R v Arnott

[2006] VSC 515

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1510 of 2005

THE QUEEN

v

RUSSELL LAURENCE ARNOTT

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF RULING:	27 December 2006
CASE MAY BE CITED AS:	R v Arnott
MEDIUM NEUTRAL CITATION:	[2006] VSC 515

CRIMINAL LAW – Murder - Application for discharge of jury -

Reliance upon various aspects of prosecution closing address.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rose SC	Office of Public Prosecutions
For the Defendant	Mr J Desmond	Doogue & O’Brien
HER HONOUR:

1. Counsel for the defence has made an application for the discharge of the jury.

2. The first ground for the discharge application is the failure of the prosecutor to refer to the word "really" in the definition of the requisite intent for the crime of murder.

3. Counsel for the defence fairly said that he would be able to concede that, if this had been the only matter upon which he relied, it could be a problem rectified by a direction from the trial judge. I take that view, even in the context of the other matters upon which the defence has sought to rely, that is a matter I can deal with in my statement of the law to the jury.

4. Counsel for the defence has, secondly, invited the Court to discharge the jury on the ground that the prosecution invited the jury to speculate that the murder weapon was a weapon other than one of those about which there had been evidence. There had been evidence about weapons which were registered and the other weapons in the possession of the accused at any time.

5. I am persuaded by Mr Rose's submissions to the effect that the prosecution was entitled to say to the jury that the evidence indicated that the “Birmingham” weapon which was found was not the murder weapon, that none of the four registered weapons handed back was alleged to be the murder weapon and that, therefore, it was reasonable to infer that, if Mr Arnott had shot the deceased man, he did it with another weapon.

6. Counsel for the defence has further based his application for the discharge of the jury upon the prosecutor’s failure to mention the alternative verdict of manslaughter which, he will argue to the jury, is open on the evidence.

7. In my view, the failure of senior counsel for the prosecution to refer to manslaughter does not warrant the order sought. I will refer to manslaughter in detail in my charge and I will make it quite clear to the jury that they have the option of returning a verdict of manslaughter. I will do so in the context of the foreshadowed reference to manslaughter by counsel for the defence. I am not satisfied that there will be any unfairness, if I point out to the jury that the prosecution case is that it ought to return a verdict of murder and that the defence case is that, if the confession be believed by the jury, it would be appropriate to return a verdict of manslaughter.

8. Counsel for the defence finally submits that the jury should be discharged because senior counsel for the prosecution relied, in his closing submissions, upon the absence of evidence as to the source of Mr Arnott’s knowledge of the “long rifle” aspect of the calibre of the bullet used in the shooting of Mr Zigante. When Mr Rose foreshadowed that course, counsel for the defence applied for a ruling that he ought not be permitted to make such a submission, essentially because the matter had not been directly raised under cross-examination to give Mr Arnott the opportunity to state the source of his knowledge. That application was rejected and reasons for its rejection were given in a ruling on 22 December 2006.

9. Mr Desmond then applied for a discharge of the jury on the ground that senior counsel for the prosecution would do what was foreshadowed during his final address. I dismissed his application, as premature. Counsel for the defence indicated that he would renew his application after the prosecution’s final address, if events followed the expected course. He also foreshadowed an application to recall the accused man for further re-examination on the point after the prosecution address. He declined to make such an application before that address and has not subsequently done so.

10. Counsel for the defence submits that it would be unfair to the accused man for the trial to continue in all the circumstances. His previous application for a ruling that the prosecution be prevented from relying upon the absence of evidence as to the source of knowledge of the “long rifle” characteristic of the calibre of the .22 bullet was based upon the unfairness to the accused of such a course. That application was rejected.

11. I consider that the substance of the present application was dealt with in the course of my ruling permitting senior counsel for the prosecution to make the arguments he sought to put to the jury. Given the concession by the defence that senior counsel for the prosecution has done no more than adhere to his foreshadowed course, I take the view that there is no unfairness to the accused man which would warrant the discharge of the jury at this point.

12. In my view, counsel for the defence has not established that there is the requisite high degree of need for the discharge of the jury[1].

    [1]              See: R v Harrison [1957] VR 117 at 125 per Barry J.

13. I refuse the application.

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