R v Derich (Ruling No 1)

[2009] VSC 103

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1402 of 2008

THE QUEEN

v

SHAUN NICHOLAS DERICH

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 - 13, 16 - 17, 19 - 20 March 2009
DATE OF RULING:	16 March 2009
CASE MAY BE CITED AS:	R v Derich (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 103

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Failure by Accused to report accident to police – Not probative of guilt – Alternatively so prejudicial as to require exclusion. 

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr A. Lewis	Robert Stary & Associates

HIS HONOUR:

1. Mr Brown seeks to adduce evidence from the informant as to whether the accused man attended police to report to them the extensive damage to his car or what his counsel has put as his instructions as to an attack upon the accused with a knife.

1. In effect, it seems to me that what is sought to be adduced, is evidence from which a jury might infer a guilty mind, although the application is put on the basis that the conduct is simply inconsistent with the story that has been put forward on the basis of instructions by counsel during the course of this trial.

1. Mr Lewis objects to this evidence on the basis that the conduct is equivocal and that it does not flow from a failure to report to the police, that there is any inconsistency with the proposition that events occurred as he has put to the complainants.  In particular his instructions are that Mr Derich remained in fear of Mr Gogan after the events of the night and went into hiding with his daughters.  He contacted police when advised by his father that they were looking for him.

1. Mr Lewis also objects that any evidence the witness could give would be hearsay.  It seems to me that the hearsay objection is good and should be upheld unless the witness were able to give evidence as to police records with respect to the question and such evidence would have to be based upon a proper search. 

1. More fundamentally it seems to me that the failure to report is in itself sufficiently equivocal to mean that the jury could not exclude reasonable explanations such as the one that Mr Lewis has advanced.  It is not on proper analysis probative of the Crown case.  If it can be regarded as probative, its prejudicial tendency far outweighs any weight that could be given to it. 

1. In turn, it seems to me that although the matters which Mr Brown seeks to put forward are matters which could properly be explored in cross-examination, in the event that Mr Derich gives evidence, they are not matters which the Crown should be permitted to advance as part of its own case and I so rule.