R v Debs

[2007] VSC 167

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1426 of 2006

THE QUEEN

v

BANDALI MICHAEL DEBS

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2007
DATE OF RULING:	12 April 2007
CASE MAY BE CITED AS:	R v Debs
MEDIUM NEUTRAL CITATION:	[2007] VSC 167

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CRIMINAL LAW – Murder trial – Evidence of the recording of conversations of the accused with fellow prisoner at Port Phillip Prison inadmissible – Slight probative value outweighed by potential prejudicial effect.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney	Office of Public Prosecutions
For the Accused	Mr C. Dane QC with Ms H. Spowart	Victoria Legal Aid

HIS HONOUR:

1. For the reasons I have outlined, I will exclude the evidence of the recording of the conversation involving the accused man at Port Phillip Prison on 11 February 2001.  In my view, it is a matter of speculation only as to whether the accused in that conversation was referring to the general location where the killing took place of the deceased.  Certainly, it would seem to me, there is no relevant connection in the absence of the evidence relating to the news releases of 5 February.  Even given that evidence, it seems to me that the connection is still highly speculative and quite tenuous. 

1. Any probative value which could attach to the evidence, in my view, would be significantly outweighed by the unfair prejudice to the accused should the evidence be adduced.  That prejudice, I think, is two‑fold.  I have adverted to it in the course of argument.  Firstly, the admission of the evidence would be an invitation to the jury to speculate.  This is a case of circumstantial evidence where the jury will need careful instruction, and indeed reminder, that they can only draw inferences and not speculate.  But, secondly, in order to give the evidence any connection at all to the case, it will be necessary, it seems to me, for the Crown to adduce evidence as to the news release.  That evidence may lay a connection in the sense it could be argued that the accused has reacted somehow sub‑ consciously to that news release by referring to the scene or a scene possibly consistent with where the crime took place.  The obvious difficulty with that is that the jury may, I would think, be sorely tempted to infer that by referring to that location the accused was somehow admitting his guilt.  It would be very difficult for me to steer the jury away from that form of fallacious reasoning by appropriate direction.  Indeed it is undesirable, given the type of directions I will otherwise have to give in this case, that I need to burden them with it. 

1. Given the very tenuous, if any, relevance of the evidence to the issues in this case, and given its potential probative value, in the exercise of my discretion I exclude it. 

1. For the reasons already discussed in submissions and indeed ultimately Mr Tinney has not sought to argue against them, I also exclude the evidence of 5 February 2001 relating to the recorded conversation between the accused man and the man known as Peter Gruber at Port Phillip Prison.