R v Floyd

[2001] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 290 of 1999

THE QUEEN

v.

RODNEY IAN FLOYD

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APPLICATION PURSUANT TO SECTION 574(b) OF THE CRIMES ACT 1958

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JUDGES:	WINNEKE, P., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2001
DATE OF JUDGMENT:	3 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 124

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Evidence – Purpose of section explained – Not to aid “fishing expedition” based on speculative material.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	Solicitor for Public Prosecutions
For the Applicant	Mr. D.C. Dealehr	Gordon Campbell

WINNEKE, P. (delivering judgment of the court): 

1. This is an application made on behalf of the applicant, Rodney Floyd, pursuant to s.574(b) of the Crimes Act 1958, requesting the Court to order that one Robert Michael Crotty attend and be examined before a judge of the Trial Division. Crotty is said to be a witness able to advance the applicant's appeal to this Court, which is due to be heard later this month.

1. Section 574 gives certain supplementary powers to this Court which it may exercise if it thinks it “necessary or expedient” to do so in the interests of justice.  One such power given by sub-para.(b) of the section is to order any witness who would have been compellable at trial to be examined before a judge of the Trial Division and to allow the admission of the deposition so taken as evidence before the Court of Appeal on the hearing of the appeal.  The section was introduced into the Courts of this State by s.9 of the Criminal Appeal Act 1914 (Vic) and is derived from s.9 of the Criminal Appeal Act 1907 (U.K.).  It is a provision which has been sparingly used.

1. The applicant was convicted in November 1999 at the Geelong Supreme Court of the murder of his brother Michael in 1997.  It is that conviction in respect of which the appeal to this Court is due to be heard.  The ground of appeal is that the verdict is unsafe and unsatisfactory.

1. The material which has been filed with this Court in support of the application suggests that Crotty, who was a prisoner at Barwon at the time when the applicant was in the same prison following his conviction, has some information to give concerning knowledge in the possession of a woman called Ebony Williamson, who was a witness at the trial and who was known both to Crotty and to the applicant.  She had in fact been described as the partner of the applicant at the time when the crime was committed.  The applicant and his solicitor say that they were told by Crotty in March 2000 that he (Crotty) had been told by Williamson that, at a time believed to be prior to the murder, although not identified, she (Williamson) had wished to procure from Crotty a cut-down shotgun or a .38 revolver because she wanted “to get someone”.  It is further said that this seemingly vague information, provided without context, could become significant because the applicant's defence at trial was that Williamson was the killer, and that he (the applicant) was nothing more than an accessory after the fact.

1. Because Crotty has been released from prison, it is said that neither the applicant nor his solicitor has been able to speak with him for the purposes of getting him to confirm the details of this conversation.  At the behest of the Crown, the police eventually did interview Crotty, who told them that he had spoken to Williamson at some time, but that the conversation that he had with her was, to his recollection, to the effect that she had wanted a gun “for her own safety”.  As might be expected, Williamson lived in a criminal milieu where threats had been made against her.

1. Mr Dealehr, who appears for the applicant on this application, says that although the information provided is speculative and inconclusive, it is, in essence, the seed which could terminate into fruit if Crotty is ordered to be examined through the exercise of the Court's power.   It is said that material may be obtained which will undermine the credibility of evidence given by Williamson.

1. Whilst the powers of the Court are necessarily concerned with ensuring that miscarriages of justice are rectified, s.574 does not, we think, go so far as to embrace an application such as this, which is, as is conceded, an application to aid a “fishing expedition” based on speculative material coming into the possession of the applicant and his legal advisers more than a year ago.  The purpose of s.574 is to enable the Court, if it thinks necessary and expedient in the interests of justice, to entertain on an appeal credible evidence not available at trial which appears to it to be cogent, in the sense that, if it had been available, the verdict might well have been a different one.

1. On the material before this Court there is absolutely nothing to suggest that such evidence is or will be available.  The evidence at trial was that the deceased was shot with a .22 rifle, which was owned by the applicant.  The case made against him was circumstantial.  We have read the Crown's extensive summary of the evidence given at the trial.  It confirms the view expressed that there is nothing in the material which is before us which, even if explored, would assist the Court in its determination as to whether the verdict is unsafe.  In any event, it seems to us that the application itself is based on inadequate material that is not only old and vague but is unsupported by any contextual information suggesting its relevance and cogency.  Accordingly, we do not regard it as expedient in the interests of justice to order the examination sought.

1. The application is dismissed.