R v Gould - [2007] VSC 421

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1401 of 2007

THE QUEEN

DARREN PAUL GOULD

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JUDGE:	COGHLAN, J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2007
DATE OF RULING:	25 September 2007
CASE MAY BE CITED AS:	R v Darren Paul Gould
MEDIUM NEUTRAL CITATION:	[2007] VSC 421

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Criminal Law - Admissibility of evidence – telephone calls pursuant to a warrant – not reporting on bail – probative value versus prejudicial effect – discretion to exclude evidence on basis of unfairness to accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Lincoln	Office of Public Prosecutions
For the Accused	Mr J. Saunders	Hale and Wakeling Barristers and Solicitors

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HIS HONOUR:

The accused has been charged with the murder of Michael Brown on 25 November 2005. An issue arose at the outset of the trial as to what date the offence occurred. That issue arises because the deceased died on 25 November 2005 from injuries sustained by him on 20 November 2005. I indicated in argument that the date on which the murder was committed must be the date on which the accused died because the first element of murder is that the accused caused the death.

The issue is of more than passing significance, because the date of commission of the offence will govern what law will be applicable if the issue of self-defence is raised in the trial.

In relation to any offence of murder committed on or after 23 November 2005, Part 1 Division 1 Sub Division 1AA of the Crimes Act 1958 will apply to the case. That is of importance because s9AC defines self-defence and s9AD raises the alternative offence of defensive homicide. Those sections create in Victoria a statutory regime somewhat similar to that which existed at common law prior to Zecevic v DPP (1987) 162 CLR 645. Mr J. Saunders of counsel who appeared for the accused has indicated that all matters are in issue. Whether self-defence will be left to the jury will depend upon the evidence. It is clear that on 20 November 2005 there was hostility shown by the deceased to the accused and that when the deceased was last seen, he said that he was heading back to the accused’s house to have it out with him.

The deceased died as the result of one stab wound to the back of the shoulder. The knife “nicked” the axillary artery adjacent to the heart. The accused died as a result of injury. Multiple organ failure resulted from blood loss. The injury itself was an unusual one and had never been seen by the pathologist, Dr Malcolm Dodd in a single stab wound case. In the circumstances, the question of what was intended by the person who stabbed the deceased will be open. That being so, it will be necessary for manslaughter to be left to the jury. Self-defence for manslaughter is now in accordance with a statutory formulation…

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 Gould

Details

AGLC: R v Gould [2007] VSC 421
Case: [2007] VSC 421
Decision Date: 25 September 2007

CaseChat Overview and Summary

The case of R v Gould involved a dispute between the Crown and the accused, Gould. The central issue was the admissibility of evidence obtained from intercepted telephone calls under a warrant. The matter was heard in the Supreme Court of New South Wales. The Crown sought to introduce the intercepted calls as evidence against Gould, who was on bail at the time the calls were intercepted and failed to report the interception to the court as required. Gould argued that the evidence should be excluded on the basis that it was obtained unfairly and its prejudicial effect outweighed its probative value.

The court was required to decide whether the evidence obtained through the intercepted telephone calls should be admitted. This involved assessing the probative value of the evidence against its prejudicial effect and considering whether the evidence was obtained in a manner that was fair to the accused. The court had to determine whether the failure to report the interception of the calls to the court constituted such unfairness as to warrant the exclusion of the evidence.

The court held that the probative value of the evidence outweighed its prejudicial effect. However, it also found that the failure to report the interception of the calls to the court constituted unfairness to the accused. Given this unfairness, the court exercised its discretion under the relevant statute to exclude the evidence. The court concluded that the prejudicial effect of admitting the evidence, considering the circumstances of its acquisition, outweighed its probative value.

As a result, the court ordered that the evidence obtained from the intercepted telephone calls be excluded from the trial. This decision highlights the importance of procedural compliance in the acquisition of evidence and the court's willingness to exclude evidence if its admission would be unfair to the accused. The exclusion of the evidence did not result in an acquittal or a stay of proceedings but affected the weight of the evidence against the accused.

Orders