R v Cumberbatch (No 4)
[2002] VSC 238
•9 April 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1470 of 2001
| THE QUEEN |
| v |
| MILLICENT MAY CUMBERBATCH |
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JUDGE: | FLATMAN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 April 2002 | |
DATE OF RULING: | 9 April 2002 | |
CASE MAY BE CITED AS: | R v Cumberbatch (No. 4) | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 238 | |
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CRIMINAL LAW RULING - Admissibility of evidence in relation to an ANZ cheque in the name of S. Cumberbatch.
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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:
This is an application by Mr Drake made on behalf of the accused, Millicent May Cumberbatch, to exclude evidence relating to the presentation of a cheque at the ANZ Bank at Lilydale on 8 September 2000 at either 2.25p.m. or 2.27 p.m. The cheque was made out for cash to the sum of $200 and was signed S. Cumberbatch.
The cheque came from a cheque book that belonged to the deceased but which was found in the possession of the accused at the time of a search of her residence at 10A McKay Avenue, Mooroolbark which took place on Tuesday 12 September 2000. Statements from hand writing expert, Dr Bryan Found and witness, Sarah Osmotherly, who examined the signature on the cheque cashed at Lilydale on 8 September 2000, were of the opinion that it was a simulation of the deceased's signature. They were unable to say whether the accused was the author of that signature or not.
The Crown contend that they can establish that the accused forged and uttered the cheque and that therefore she had to have access to the deceased's house at 1276 Mount Dandenong Tourist Road, Kalorama some time prior to the cheque’s presentation on Friday 8 September 2000. Mr Elston submitted that the cheque book was found in a bundle of documents contained in a bag that the accused sought to secrete from the police during the course of their search of her premises. When the items were found by the police, she was concerned that she had been found with them.
Amongst the documents was the cheque book and a mini-statement from an automatic teller-machine at the National Australia Bank in Lilydale. The mini-statement related to an account belonging to the accused and was generated at 2.30 p.m. on 8 September 2000. (The cheque transaction being carried out at 2.25 or 2.27p.m. on 8 September 2000). The two banks, namely the ANZ and the National Australia Bank, at Lilydale, are in fact thirty-five metres apart in the same street. In this sense, the proximity in time and place are cogent.
In the course of her Record of Interview, the accused claimed that she had access to keys to the property at 1276 Mount Dandenong Tourist Road, Kalorama and that she acquired the cheque book on Saturday 9 September 2000. If the jury find that she in fact forged and uttered the cheque in question on Friday 8 September 2000, that contradicts the statement that she made in her Record of Interview to police. This means that the accused had access to the property prior to Saturday 9 September 2000 when the accused says she acquired the cheque book.
Mr Elston says that this material is relevant not simply to show that she lied to the police in the Record of Interview, but that it is relevant to a finding of fact that the accused was in the deceased’s premises some time prior to the cashing of that cheque on 8 September 2000.
It seems to me that this evidence is clearly relevant both to a fact in issue and to a question of whether or not the account given by the accused in her Record of Interview to police is true. Moreover, in the context of this case, its level of prejudice is fairly low. Given that it is not of the same character as the crime under consideration, I am not sure it really raises any question of propensity.[1] In any event, the evidence would be admissible whether under the rubric of s.389A Crimes Act 1958 or whether it simply forms part of the history of the transaction of this matter, part of the res gestae or part of the circumstantial evidence in this case.
[1]Brennan J. in Harriman v R (1989) 167 CLR 590 at 593-4.“Where the evidence tendered to prove the commission of another offence does not reveal an offence of the same or general kind or character as the offence charged , usually there Is no occasion to consider the principles relating to the admission of similar fact evidence , for prima facie , the evidence will not reveal an offence the commission of which might tend to show the commission of the offence charged.
Accordingly, this application to exclude evidence in relation to an ANZ cheque in the name of S. Cumberbatch is refused.
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