R v Barrett
[2005] VSC 31
•20 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE CRIMINAL DIVISION |
No. 1448 of 2004
THE QUEEN
v
ROBERT CLIFFORD BARRETT
---
| JUDGE: | WHELAN J |
| WHERE HELD: | Melbourne |
| DATE OF RULING: | 20 May 2005 |
| CASE MAY BE CITED AS: | R v Barrett (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2005] VSC 31 |
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Leckie SC with | Kay Robertson, Solicitor for |
| Mr J Kelly | Public Prosecutions | |
| For the Defence | Ms C Randazzo SC | Victoria Legal Aid |
| HIS HONOUR: |
On 14 February 2005 I heard argument in the absence of the jury on two foreshadowed applications by Ms Randazzo SC on behalf of the accused. The first application was that I should question the prosecutor in order to discover his reasons for not calling Mrs Florence Barrett and Mr Robert Barrett senior, the accused’s parents, as witnesses and, if he persisted in that position, that I should call those witnesses myself. The second application was that I should direct the jury to acquit on the basis that the accused has no case to answer.
Argument was heard during the morning of 14 February as it had been anticipated that the prosecution would have called all the evidence it intended to call by then. As Ms Randazzo wished to have two prosecution witnesses recalled, that did not transpire to be the case. The course I adopted was to hear submissions on these matters in the morning. After lunch the Crown recalled the two witnesses, as Ms Randazzo had requested. In the absence of the jury I then dealt with the application concerning the accused’s parents. Ms Randazzo indicated she had no submissions to add to those made in the morning. I then ruled that I would not take any step at that stage in relation to Mr and Mrs Barrett, either by further enquiry of the prosecutor or by calling them myself, and said I would give reasons later. The Crown case was then closed before the jury. In the absence of the jury, Ms Randazzo then supplemented the no case submissions she had made in the morning. I also ruled against that application and I again indicated that I would give reasons later.
Application concerning accused’s parents
In relation to the application concerning the accused’s parents, Ms Randazzo firstly outlined the potential relevance of their evidence. In essence, the submission was that it was likely they could give relevant evidence of the events during the days immediately prior to the deceased’s death. In particular, Ms Randazzo referred to the circumstances in which the deceased suffered the subdural haematoma, the deceased’s refusal to have an ambulance called, and the accused’s demeanour over the days in question. Ms Randazzo also said that Mrs Barrett might have relevant evidence to give concerning the accused’s mental history and the nature of the relationship between the deceased and the accused. Ms Randazzo submitted that the prosecutor must call these witnesses if he is to fulfil his duty to conduct the case fairly. She submitted that one course he could take would be to simply make them available for cross-examination.
Ms Randazzo then submitted that, if the prosecutor persisted in his refusal to call these witnesses, then exceptional circumstances existed warranting, or requiring, me to call them. The circumstances were said to be:
1. The clear relevance and importance of their evidence.
2. A fair hearing necessitates them being called.
3. The prosecutor had opened to the jury that Mrs Barrett was in the house in the days prior to the deceased’s death.
4. Mr Barrett senior had not been approached to make a statement since 19 June 2003.
5. Mrs Barrett had never been interviewed.
6. The accused’s record of interview is unfair to him as the accused was never given an opportunity to respond to the suggestion of an injury causing the subdural haematoma within 24 hours of death.
7. The only alternative is for the defence to call Mr and Mrs Barrett and the jury may never see them if they establish a valid claim to privilege against self-incrimination on a wide scale.
Senior Counsel for the prosecution, Mr Leckie SC, submitted in response that he did not propose to call either parent as a witness. His submissions were in large part an exposition of his reasons for that course. In substance, those reasons were said to be that each is and was regarded as a suspect, the possible offence being concealment under s 325 of the Crimes Act 1958; that neither have given statements and Mrs Barrett has made it clear she will say nothing to the police if interviewed; that they have never been witnesses on the Presentment and have never been part of the Crown case; that he has formed the view that answers given by Mr Barrett to police when he was interviewed are not credible; that he has formed the view Mrs Barrett was participating in what he described as a “charade” during the 000 call made by the accused; and that, generally, the Barrett parents have in his view chosen a course of protection of their son and concealment of his crime. He also referred to the evidence already given of statements by Mrs Barrett to one of her daughters as a further indication of her endeavours to conceal the crime. He submitted that the accused had been given a full opportunity to comment on the circumstances leading up to the death of the deceased and referred in that respect to questions 112-114 of the accused’s record of interview.
Both Mr Leckie and Ms Randazzo asked me to read Mr Barrett senior’s record of interview and I have done so.
Counsel for Mrs Florence Barrett, Mr Brown, was heard on the application, and he submitted that, if I called her, grave difficulties would be faced as I might then be compromised in relation to questions of self-incrimination.
The relevant principles to be applied are set out in R v Apostilides. [1]
[1] (1984) 154 CLR 563 at 575.
The decision whether a person should be called as a witness is a decision for the prosecutor. I can question him in order to discover his reasons. Here, he has given his reasons in the course of his submissions. I am not called upon to adjudicate the sufficiency of those reasons. I do not intend to take the matter any further.
As to the suggestion I should call these witnesses, that course could be taken only in the most exceptional circumstances. The circumstances to which Ms Randazzo has referred are not exceptional, or are not sufficiently exceptional, to justify this course. The potential relevance of their evidence is not an exceptional circumstance. The prosecutor’s opening was consistent, it seems to me, with the accused’s statements in his record of interview. The fact that no statement by either witness exists seems to me to reinforce the need for caution rather than to encourage the bold step of calling the witnesses myself. I cannot see any aspect of the accused’s record of interview that gives rise to exceptional circumstances. I will not take the course suggested.
No case submission
The second matter to be dealt with is the no case submission.
In this respect, Ms Randazzo made the following submissions:
1. She submitted there was no evidence upon which the Crown could rely to establish that the accused caused the death of the deceased. She relied upon Doney v R. [2]
[2] (1990) 171 CLR 207.
2. She submitted that, in so far as the Crown case was characterised as circumstantial, then even if all the Crown evidence were accepted and all the inferences reasonably open were drawn in the Crown’s favour, a jury could not exclude a number of hypotheses consistent with innocence. She submitted that these were:
(i)
that no injuries had been caused by the accused at all. Upon exploration this was in fact a repetition of the first submission;
(ii)
the accused had assaulted the deceased, but that those injuries did not produce the subdural haematoma and that subsequent to his attack there had been an ingestion of tramadol, causing drowsiness and a fall which in turn did produce the subdural haematoma; and
(iii)
the deceased had been assaulted by the accused on Saturday but thereafter she had accidentally fallen and sustained the subdural haematoma. The tramadol was then administered to her after that fall.
As a result of an enquiry from me, Ms Randazzo submitted that the principles as summarised and applied by Justice Kaye in R v Dupas (Ruling No 6)[3] were accurate and correct.
[3] [2004] VSC 287.
Ms Randazzo referred me to a number of passages in Dr Lynch’s evidence and I have reviewed the passages to which she referred. She submitted that, on the basis of Dr Lynch’s evidence, the blow that caused the subdural haematoma must have been suffered within the 24 hours prior to death. She submitted that there was no evidence of any relevant act of the accused in this period.
Mr Leckie, in response, also relied on Doney v R, and referred to Attorney-General’s Reference (No 1 of 1983).[4] He submitted that there was evidence upon the basis of which the jury could properly conclude that the accused had caused the death of the deceased. He referred to the following evidence:
[4] [1983] 2 VR 410.
• The evidence that the accused and the deceased were both apparently without
injury when in St Kilda in the early hours of Saturday morning.• The evidence that the deceased was dead on Wednesday, in an appalling
condition, in the house occupied by her and the accused.• The evidence indicating that the accused was at the house between Saturday
and Wednesday.• The evidence as to the violent relationship between the accused and the
deceased, which he submitted was relevant to motive, to identity and to
negating the suggestion of an accident.
•
The evidence of the accused’s admissions to the police (led in evidence in this proceeding by consent) and the fact that in these discussions no excuse or explanation for the injuries was advanced by the accused.
• The evidence that the deceased had suffered the fatal assaults over a period
and that the injuries showed different signs of aging.• The nature of the injuries suffered by the deceased including cuts, bruises,
bites and broken bones.•
The location of possible weapons, being pieces of stick and a knife, variously under the bed in the bedroom of the accused and the deceased and in the rubbish bin, and the evidence connecting both the accused and the deceased with those objects by DNA analysis.
• The evidence as to the bloodstains and in particular the spatter stains in two
different areas of the bedroom.•
The evidence that the prosecutor submits amounts to consciousness of guilt, and, in particular, evidence of what is said to be a lie told to the 000 operator to the effect that the accused had been assaulted in St Kilda, and the evidence of cleaning in the flat.
He submitted that all of these pieces of evidence can be looked at together and an inference could properly be drawn that the accused is responsible for all the injuries suffered by the deceased.
He then addressed the issue, which he referred to as “intervention”, being the suggested hypotheses of a fall and the presence of tramadol.
He submitted that the jury, on the evidence, could reject the suggestion that there had been a fall. He then submitted that even if the jury did not reject the suggestion that there had been a fall, the jury could find that the accused’s acts were the cause of the fall.
In relation to the presence of tramadol in the accused’s system, Mr Leckie submitted that the jury would have to accept that tramadol was present. He submitted, however, that the jury might properly find that the tramadol was present as a result of acts of the accused and he submitted that, in any event, the presence of tramadol did not break the chain of causation. He referred to Dr Lynch’s evidence that the cause of death was multiple injuries with possible contribution from tramadol and other drugs.
In response, Ms Randazzo, amongst other submissions, referred to the fact that the admissions made could not be characterised as admissions that the accused had been the cause of death. She submitted that at its highest it was an admission that he was responsible for at least some of injuries.
On an application of this kind it seems to me that the relevant test is that expressed by Justice Kaye in R v Dupas.[5] Justice Kaye said:
“[T]he test for me is whether a reasonable mind, in other words a reasonable jury, could reach the conclusion that any inference consistent with innocence was not reasonably open on the evidence. In applying that test it is important for me to bear in mind that the drawing of inferences is essentially the province of the jury as the sole judges of fact.”
[5] R v Dupas (Ruling No 6) [2004[ VSC 287 at [23].
The submission that there is no evidence upon which the Crown can rely to establish that the accused caused the death of the deceased, to the extent that it was thereby submitted that there was no evidence that the accused had caused injuries to the deceased, is, in my view, quite untenable. I refer to the circumstances set out by the prosecutor without repeating them.
I also reject the submission that there are hypotheses consistent with innocence that it would not be open for the jury to reject. Each of the hypotheses essentially revolves around the issues of causation. The question of cause is not a philosophical or scientific question but a question to be determined by the jury applying their commonsense.[6] It is not necessary that the accused’s acts be the sole cause or even the main cause of the victim’s death, it being enough that his acts contributed significantly to that result[7] or were an operating cause and a substantial cause of the victim’s death.[8]
[6] R v Moffatt (2000) 112 A Crim R 201 at 212-213; [2000] NSWCCA 174 at [69].
[7] R v Pagett (1983) 76 Cr App R 279 at 288.
[8] R v Moffatt (2000) 112 A Crim R 201 at 213; [2000] NSWCCA 174 at [70], citing Royall v R (1990) 172 CLR 378; R v Evans & Gardiner (No 2) [1976] 2 VR 523 at 529, citing R v Smith [1959] 2 QB 35; and R v Rudebeck [1999] VSCA 155 at [66] per Ormiston JA.
In relation to what I might call the “fall hypothesis”, on the current state of the evidence, it seems to me to be reasonably open to the jury to reject the hypothesis of a fall. There is no evidence of a fall. Dr Lynch could not discount it as a possible cause of injury but that is as high as the matters goes. The accused did not refer to any fall in his statements to police which the prosecutor contends are admissions. In any event, it seems to me that, applying the principles of causation to which I have referred, the jury could properly reach the conclusion that, even if there was a fall, the accused’s acts were still a substantial and operating cause of the death. It is open to the jury to conclude that the accused’s acts were the cause of any fall, or that any fall did not relevantly so overwhelm the injuries for which the accused was responsible that it could be said that they were merely part of the history or the setting in which a new cause (the fall) operated.[9]
[9] See R v Evans & Gardiner (No 2) [1976] 2 VR 523 at 529, citing R v Smith [1959] 2 QB 35 at 42-43.
Similarly, in relation to the presence of tramadol, it seems to me that the jury could properly find that it was the accused’s acts that relevantly caused the presence of tramadol in the deceased’s system. Further, it seems to me to be open to the jury to conclude that the presence of tramadol in the deceased’s system does not mean that injuries suffered as a result of acts of the accused were no longer a substantial and operating cause of death. In this respect I refer to the evidence of Dr Lynch as to the cause of death (T 384 in examination-in-chief and T 436-437 in cross-examination).
The application is dismissed.
---
0
7
0