R v Birchall
[2025] VSC 172
•28 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0198
| THE KING | Crown |
| v | |
| DANIELLE BIRCHALL | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 October 2024 |
DATE OF RULING: | 28 October 2024 |
DATE OF PUBLICATION | 4 April 2025 |
CASE MAY BE CITED AS: | R v Birchall |
MEDIUM NEUTRAL CITATION: | [2025] VSC 172 |
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EVIDENCE – Where prosecution served notice of incriminating conduct – Where notice relied on several items of alleged incriminating conduct – Where Item 3 (an alleged lie) was inaccurately drafted – Where prosecution opened its case based on that inaccuracy – Whether prosecution could amend notice shortly before it closed its case – Whether in the interests of justice to permit prosecution to serve revised notice of incriminating conduct – Jury Directions Act 2015 ss 8, 19, 20.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Thomas with R Champion | Office of Public Prosecutions |
| For the Accused | Mr C Pearson with Ms J Willard | Law and Advocacy Centre for Women |
Contents
BACKGROUND
Legislative Framework
Original Notice of Incriminating Conduct
Revised Notice of Incriminating Conduct
SUBMISSIONS
Prosecution
Accused
ANALYSIS
HIS HONOUR:
BACKGROUND
Danielle Birchall’s second trial[1] for the murder of Konstantinos Kritikos began on 7 October 2024. On 28 October 2024, the day before the prosecution closed its case, I ruled that I would permit the prosecution to file a revised Notice of Incriminating Conduct. I gave some brief reasons at the time for that ruling and said I would provide more detailed written reasons in due course. I do so now.
[1]Ms Birchall’s first trial in 2023 had to be aborted after a witness disclosed that the accused had previously been in prison.
Legislative Framework
All section references below are to the Jury Directions Act 2015 (Vic) (‘JDA’).
Section 8 permits a court, relevantly, to abridge any time fixed by the Act ‘if the court considers that it is in the interests of justice to do so’.
Section 19(1) provides that a notice of incriminating conduct must be filed at least 28 days before the day on which the trial is listed to commence. Section 19(3) permits a court to dispense with the notice requirements if:
(a) during a trial the prosecution first becomes aware of evidence of conduct that it proposes to rely on as evidence of incriminating conduct; and
(b) the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct; and
(c) it is in the interests of justice to dispense with those requirements.
Section 20 provides, relevantly, that evidence of alleged incriminating conduct is inadmissible unless (inter alia) ‘the prosecution has given notice in accordance with section 19’.
There is no provision in the JDA which expressly permits a court to allow the prosecution to amend a notice of incriminating conduct.
Original Notice of Incriminating Conduct
The prosecution’s original notice of incriminating conduct dated 26 April 2022[2] (‘the original notice’) relied on seven items as incriminating conduct, including:
[3] The accused lied to police when she told them she did not enter the deceased’s house and only spoke to him at the back door (Record of interview, Q&A 155-156 & 173-174)
[2]Filed 27 April 2022.
Revised Notice of Incriminating Conduct
The prosecution’s revised notice of incriminating conduct dated 28 October 2024 (‘the revised notice’) revised Item 3 as follows:
The accused lied to police when she told them she did not really enter the deceased’s house and only spoke to him inside the sliding door. (Q&A 155-156 & 173-174)
Revised Item 3 accurately reflects what the accused told police in her recorded interview whereas the original Item 3 did not.
Up until the 25 October 2024, the prosecution and I[3] both laboured under the misunderstanding that the original Item 3 accurately reflected what the accused told police in her interview. The prosecution opened its case to the jury consistent with that misunderstanding. In the course of preparation for the JDA discussions at the close of the prosecution case, I became aware of the misunderstanding and flagged the matter with the parties on Friday 25 October 2024,[4] so that they could consider the matter over the weekend and make submissions about it on 28 October 2024, which they did.[5]
SUBMISSIONS
[3]In a pre-trial ruling (DPP v Birchall [2023] VSC 391), I said this, relevantly:
[9] The accused denies that she was the assailant. She admits she attended the deceased’s house on the afternoon of 11 November 2020 but in her police interviews denied that she entered the house. She told the police she was only at the house a short time and spoke to the deceased through the back door.
[61] … The impugned evidence [namely, the footprint evidence] puts her at the scene of the crime at the time of the crime. The evidence has additional probative value because a jury could use it to find that the accused lied when she told police that she did not enter the deceased’s house on the afternoon of 11 November 2020. A jury could then use that lie as incriminating conduct, as asserted in the Prosecution’s Notice of Incriminating Conduct. The accused did not dispute, that if it was open to the jury to find that she lied about not entering the house on the afternoon of 11 November 2020, it could use that lie as incriminating conduct.
…
[76] Finally, for the reasons given above, the impugned evidence may be used by the prosecution to put the accused at the scene of the crime at the time of the crime. It may also be used to establish the lie that the accused did not go into the house on the afternoon of 11 November 2020, which the prosecution may rely on as incriminating conduct.
[4]Transcript, 1267–1269.
[5]Transcript, 1275–1306.
Prosecution
In relation to revising Item 3, the prosecution submitted initially that I could dispense with the notice requirement under s 19(3) but ultimately conceded that s 19(3)(a) was an obstacle to taking that course. The prosecution acknowledged that it had been aware of what the accused told police in her recorded interview for some time and had simply misinterpreted it. The prosecution then submitted that I had a general discretion to amend a notice. Alternatively, the prosecution submitted that I should permit the prosecution to filed a revised notice and that under s 8, it was in the interests of justice to abridge the time for the filing of the revised notice. The prosecution submitted that the lie alleged in the original Item 3 and the lie alleged in the proposed revised Item 3 were very similar and that the accused would not have run her case differently if the original Item 3 had been accurately drafted. The prosecution submitted that the alleged lie was ‘of sufficient cogency’[6] that it should be put to the jury as incriminating conduct. The prosecution said that if it was not permitted to rely on the alleged lie as incriminating conduct, it would rely on it as a credit lie.
[6]Transcript, 1281.
Accused
The accused submitted that there must be strict compliance with the notice requirements, which include the requirement that a notice must be filed not less than 28 days before the day that the trial is listed to commence.
The accused submitted that s 19(3) was inapplicable because the prosecution had been aware of the evidence for some time even though they had misunderstood it.
The accused doubted that the court has a general discretion to amend a notice of incriminating conduct. The accused, without conceding the point, acknowledged that the prosecution was on stronger ground in its application under s 8 for an abridgement of time to file a revised notice. However, the accused submitted that the prosecution were seeking to obtain an unfair advantage.
The accused did not dispute the prosecution's submission that the accused would have run her case the same way if Item 3 of the original notice had been accurately drafted. The accused did not submit that it would be forensically disadvantaged.
The accused did not object to other conduct itemised in the original notice being admitted for incriminating conduct reasoning. The accused submitted that if the prosecution were only permitted to use the alleged lie as a credit lie, directions would cure any risk that the jury would be confused by that limitation.
The accused conceded that the probative value of the alleged lie was relevant to whether it was in the interests of justice to abridge time for the service of a revised notice but did not concede the alleged lie was ‘cogent’.
The accused submitted that fairness was also a relevant consideration and that ‘prosecuting authorities should be accurate in the things that they put before the court’. The accused submitted that the discretion given by s 8 should be used sparingly.
ANALYSIS
I was satisfied that a court has a general discretion to amend a notice of incriminating conduct, but it is expressly given the power by s 8 to abridge the time for the service of a notice if it is in the interests of justice to do so. I accepted that the alleged lie is of significant probative value. It was capable of being viewed by the jury as an implied admission that the accused was the assailant. The accused did not dispute the prosecution’s submission that she would have run her case exactly the same way if Item 3 of the original notice had been accurately drafted. Although the misunderstanding as regards what the accused told police should not have occurred,[7] there was no unfair prejudice to the accused in permitting the prosecution to serve a revised notice and rely on the alleged lie as incriminating conduct. It was in the interests of justice to abridge time under s 8 and permit the prosecution to serve a revised notice of incriminating conduct.
[7]On my part as well as the prosecution’s.
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