R v Hague - [2018] VSC 26

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0163

THE QUEEN
v
KARL MICHAEL HAGUE	Accused

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2018
DATE OF RULING:	6 February 2018
CASE MAY BE CITED AS:	R v Hague
MEDIUM NEUTRAL CITATION:	[2018] VSC 26

---

CRIMINAL LAW – Pre-trial ruling – Evidence – Admissibility – Identification – Section 137 Evidence Act 2008 – Internally inconsistent – Probative value - Identification parades – Negative result on two occasions – Alternative suspects - Whether evidence has probative value – Risk of unfair prejudice – Whether a jury issue – Effect of publicity over 22 year period – Witness now identifies accused as the offender - Evidence of identification excluded pursuant to s 137 – Publicity – Reinforcement and effect over extended period.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney SC and Ms S Flynn SC	Office of Public Prosecutions
For the Accused	Ms F Gerry QC with Dr T Alexander	Paul Vale Criminal Law

HIS HONOUR:

In this case, the accused man Karl Hague is charged with having murdered Ricky Balcombe at about 3.20pm on 5 May 1995 in the vicinity of the Geelong Mall in Little Malop Street Geelong. Given the time of day, several people saw the incident but Balcombe’s friend and associate Paul Bellia was the only one present when the stabbing occurred and will be a witness in the trial.

Ricky Balcombe was 16 years of age at the time of his death and a member of a group or gang of youths known as the ‘Main Stream Criminals’, also known as the ‘Red Bandanas’. According to the Prosecution in their summary of opening, the members of this gang used to assemble around the mall in Little Malop Street Geelong as well as at local billiard halls. From time to time there was trouble caused as a result and there was some rivalry with other gangs.

At the time of the stabbing of Balcombe, the accused Karl Hague was 21 years of age and resided in Corio. He was not part of the gang that Ricky Balcombe was in and was part of some different group.

The prosecution case will contend that the fatal stabbing of Balcombe occurred following an attack on a vehicle, in which the accused was located, on 21 April 1995. That attack had resulted in substantial damage to the car and put the occupant, or occupants, in fear. That had, in turn, followed an alleged earlier attack on Balcombe by the accused. The attack on the motor vehicle was thus said to be in retribution for that.

The single issue in this trial, if it proceeds, is whether or not the prosecution can prove that the accused was the person who fatally stabbed Ricky Balcombe.

Again, according to the summary of the prosecution opening, there are a combination of circumstances which, they will argue, prove that the accused was…

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 Hague

Details

AGLC: R v Hague [2018] VSC 26
Case: [2018] VSC 26
Decision Date: 6 February 2018

CaseChat Overview and Summary

In the case of R v Hague, the respondent, Hague, was charged with a serious criminal offence. The matter was heard in the Supreme Court of Victoria. The central issue in the case was the admissibility of evidence from a witness who had identified Hague as the offender after a lengthy period of time, during which the case had been subject to extensive publicity. The prosecution sought to adduce evidence from a witness who, after two failed identification parades, now claimed to recognise Hague as the offender. The defence argued that the evidence should be excluded due to its unreliability and the potential for unfair prejudice to the accused.

The court was required to determine whether the evidence met the threshold of probative value under section 137 of the Evidence Act 2008. The court considered the internally inconsistent nature of the witness’s identification, the negative results from the two identification parades, and the effect of the prolonged publicity on the witness’s identification. The court held that the evidence had limited probative value and carried a significant risk of unfair prejudice, given the potential for the publicity to have influenced the witness's identification. The court concluded that the evidence was more likely to mislead the jury than to assist in determining the truth of the matter.

The Supreme Court of Victoria excluded the evidence under section 137 of the Evidence Act 2008. The court emphasised that the probative value of the evidence was outweighed by the risk of unfair prejudice to the accused. The court recognised the potential for the prolonged publicity to have influenced the witness’s identification and considered this to be a significant factor in its decision. The court held that the matter of the witness’s identification was better left to the determination of the jury, if at all, in light of the prejudicial effect of the evidence.

Orders