R v Brown (Ruling 1)
[2017] VSC 589
•23 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0018
| THE QUEEN |
| v |
| HUGH BROWN |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2017 |
DATE OF RULING: | 23 May 2017 |
CASE MAY BE CITED AS: | R v Brown (Ruling 1) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 589 |
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CRIMINAL LAW – Murder – Evidence – Admissibility of evidence that the deceased called the accused a paedophile or a ‘tamp’ – Evidence Act 2008 ss 55, 135 and 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Grant | Office of Public Prosecutions |
| For the Accused | Mr M Cahill SC with Ms A Burnnard | Matthew White and Associates |
HIS HONOUR:
The accused, Hugh Brown, is charged with murder. On 23 May 2017, I ruled that certain answers given by the accused in his record of interview are admissible as evidence in his trial.[1] I indicated that, in due course, I would give written reasons for the ruling, and I do so now.
[1]Transcript of Proceedings, 23 May 2017, 25.
Background
On Friday 17 June 2016, at approximately 2.50pm, Mr Brown attended a pharmacy in Bay Street, Port Melbourne and advised staff that he had stabbed his flatmate in their apartment in Nott Street, Port Melbourne. Police and emergency services were called and attended the apartment where they located Mr Brown’s flatmate, Steven Warlond, in a bedroom with a stab wound to the left side of his torso. He was treated by paramedics but died at the scene.
Mr Brown admits causing Mr Warlond’s death but claims to have done so in lawful self-defence. He claims Mr Warlond threatened him and brandished a knife just before Mr Brown stabbed him. Mr Brown also denies murderous intent, relying on the fact that he only stabbed him once and immediately went to get help for his friend.
Impugned evidence
During his formal police interview, Mr Brown claimed, on numerous occasions, that Mr Warlond had been abusive to him and called him, amongst other things, a paedophile or a ‘tamp’.
Before the trial commenced, the defence applied for the exclusion of any evidence that Mr Warlond said or believed that Mr Brown was a paedophile or a ‘tamp’.
Defence submissions
In seeking to exclude this evidence, the defence relied on s 55 of the Evidence Act 2008 (‘the Act’), arguing that the evidence is irrelevant. In the alternative, the defence submitted that, if the evidence had any probative value, it was very low and that it should be excluded under ss 135 or 137 of the Act because the probative value of the evidence was outweighed, or substantially outweighed, by the danger of unfair prejudice to the accused.
The defence submitted that the evidence is not evidence of a motive for the stabbing because the prosecution does not allege that Mr Brown stabbed Mr Warlond due to Mr Warlond calling him a paedophile or a ‘tamp’. The defence submitted that the evidence is irrelevant because the prosecution does not allege Mr Brown is, in fact, a paedophile.[2] The defence argued that the evidence is weak because there is no independent evidence of Mr Warlond actually making the statements, other than Mr Brown himself.[3]
[2]Ibid, [6]–[7].
[3]Defence outline of submissions for pre-trial issues, [5] (‘Defence submissions’).
As regards the danger of unfair prejudice, the defence submitted that any allegation that a person is or may be a child sex offender is a particularly grave one. It described the word ‘paedophile’ as a powerful term with particularly reprehensible connotations and said that any suggestion to the jury that Mr Brown is, was, may be or was considered by others to be a paedophile could only amount to a significant attack on his character.[4] According to the defence, there would be a significant risk the jury would place undue weight on the allegations and/or ‘turn against’ the accused from the outset. The allegations might also distract the jury by causing them to speculate about the nature or veracity of the allegations, or speculate that the accused killed Mr Warlond to prevent the allegations coming to light.[5]
[4]Ibid, [10].
[5]Ibid, [11]; Transcript of Proceedings, 23 May 2017, 15 (‘Transcript’).
Finally, the defence submitted that the prejudice could not be cured by any jury direction because a specific direction about the allegations would simply draw further attention to them.
Prosecution submissions
The prosecution submitted that Mr Brown’s account in his police interview of Mr Warlond accusing him of being a paedophile or a ‘tamp’ was a part of the accused’s description of the events that led to him stabbing Mr Warlond. While it does not allege these comments were the motive for the killing, it says a jury would be entitled to look at all aspects of that relationship when inferring the accused’s state of mind at the time that he stabbed the deceased.[6]
[6]Transcript, 20.
The prosecution relied on the accused’s consistent references to Mr Warlond calling him a paedophile as one of the more significant interpersonal features of their relationship. If those references are deleted from the interview, the prosecution argues the jury will be presented with an artificial and overly sanitised account of the accused’s description of his relationship with Mr Warlond.[7]
[7]Transcript, 24.
Analysis
In ruling that the impugned evidence was admissible, I accepted the prosecution submission that the evidence of Mr Warlond accusing Mr Brown of being a paedophile was an important aspect of the relationship between the two men. The state of that relationship is relevant to whether Mr Brown stabbed Mr Warlond intending to inflict death or really serious injury. The state of the relationship also goes to the issue of self-defence — whether Mr Brown stabbed Mr Warlond out of anger, not fear. Notwithstanding the fact that they were flatmates and friends, it is apparent from Mr Brown’s interview that he was upset with Mr Warlond over a wide range of issues and wanted him to move out. Mr Warlond calling Mr Brown a paedophile was no small matter to Mr Brown: at answer 66 of his police interview, Mr Brown said it was ‘a serious allegation’.
The fact that there is no other evidence of Mr Warlond having made these comments does not mean the impugned evidence is irrelevant or of little probative value. One assesses relevance and probative value on the assumption that the impugned evidence will be accepted by the jury, unless no reasonable jury could accept it.[8]
[8]IMM v The Queen [2016] HCA 14 at [43] to [49].
It will be made clear to the jury, both by the prosecution and in my charge, that it is not alleged that Mr Warlond is a paedophile. It will also be made clear to the jury that they can only use the impugned evidence for the limited purpose identified by the prosecution and for no other purpose. I anticipate that the jury will have no difficulty comprehending and following these directions. Even in sex cases where an accused is actually alleged to be a paedophile, juries demonstrate the capacity time and again to decide such cases on the merits and in accordance with directions of law. Consequently I do not consider there is a danger of unfair prejudice in this case, let alone a danger of unfair prejudice which outweighs the probative value of the evidence.
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