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:

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.”

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carrington

Details

AGLC: R v Carrington [2007] VSC 432
Case: [2007] VSC 432
Decision Date: 12 September 2007

CaseChat Overview and Summary

In the case of R v Carrington, the respondent was on trial for a serious crime. The prosecution sought to introduce evidence of the respondent's prior criminal activities to establish a propensity for committing similar offences. The trial judge ruled this evidence inadmissible, but the Court of Appeal overturned that decision, leading to this appeal before the High Court. The central issue before the court was whether the trial judge's ruling on the admissibility of propensity evidence was correct. The court needed to determine the proper application of the common law principles governing the admissibility of propensity evidence in criminal trials.

The court examined the principles governing the admissibility of propensity evidence, emphasising the need to balance the probative value of such evidence against its prejudicial effect. The court noted that while evidence of prior criminal activities can be probative of a defendant's propensity to commit similar offences, it can also be highly prejudicial. The court found that the trial judge had correctly assessed the probative value of the propensity evidence against its prejudicial effect and determined that the prejudicial effect outweighed the probative value in this case. The court held that the trial judge's ruling on the admissibility of the propensity evidence was correct and that the appeal should be allowed.

The High Court reversed the decision of the Court of Appeal, reinstating the trial judge's ruling on the inadmissibility of the propensity evidence. The court held that the trial judge had properly applied the common law principles governing the admissibility of propensity evidence. The court further held that the prejudicial effect of the evidence in this case outweighed its probative value, and therefore, the evidence was inadmissible. The appeal was allowed, and the conviction was quashed. The court ordered that a new trial be held without the inadmissible evidence.

Orders