Hector Stewart (a pseudonym)[1] v The Queen
[2018] VSCA 128
•18 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0058
| HECTOR STEWART (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 May 2018 |
| DATE OF JUDGMENT: | 18 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 128 |
| JUDGMENT APPEALED FROM: | DPP v [Stewart] (Unreported, County Court of Victoria, Judge Lacava, 15 March 2018) |
---
CRIMINAL LAW – Interlocutory appeal – Aggravated home invasion – Application for leave to appeal against routine evidentiary ruling – Applicant sought exclusion of 2 items of circumstantial evidence – Whether evidence relevant – Whether probative value outweighed by danger of unfair prejudice – Judge ruled evidence relevant and probative value not outweighed by danger of unfair prejudice – Judge’s ruling correct – Application for leave to appeal refused – Evidence Act 2008, ss 55, 135 and 137.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Casey | Greg Thomas, Barrister and Solicitor |
| For the Respondent | Mr B Walmsley QC | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
The applicant is facing a number of charges in the County Court, including one charge of aggravated home invasion alleged to have been committed on 21 January 2017.
Following the empanelling of a jury, the applicant sought to have two pieces of evidence excluded from the Crown case, namely:
·the finding in a stolen motor vehicle (‘the vehicle’) of an empty bottle of a prescription drug bearing the applicant’s name (‘the bottle’); and
·a palm print, subsequently identified as belonging to the applicant, located on the outside rear passenger window of the vehicle (‘the palm print’).
Following argument, the judge ruled that the bottle and the palm print were admissible.[2] In ruling the bottle and the palm print admissible, the judge also rejected submissions made by the applicant that the evidence should be excluded pursuant to ss 135 and 137 of the Evidence Act 2008.
[2]DPP v [Stewart] (Unreported, County Court of Victoria, Judge Lacava, 15 March 2018) (‘Reasons’).
Following further argument, the judge certified under s 295(3) of the Criminal Procedure Act 2009 that his decision concerned the admissibility of evidence that, if ruled inadmissible, would eliminate or substantially weaken the prosecution case[3] and that the applicant was not at fault in failing to identify the issue that is the subject of the proposed appeal before trial.[4]
[3]See s 295(3)(a).
[4]See s 295(3)(c)(ii).
The applicant’s proposed ground of appeal is a composite ground in the following terms:
Where the prosecution does not allege that [the applicant] arrived at the crime scene in the stolen vehicle:
(a)The trial judge erred in concluding that the evidence of the finding [the bottle] in [the vehicle] was relevant to the applicant’s presence at the time of the alleged offending or, in the alternative, in failing to exclude the evidence pursuant to s 137 of the Evidence Act 2008.
(b)The trial judge erred in concluding that the evidence of the applicant’s fingerprint on the exterior of [the vehicle] was relevant to the applicant’s presence at the time of the alleged offending or, in the alternative, in failing to exclude the evidence pursuant to s 137 of the Evidence Act 2008.
The Crown case
The Crown alleged that the applicant and three co-offenders came to the home at which the offending occurred at about 3:15 am on the morning of 21 January 2017. Shortly before they arrived, two cars were seen on CCTV footage driving slowly past the home. One of the cars was the vehicle.
A minute or so after the cars passed the home, the lights on the front porch lit up. CCTV footage then depicts four people standing at the front door wearing hoodies: one was holding a firearm and another was holding a baseball bat. The front door was kicked in. The offenders entered the home and committed further offences. Subsequently, three of the offenders left the home via the front door. The remaining offender, who was wearing a grey hoodie, left the premises by climbing over the back fence.
Police attended the scene. A short time later, the vehicle was found. It had crashed into a tree and was empty. A grey hoodie was found, approximately 80 metres from the rear fence of the home.
The vehicle was stolen on 16 or 17 January 2017. Upon an examination of the vehicle, the bottle was found in the rear passenger footwell. The applicant’s right palm print was subsequently found on the outside of the back left passenger window.
A DNA sample was taken from the inside surface of the back of the collar region of the grey hoodie. DNA testing links the applicant to the grey hoodie.
The Crown case against the applicant is a circumstantial one. The applicant does not dispute that the vehicle was used by the offenders in the events of 21 January 2017 at the home. Strands of the Crown’s circumstantial case include:
·the observation of the offender who departed over the back fence wearing the grey hoodie;
·the location of the hoodie some 80 metres away, which is said to give rise to an inference that it was purposefully abandoned by its wearer to avoid detection;
·the detection of the applicant’s DNA within the interior neck region of the covered grey hoodie; and
·the connection of the applicant to the vehicle, by the finding of the bottle and the applicant’s palm print.
The judge’s ruling
In his ruling, the judge concentrated on the admissibility of the bottle. The judge recorded the applicant’s submission that ‘the bottle being a mobile object alone is probative of nothing absent evidence as to how the bottle came to be in the vehicle’.
In ruling that the evidence sought to be excluded was admissible, the judge said:
I would allow the evidence to be led on the basis that, in my view, it was probative of the fact in issue in this trial or one of the facts in issue in this trial, namely whether or not the accused [Stewart] was in the vehicle, and they assist the jury with the other evidence in concluding that he was. In my view, the evidence, when taken with the other circumstantial evidence, is probative of that issue.
The jury will be told the evidence goes in that it is just one piece of circumstantial evidence.
During the course of his ruling, the judge discussed the issue of whether the particular prescription drug identified on the label of the bottle might itself be prejudicial. The judge accepted that there may be some prejudice if the drug was identified, but concluded that any such prejudice could be ameliorated by appropriate directions. That said, the Crown accepts that it is not necessary to identify the particular drug. The Crown only seeks to lead evidence of the bottle with the applicant’s name on it, so as to link the applicant to the vehicle at the time of the offending.
Applicant’s contentions
The applicant submitted that the evidence concerning the bottle and the palm print was not relevant because it could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue at trial.[5] Additionally, the applicant submitted that the judge erred in not excluding these pieces of evidence under either s 135 or s 137 of the Evidence Act.
[5]See s 55(1) of the Evidence Act.
As to the bottle, the applicant submitted:
·The bottle was empty and is a movable object. The date on the bottle was four days before the offence. Its presence in the vehicle said nothing about how it came to be in the vehicle, nor the timing of when it came to be in the vehicle.
·The presence of the bottle did not indicate that the applicant had been in the vehicle. There is no evidence that the applicant had been prescribed the drug identified on the bottle. There were numerous items found in the vehicle that were not connected with the alleged offending, or any co-accused.
·The bottle is not logically relevant to a fact in issue as it requires the jury to engage in speculation about how and when the bottle came to be in the vehicle. There are other rational explanations for the presence of the bottle in the vehicle other than the applicant having been in or associated with the vehicle on 21 January 2017. The bottle only reveals a connection between the bottle and the vehicle. It cannot rationally affect the assessment of the circumstantial case of identification. The bottle does not render it any more likely that the applicant was present on 21 January 2017.
·The probative value of the bottle is at most slight, and the evidence may have an appearance of persuasive force out of all proportion to its actual probative value.
·The prejudicial effect of the name of the drug on the bottle cannot be ameliorated by not leading the evidence of the name of the drug. Without the name of the drug in evidence, there is an inability to properly test the evidence — including by reference to whether or not the applicant ever had a prescription for the relevant drug.
The applicant made similar submissions in relation to the palm print. It was submitted that it would be speculation to use the palm print to show an association between the applicant and the vehicle on 21 January 2017 (as opposed to sometime in the four days before the offending). The palm print does not render it any more likely that the applicant was present on 21 January 2017.
As to ss 135 and 137 of the Evidence Act, the applicant submitted that there was unfair prejudice that arose from the admission of the evidence of the palm print. The applicant identified the unfair prejudice as being speculation as to when and in what circumstances the applicant came into contact with the vehicle, speculation as to whether the applicant knew that the vehicle was stolen and ‘propensity reasoning’. Again, the applicant submitted that the probative value was, at most, slight and that the evidence may have an appearance of persuasive force out of all proportion to its actual probative value.
Analysis
The applicant’s submissions are without substance. The palm print and the bottle found in the vehicle are plainly relevant as part of the circumstantial case against the applicant that he was involved in the home invasion on 21 January 2017. It does not matter that the Crown is not in a position to say which of the two vehicles the applicant arrived in at the home before the offending. The judge was plainly correct to regard the bottle and the hand print as satisfying the test of relevance in s 55 of the Evidence Act.
Turning then to the risk of unfair prejudice, we again see no issue with the judge’s conclusions. Having concluded that he would not exclude the evidence of the bottle pursuant to s 135 or s 137 of the Evidence Act, it was plain that the evidence of the palm print would not be excluded under either of those sections. Moreover, there is nothing in the applicant’s contentions that the jury might misuse the evidence of the bottle or the palm print by attributing to it greater weight than that evidence might properly deserve. In any event, any such risk is well capable of being dealt with by appropriate directions to the jury.
The Crown does not seek to lead the name of the drug on the bottle. The applicant contends that the name of the drug itself would cause prejudice. Moreover, the applicant contends that in order to test the evidence it will be necessary to reveal the name of the drug. Accepting that there may be some prejudice caused by an identification of the prescribed drug, we agree with the judge’s conclusion that any such prejudice is well-capable of being remedied by appropriate directions.
Finally, as to the risk of the jury engaging in propensity reasoning, any such risk is, again, well-capable of amelioration by appropriate directions from the trial judge.
For the reasons given above, we are not persuaded that the judge made any error in ruling the palm print and the bottle admissible. To the contrary, we think the judge was entirely correct in ruling the bottle and hand print admissible as part of the Crown case.
Conclusion
The application for leave to appeal will be refused.
- - -
0
0
0