R v De Saint-Aromain (Ruling No 1)

[2013] VSC 398

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0006

THE QUEEN
v
CARL DE SAINT-AROMAIN	Accused

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2013
DATE OF RULING:	26 July 2013
CASE MAY BE CITED AS:	R v De Saint-Aromain (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2013] VSC 398

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CRIMINAL LAW – Ruling – Admissibility of a statement of additional evidence from a witness – Evidence vague, not sufficiently relevant and not a professional opinion – Evidence inadmissible – Criminal Procedure Act 2009 (Vic) s 188, Evidence Act 2008 (Vic) ss 55, 59, 76, 77, 79(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Porceddu	Office of Public Prosecutions
For the Accused	Mr T. Lavery	Rainer Martini & Associates

BONGIORNO JA:

1. This ruling concerns an application by the Crown to lead evidence from an existing Crown witness, beyond that contained in his original deposition and disclosed to the accused. The application was made by the prosecutor whilst the witness was giving his evidence‑in‑chief. No written notice of this addition to the Crown case, as it was being presented, was given to the accused, as required by s 188 of the Criminal Procedure Act 2009 (Vic). Accordingly, I declined to consider the matter further until that provision was complied with.

1. The Crown duly complied with s 188 by serving a short statement of additional evidence it proposed to lead from the witness, Mark McLellan, the manager of survey services in the marine safety division of Transport Safety Victoria. That statement was in the following terms:

I have made my own inquiries about the weight of a 20 horsepower Mariner outboard engine.  Whilst I haven’t been able to narrow it down to the year and serial number of the Mariner engine subject to the incident at Daveys Bay on 3 September 2010, I have concluded from my research that the engine is in the weight range of 50‑52 kilograms.  My research also showed that a 15 horsepower engine from the same era, being about 25 years ago when it was made, would be in the range of 35‑40 kilograms.  These types of engines are all two‑stroke motors.

1. At this point in the trial a witness, Greg Daniels, a marine assessor of long experience, had already given evidence for the Crown as an expert, concerning his examination of the outboard motor of the boat concerned in the death of the deceased.  He gave evidence in considerable detail that he had dismantled, inspected and assessed the motor.  He provided his opinion on various matters, said to be relevant to the charges faced by the accused, to the jury as to its state of repair.  He gave no evidence as to its weight.

1. Mr Daniels was cross‑examined on various matters, including by reference to a document produced by defence counsel, without objection, which, in tabular form, compared the various characteristics, including the weight of three different outboard motors manufactured by Mercury, a well‑known outboard motor manufacturer.  He accepted that that document demonstrated that in the case of Mercury motors at least, a 15 horsepower motor may weigh the same, or even more, depending on its configuration, than a 20 horsepower motor.

1. It might be concluded that his evidence was that there was little difference between 15 horsepower and 20 horsepower motors, given that the range of available outboard motors was extremely wide, from something less than 15 horsepower to perhaps many hundreds of horsepower.  No doubt, content with the acceptance of this material by  Mr Daniels, defence counsel tendered the document and Mr Daniels left the Court without re‑examination.

1. A major part of the Crown case against the accused is that he was negligent in installing a 20 horsepower motor in the relevant boat when he knew, or ought to have known, that to do so was dangerous because such an engine was too heavy and would destabilise the boat, but until the evidence now sought to be led was revealed, no evidence disclosed to the accused referred to the weight of the motor at the time it sank.  Certainly neither Mr Daniels nor Mr McLellan weighed the motor, probably because they were never asked to do so. It seems that the additional evidence now sought to be put before the jury has been hastily procured in a belated attempt to remedy this possible lacuna in the Crown case.

1. I did not rule on the Crown’s application to lead this further evidence from Mr McLellan, pending its subjection to examination on the voir dire, which examination was held at a convenient time in Mr McLellan’s examination‑in‑chief and before he was about to give evidence about the effects of weight, presumably including the weight of the motor upon the boat’s stability.  On that voir dire, Mr McLellan frankly conceded that the “research” he said he had conducted consisted solely of reading material in the nature of sales and similar material put out by various boat manufacturers as to the various weights of their respective engines.  He obtained this information from the internet, presumably by employing an appropriate search engine.  He did not explain how he obtained the range for the weights of a 15 horsepower motor manufactured 25 years ago.

1. In cross‑examination, counsel for the accused put various propositions to the witness based on written material he had had the witness produce as being, presumably, copies of the websites he had consulted. Counsel for the accused resisted the admission of this new evidence on the ground that it was hearsay. He argued that all the witness was doing was repeating what he had read on websites he had consulted. There is considerable force in this submission. Unless some exception to the hearsay rule could be invoked, s 59 of the Evidence Act 2008 (Vic)[1] would preclude the admission of this evidence.

   [1]Hereafter referred to as the ‘Evidence Act’

1. The only submission put by the prosecutor was that although the evidence might be of little value, it was admissible because it was relevant, and that its deficiencies went to its weight, not to its admissibility.

1. I have concluded that the evidence should not be admitted. First, it is vague. It does not relate to the motor which was on this boat at the relevant time but merely to the weight of various unspecified motors which may or may not be the same as that with which this case is concerned. As such, it is not sufficiently relevant to be of any use to the jury. It does not meet the test of relevance laid down by s 55 of the Evidence Act.

1. Secondly, it is not a professional opinion but merely a hearsay recounting by the witness of specifications given in sales, or similar literature on the Internet. The witness agreed that no expertise was required to perform the inquiry which he undertook. As hearsay, it is excluded by s 59 of the Evidence Act. As an opinion, it is excluded by s 76 of the Act and not saved by ss 77 or 79(1). The evidence is not wholly or substantially based on the specialised knowledge of the witness.

1. Having regard to my conclusions that the evidence is inadmissible, it is not necessary to decide whether, in the exercise of a discretion, it should be excluded as being unfair to the accused.  Having regard to the fact that it was disclosed at the time it was, after the accused had cross‑examined another expert along particular lines without knowledge of the evidence now sought to be produced, might raise the question of discretionary exclusion. I also leave to one side, at least for the moment, questions of the general acceptability of this evidence, if it was contested.

1. The accused in this case is on trial for a serious criminal offence.  He must be given a fair trial and not be the subject of evidence which is less than cogent and properly admissible.  The evidence is rejected.