R v Gill & Mitchell

[2003] VSC 322

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1408 of 2003

THE QUEEN

v

JASON RUSSELLL GILL and
MICHAEL PATRICK MITCHELL

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JUDGE:	REDLICH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2003 to 21 May 2003
DATE OF RULING:	30 April 2003
CASE MAY BE CITED AS:	R v Gill and Mitchell
MEDIUM NEUTRAL CITATION:	[2003] VSC 322

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CRIMINAL LAW – Ruling No. 1 – Application pursuant to s.400 Crimes Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McArdle QC with Ms R. Carlin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused Jason Russell Gill	Mr L. Hartnett	Chester Metcalfe & Co.
For the Accused Michael Patrick Mitchell	Mr D. Drake	Grubissa White

HIS HONOUR:

1. David Mitchell, the son of the accused, Michael Patrick Mitchell, is required by the Crown to give evidence in this trial. Application has now been made on his behalf under s. 400 Crimes Act 1958 to exempt him from giving evidence.

1. The grounds of that application are that, if David Mitchell were to give evidence, it appears that the relationship between himself and the accused would be damaged, and that it would be harsh in any event to require David Mitchell to give evidence against his father.  As to the approach to such applications, see R v Arkan and Andrakakos.[1]

   [1][2002] VSC 577 per Nettle J.

1. Sub-s.(3) of s. 400 Crimes Act1958 provides that I can exempt David Mitchell from giving evidence if I am satisfied that, having regard to all of the circumstances of the case, the interests of the community in obtaining the evidence which it is proposed he should give is outweighed by the likelihood of damage to the relationship between himself and his father, or the harshness of compelling the proposed evidence, or the combined effect of both of those matters.

1. Sub-s. (4) of s. 400 Crimes Act 1958 provides that, without restricting the generality of the expression, in all of the circumstances of the case, I can have regard to a number of considerations, including the nature of the offence charged, the importance to the case of the facts which the proposed witness is to be asked to depose to, the availability of other evidence, and the likely effect upon the relationship and the likely emotional, social and economic consequences if the proposed witness is compelled to give evidence.

1. At short notice, Mr Gates of counsel appeared pro bono on behalf of Mr David Mitchell and I was very much assisted by his comprehensive, albeit brief, submission.  On Mr Mitchell’s behalf, it was submitted that, if David Mitchell were forced to give evidence, there was a real risk of damage to his relationship with his father.

1. I was told that the applicant, David Mitchell, had visited his father regularly in prison following the laying of these charges.  He initially saw his father on a regular basis but after the committal proceedings those visits changed and became less frequent.  The visits were, as I understood it, after the committal, about once a fortnight.  Mr Gates described the relationship between father and son as one which had altered in that David Mitchell  now found it more difficult to communicate with his father.

1. It was also said on the applicant’s behalf that, when he gave evidence at the committal, he had been informed as to his right to seek an exemption from giving evidence against his father but that he had not clearly understood the extent of his rights and, furthermore, that he had not anticipated at the time that he gave evidence in the committal proceedings that such evidence would damage his relationship with his father in the manner in which it now has.  It was said on the applicant’s behalf that his real fear now is that, if he gives evidence against his father, it will ruin the relationship.

1. I was informed that, prior to the applicant giving evidence at the committal proceedings, he had been threatened with being charged, presumably in relation to the offences presently before the Court, if he sought an exemption under s 400 Crimes Act.  Obviously, I am in no position to make any assessment whatsoever about the substance of that allegation.  But having been referred to the transcript of Mr Mitchell’s evidence at the committal, I am satisfied that he did on oath assert that he had been so threatened.  I therefore put to one side when considering this application, the fact that he has previously given evidence on oath in relation to this matter, and I do not treat it either as a matter in support of or a matter adverse to the application.

1. It appears from what I have been told that David Mitchell is the eldest of four children of his father, that he had a close relationship and that that relationship, as one would expect, has inevitably suffered, both as a result of the evidence that he has given and the evidence that he would be expected to give were this application unsuccessful.

1. I was also informed that the second statement made by Mr Mitchell was made under pressure.  There was no further elucidation of that submission and it was not suggested on his behalf that anything contained within that second statement was untruthful.

1. The application for exemption is opposed by the Crown.  The Crown submits that the evidence of David Mitchell is of real significance to the Crown case in that it demonstrates, if accepted, that both of the accused, that is, David Mitchell’s father and the other accused, Jason Gill, left Mr Mitchell senior’s home in the company of the deceased, that there was some altercation outside the premises and that they were subsequently observed on the roadway some distance away from the house, still in the company of the deceased, when an incident occurred and as a result the deceased fell to the ground.  It may be that some portion of that account could also be the subject of evidence from another witness, but, as I understand the matter, it was not contested that the observations which Mr Mitchell would depose to as to what occurred on the street some distance away from his father’s home is not evidence which can be given by any other witness.  Such evidence is, as the Crown has submitted, of real significance both to the case made by the Crown against his father and the co-accused, Jason Gill.

1. In support of the Crown’s submission that the evidence of David Mitchell is significant, Mr McArdle frankly acknowledged that in the event that I were to rule that David Mitchell could be exempted from giving evidence against his father, the Crown would need to give serious consideration to the question of a separate trial because, as I follow it, the Crown would still wish to lead the evidence from David Mitchell against Jason Gill.  That submission, if it does nothing else, serves to emphasise the significance which the Crown attaches to David Mitchell’s testimony.

1. I accept that it is a harsh thing to compel a son to give evidence against his father.  I also accept without hesitation that in this case the requirement that a son give evidence against his father may create a real likelihood of some damage to the relationship between them.  If the matters were not as serious as they are, I would be inclined to allow the application.

1. Having regard to the nature of the offence charged, that is, murder, and the importance which the Crown rightly attaches to the evidence which David Mitchell can give, and which cannot be given by any other witness, then, notwithstanding the prospect that the giving of the evidence by David Mitchell may affect his relationship with his father and can properly be viewed as harsh, I feel bound to refuse the application.

1. I consider, having regard to all of the circumstances of the case, including these brief reasons, that it is in the interests of the community that such evidence be obtained by the Crown if it is able to do so, and that that consideration is not outweighed by any of the considerations set out in sub-s.(3) of s. 400 Crimes Act 1958, and for those reasons the application for exemption is refused.