put by the prosecution to the jury.  There is an amplitude of evidence upon the matter and in my view it is open to the jury to conclude that that flight is inconsistent with the statement of self-defence by the accused to the investigating officers in his interview of 24 January 2007 and physically is a classic instance of flight as contemplated in the authorities, including R v Chang[1].  Accordingly I rule that that is admissible for that purpose.

   [1](2003) 7 VR 236. See also Nguyen (2001) 118 A.Crim R 479.

1. As to the statements of the accused said to be lies in his interview of 24 January 2007, I consider that the first two dot points are, in law, capable of being relied upon by the prosecution as consciousness of guilt; that is the lies that the accused arrived at and departed from the scene on foot and the lies that the accused did not have a weapon with him at the scene, if the jury are satisfied that those are lies.  In my view, again, they are matters which fall within the general principle.  The arrival and departure on foot is not simply a matter of locomotion but rather is a pivotal statement in the general address of the accused to the police that he went there to collect his partner, Kylie, who had the money for a taxi and that that was his purpose in going there.  That is relevant to the question of whether he went there for an aggressive purpose or merely to collect the partner.

1. Likewise, having a weapon at the scene, is clearly a stand-alone matter of fact which the prosecution is entitled to rely upon, again consonant with his conduct and his intent.

1. However, I am not satisfied that the third and fourth dot point ought properly to be put before the jury in the doctrinal sense of consciousness of guilt.  Plainly those matters will be centrally litigated during final addresses, as the defence here is self-defence.  The prosecution will put to the jury that there is no evidence that Mr Dunstan attacked the accused with a knife and the defence will be putting that this a true case of self-defence from a knife attack by Mr Dunstan.

1. The arguments in relation to that matter are matters of some sophistication.  They are not as clear-cut as arriving and departing the scene on foot and not having a weapon at the scene.  The issues really are the kernel of the case.  There are arguments both ways which the parties, through their learned counsel, have touched upon this afternoon and will doubtless develop fully tomorrow.  But in my view I think it is undesirable when that is really the central issue in the case that a doctrinal matter should be grafted onto that central issue.

1. Likewise the sustaining of head injuries in an accidental fall.  While that does not have the complexity and sophistication of the third, this being the fourth issue, in my view, again, I think it is so central to the issues between the parties that it is undesirable to graft onto that central issue that the doctrinal question of consciousness of guilt.

1. For those reasons I consider the prosecution should not go to the jury and I so rule on dot points three and four of paragraph two, as consciousness of guilt.  The prosecution, of course, will be going to the jury strongly that the jury would reject those two assertions.  That is quite a different thing to the question of utilising them as a foundation for doctrinal conclusion.  Accordingly I rule that those two should not be left to the jury as a matter of consciousness of guilt but of course it will be matter of litigation from the Bar table.

1. Further, I consider that the parties should go to the jury - and I will direct them to this effect on Monday - that if the injuries were, or reasonably might have been, sustained by an accidental fall or a fall into a rubbish bin or a fall onto the concrete during a struggle, as distinct from being hit with a pole or weapon, the jury should acquit the accused.

1. Further, I consider that the statutory alternative should not go to the jury.  This is a clear case of a very serious injury and accordingly no statutory alternative should go to the jury.

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