R v Dempsey - [2000] VSC 527

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1437 of 2000

THE QUEEN

BRENDAN ERIC DEMPSEY AND KATHLEEN LINDA DEMPSEY

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	28 NOVEMBER 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 527	First amendment 19.12.00

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CATCHWORDS: Ruling – Criminal trial – Application for separate trials – Whether a joint trial would be unfair to the applicant – Whether material admissible in the case of the co-accused would b highly prejudicial to the applicant – Whether prejudice could be overcome by direction to the jury – R. v. Jones and Waghorn (1991) 55 A.Crim.R. 159, R. v. Demirok [1976] VR 244 and R. v. Gibb & McKenzie [1983] 2 VR 155 distinguished – R. v. Vollmer [1996] 1 VR 95 applied – Application granted.

Ruling – Criminal trial – Admissibility of statements made by accused to the police that were not tape recorded – Crimes Act 1958, s.464H – Whether accused was suspected or ought reasonably to have been suspected of having committed an offence – R. v. Vollmer [1996] 1 VR 95 and R. v. Alexander [1994] 2 VR 249 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. M. Sexton with Mr. J. Dowsley	Peter Wood, Solicitor for Public Prosecutions
For Brendan Dempsey	Mr. M. Bourke with Ms. T. Hartnett	Victoria Legal Aid
For Kathleen Dempsey	Mr. A. Lewis	Anthony Isaacs

HIS HONOUR:

On 12 August 1998 Brendan Dempsey picked up his 11 week old son Bo Dylan from Bo Dylan's cot. He quickly realised that something was very wrong. In fact, Bo Dylan was dead. In the hope that this might not be so, immediate steps were taken to obtain medical assistance. It was to no avail. Bo Dylan had died of severe injuries to his head.

Mr Dempsey and his wife Kathleen Dempsey now face charges arising out of Bo Dylan's death. Mr Dempsey is charged with murder, Mrs Dempsey with manslaughter. They seek separate trials. Such a request should be granted where its denial would result in "a substantial miscarriage of justice" or "improper prejudice ... Against an accused": Webb v. R (1994) 181 C.L.R. 41 at 89 per Toohey J.

It is not possible to specify in advance when this situation will arise. Each case must depend on its own facts. Where two or more accused are charged jointly, especially where it is accepted that all were present at the scene of the crime and where one or more of the accused may be expected to blame another or other accused, there are strong reasons for having the same jury try the same issues. Otherwise the administration of justice may be brought into disrepute by inconsistent verdicts. Even so, the ultimate question is whether the proposed course will result in improper prejudice against an accused; and where it will, separate trials will be ordered even at the risk of inconsistent verdicts. This appears to have been the guiding principle behind the ruling of Hampel…

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 Dempsey

Details

AGLC: R v Dempsey [2000] VSC 527
Case: [2000] VSC 527
Decision Date: 28 November 2000

CaseChat Overview and Summary

In the matter of R v Dempsey, the defendant sought a separate trial from his co-accused, asserting that a joint trial would be unfair due to the potential prejudice arising from the admission of material relevant to the co-accused but not to him. The High Court of Australia was tasked with determining whether the prejudicial effect of such evidence could be mitigated by providing directions to the jury, thereby permitting a joint trial. The court also considered the admissibility of statements made by the accused to the police that were not tape-recorded, under section 464H of the Crimes Act 1958.

The primary legal issue before the court was whether the potential prejudice to the applicant from the admission of evidence relevant only to the co-accused would be so significant that it would render a joint trial unfair. The court examined precedents such as R v Jones and Waghorn, R v Demirok, and R v Gibb & McKenzie to understand the parameters within which prejudice could be assessed. The court also considered R v Vollmer, which dealt with similar issues of prejudice in the context of joint trials. The admissibility of the unrecorded statements was another key issue, requiring an analysis of whether the accused was suspected or ought reasonably to have been suspected of having committed an offence, as per R v Vollmer and R v Alexander.

The court determined that the prejudicial effect of the evidence relevant to the co-accused was substantial and could not be sufficiently mitigated by directions to the jury, thereby making a joint trial unfair to the applicant. It held that the prejudice could not be overcome by any directions, aligning with the reasoning in R v Vollmer. Additionally, the court found that the statements made by the accused to the police were admissible as they met the criteria of suspicion under section 464H of the Crimes Act 1958. Therefore, the application for a separate trial was granted.

The court ordered that the defendant, Dempsey, would be tried separately from his co-accused to prevent any undue prejudice. The admissibility of the unrecorded statements was upheld, allowing them to be used as evidence in the trial.

Orders