R v Carrington

[2007] VSC 432

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1588 of 2006

THE QUEEN	Crown
v
JAMES DANIEL CARRINGTON	Accused

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Ruling

JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2007
DATE OF RULING:	12 September 2007
CASE MAY BE CITED AS:	The Queen v James Daniel Carrington
MEDIUM NEUTRAL CITATION:	[2007] VSC 432

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Criminal law – propensity evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman SC	Office of Public Prosecutions
For the Accused	Mr D.G. Wraith	Vines Lawyers

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HIS HONOUR:

1. Counsel for the accused Mr Wraith has submitted that the prosecutor Mr Hillman SC should call the witness Tarni Evans whose statement appears in the depositions as part of Exhibit “O” “Remainder of H and Brief”.  In short his evidence says that in mid February 2006 she was with Lisa Steen:

“I remember we were in the loungeroom and about 1.00 am in the morning.  Liz bent down in front of her (sic) and I remember telling I was going to shoot her in the arse with a paint gun.  I think she was getting a bit stressed out about things and I said that to take her mind off it all.

She said to me you want a gun I will show you a fuckin’ gun and she got something out of the bedroom that leads off the loungeroom and she came back wearing (sic) something that looked like an old black powdered musket.  It looked more like an antique black powdered pistol than a sawn-off shotgun and they were double barrels and I had never seen a single barrel shot gun myself.  I have no idea whether it was a shot gun or an antique pistol.  Liz just showed me it and it was gone again in a second.  She did not threaten me with it or make any other threats at all.”

1. The fact is Lisa Steen owned a weapon which met that description and that the gun was in her house on the night of the 9^th of March 2006.  The question of the ownership of the weapon is not therefore an issue in the trial.  The prosecutor Mr Hillman SC declined to call the witness on the basis that she could give no relevant evidence.  Mr Wraith submitted that the evidence would be relevant to show that the witness Lisa Steen had a propensity “when she was getting a bit distressed” to produce a firearm and perhaps this firearm in particular.

1. Prior to The Queen v Gibb and McKenzie[1] there had been conflicting authority in Victoria as to whether evidence of disposition could be led.  The three instances where such evidence may have been important are in cases of self defence, provocation and duress.  The Court of Criminal Appeal had decided in The Queen v Lowrey & King (No 3)[2]:

“That although evidence of propensity may not be admissible if the suit of the Crown, it may well be admissible in support of a defence contention.  The real difference which has arisen in the case was whether or not any matter not know to the accused could be admitted.”

[1][1983] 2 VR 155, 167.

[2][1972] VR 939, 944-5.

1. In Gibb and McKenzie[3] it was resolved that where the question of propensity was relevant to support the state of mind of an accused, then that evidence was admissible (see pp.170-171).  If any support for the proposition is needed the matter was made very clear in Re Knowles.[4]

   [3](Supra).

   [4][1984] VR 751 at 768.

1. The matter in issue here is that the accused asserts in his record of interview that during an altercation with Ms Steen, where she had responded irrationally to a telephone call he had received, she had produced the firearm and threatened him with it.  The threat included putting the firearm near his face, loading it and cocking it.  It is said she threatened to kill him and his children.  That may have been preceded by a physical attack.  Although Ms Steen admitted ownership of the weapon, she denied that she had produced it.  Mr Wraith’s submission was that the incident with Ms Evans showed a propensity of a kind which would support the proposition that, as against the denial of Ms Steen, that she had produced the gun in the manner alleged.

1. The witness Susan Timms, the other person who had been present in the house on the night of the 9^th of March 2006, gave evidence that Ms Steen had produced the sawn-off shotgun and behaved in a threatening manner towards both herself and the accused.  She did not however, see Ms Steen put the sawn-off shotgun near the face of the accused.  She did not see the weapon loaded or cocked or see any cartridge.

1. If Ms Steen was said to have shown a relevant propensity in this case, it would necessarily have to be a propensity not only to produce the shotgun but to use it in a threatening manner.  Although Ms Evans’ evidence might, at its very highest, show a propensity to produce the weapon, it does not demonstrate a propensity for the weapon to be used in  a threatening manner.  In her statement Ms Evans said “She did not threaten me with it or make any other threats at all.”  That evidence does not show any propensity to use the weapon in a threatening manner.

1. It is difficult to see how the production of the gun, in the circumstances described by Ms Evans, shows any propensity to use the firearm or use it in a particular way.  Ultimately the production of the weapon was not in issue in the trial.  In those circumstances the evidence of Ms Evans was not relevant.  I did however take the view that if the jury believed that Ms Steen had been untruthful with them as to the production of the firearm as seemed inevitable, they should treat the remainder of her evidence with great care.  I instructed the jury accordingly.