R v Cumberbatch (No 2)

[2002] VSC 236

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1470 of 2001

THE QUEEN	Plaintiff
v
MILLICENT MAY CUMBERBATCH	Defendant

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JUDGE:	FLATMAN J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2002
DATE OF RULING:	7 May 2002
CASE MAY BE CITED AS:	R v Cumberbatch (No. 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 236

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CRIMINAL LAW RULING – Application for discharge of jury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston with Ms G. Cannon	Kay Robertson, Solicitor for Public Prosecutions
For the Accused	Mr D. Drake	Victoria Legal Aid

HIS HONOUR:

1. This is an application made by Mr Drake on behalf of the accused, Millicent May Cumberbatch, to discharge the jury.  Mr Drake contends that having regard to certain notes that have come to light, his client cannot receive a fair trial.

1. The circumstances relied upon in this application are that the defence is deprived of conducting a fair trial by not being able to pursue an investigation that may inculpate a third person.  It was also submitted that there ought to have been an investigation into the various theories held by the Monbulk police regarding burglaries in the Kalorama area.  In effect, the application centres around the proposition that this trial should be aborted to enable such investigations to take place and that this constitutes the high degree of need to discharge the jury.

1. The history of the application can be set out as follows:

·    An entry contained in the notes of Detective Senior Sergeant Paul Ross was provided to the defence prior to the trial.  It reads as follows – "Luke Ty, early twenties, 112 Ridge Road, out six months."  This was followed by a line reading – "Two burglaries, Friday, 117 Ridge Road Mount Dandenong."

·    On Friday 19 April 2002, as a result of further documents being provided to the defence at Mr Drake's request, a working sheet was provided from a witness, Mr Herd, who was a fingerprint expert.  This document included the entry "Luke Ty Morris, date of birth 17/10/71" and at the bottom of the page the reference to Atkins and Lumsden.

1. The effect of this document (the document having been compiled as a record of the examination of latent fingerprints at the homicide scene at 1276 Mount Dandenong Tourist Road, Kalorama) was to indicate that Item Numbers 38 (Internal window frame in sitting room/TV room) and 39 (External window frame of sitting/TV room - window smashed) were tested for fingerprints and that the possible sources of those fingerprints tested were police officers, Atkins and Lumsden and a third person, namely Ty Morris Luke.  As a result of this testing, the latent fingerprints were identified as belonging to the two police officers Atkins and Lumsden with Ty Luke being excluded.

1. The prosecutor then provided to the defence at their request, a copy of Mr Luke’s prior criminal convictions together with a copy of a police report indicating that the said, Ty Luke was spoken to by police in Jacksons Road, Mulgrave at 11.35 p.m. on 5 September 2000 with respect to a matter unrelated to the events of 5 September 2000 at 1276 Mount Dandenong Tourist Road, Kalorama.  Jacksons Road is apparently some thirty minutes away from Kalorama.

1. Mr Drake also argued that the said, Ty Luke, had at some stage given a place of address in the Kalorama area and had failed to answer bail.

1. It was not insignificant in the context of this case that there had been committal proceedings conducted in this matter and that no questions were put to police about alternative suspects at those committal proceedings.

1. Given the issues in this trial, the notes of Detective Senior Sergeant Ross and the police report relating to Ty Luke’s apprehension at Jacksons Road, Mulgrave, provide no rational basis to connect the person referred to as Ty Luke with the events at Kalorama on or about 5 September 2000.  Similarly, there is no basis, in my view, to connect the burglaries referred to in the notes to the death of Mr Cumberbatch.  I also note that the application specifically relating to the burglaries in the Kalorama area is made at a time just prior to the conclusion of the trial, although the notes of Detective Senior Sergeant Ross were available prior to the commencement of the trial.

1. Accordingly, there is no basis to suggest that the accused would be denied a fair trial and far from there being a high degree of necessity or need to discharge the jury, it would, in my view, be an extraordinary step to take in the circumstances of this case.

1. The application to discharge the jury is rejected.

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