R v Gill & Mitchell

[2003] VSC 319

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1408 of 2003

THE QUEEN

v

JASON RUSSELL 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 319

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CRIMINAL LAW – Ruling No. 2 - Evidence – Probative Value – No unfair prejudice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McArdle Q.C. with Ms R. Carlin	Ms Kay 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. Mr Drake on behalf of the accused, Michael Patrick Mitchell, has submitted that I should exclude evidence of a beer can found by investigating police lying on the nature strip of Jellicoe Street a short distance east of its intersection with Oriel Road.  The deceased’s body was found in the garden of the house on the corner of Oriel Road and Jellicoe Street, and by reference to a sketch plan which is to be found at page  519 of the depositions, it is apparent that the beer can is only a relatively short distance away from the spot where the deceased’s body was found.

1. The Crown intends to lead forensic evidence establishing that the beer can contained DNA of the accused, Michael Mitchell.  It was submitted by Mr Drake that that evidence can have no probative value in the circumstances, as there is an abundance of evidence that Mr Mitchell, in company with members of his family and friends, had been drinking alcohol, including beer, at Mr Mitchell’s premises throughout 13 December 2001 and into the early hours of the morning of 14 December 2001.  To substantiate this, my attention was drawn to a number of questions and answers in the record of interview involving the accused, Michael Patrick Mitchell, particularly questions 45 through to question 65.  I was also referred to a Melways map, Exhibit 31 at the committal proceedings, which shows that at the intersection of Banksia Street and Oriel Road there are a group of shops which includes premises from which alcohol is sold.  I was told that it was necessary for Mr Mitchell, when he went to the shops to purchase alcohol, to pass through the intersection of Oriel Road and Jellicoe Street in very close proximity to where the can was found.

1. As Mr McArdle acknowledged in reply to the submission of Mr Drake, the importance of the evidence of a beer can found in that location depends upon a conclusion being reached that the beer can found its way to that position at or about the time that the deceased was killed.  If it were at any other time that the can came to be placed there, it would have no probative value.  The question as to the admissibility of this evidence may be related to, but is different from questions as to the warnings that might need to be given to a jury about the use that may properly be made of such evidence.  If this evidence is of some albeit slight probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from the jury’s consideration.  Such a principle arises normally in circumstances where it can be said that there is unfair prejudice if such evidence were admitted.

1. When I refer to unfair prejudice, I mean a risk that a fact will be suggested which is of a kind that would ordinarily be excluded from evidence in the interests of fairness to an accused.

1. In Festa v The Queen[1] Gleeson CJ. spoke of what is normally understood to be unfair prejudice and observed:

“Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given.  If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use.”[2]

[1](2002) 208 CLR 593.

[2]See Festa v The Queen supra at 603.

1. The evidence which the Crown here seeks to admit is not, in the sense described by Gleeson CJ., prejudicial evidence because it has no prejudicial effect other than its probative value.  Its exclusion as an exercise of the Court’s discretion could only be justified if it were concluded it would be dangerous to admit such evidence.  That would mean, in the context of this case, dangerous because the jury might use the evidence improperly.

1. The only manner in which the jury could use this evidence as logically probative is if, and only if, the jury concluded that the beer can was placed or found its way onto the nature strip at a time proximate to the time that the deceased died.  That, it seems to me, is a jury question.  The jury would have to consider that question bearing in mind a number of directions, including directions concerning the use of circumstantial evidence and the proper basis upon which inferences can be drawn.

1. As Gleeson CJ. said, speaking of circumstantial evidence of identification in Festa’s case:

“It is not enough to say that it is weak and, as already mentioned, whether it is weak might depend on what use is made of it … .  Evidence may show that an accused was near the scene of a crime.  Such evidence on its own does not show that the accused committed the crime.  That does not mean it is of no probative value;  in the end, it will have to be considered together with all the other admissible evidence.”[3]

[3]See Festa v The Queen supra at 599.

1. Such reasoning, seems to me to be apposite to the issue raised here.  Such evidence may be viewed by the jury as probative.  Its strength will no doubt depend a great deal upon other evidence that will be led including evidence concerning the presence or absence of the accused, Michael Patrick Mitchell, at the scene of the crime.  It will be necessary to give the jury careful directions concerning that evidence.  It seems to me that it has a probative value and its exclusion cannot be justified, it having no prejudicial effect in the manner I have referred to.