R v King (Ruling No 1)
[2008] VSC 542
•11 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1517 of 2006
| THE QUEEN |
| v |
| GRAEME KING |
---
JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2008 | |
DATE OF RULING: | 11 November 2008 | |
CASE MAY BE CITED AS: | R v King (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 542 | |
---
Application to adduce video recording of deceased person’s evidence from previous trial pursuant to s.55AC of the Evidence Act 1958 – prejudicial effect compared to probative value – gross delay, forensic disadvantage and loss of opportunity to cross-examine deceased witness before jury – evidence in issue of little weight - prejudice outweighing probative value.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr H T Mason with Mr T Vriends | Faram Ritchie Davies Lawyers |
HIS HONOUR:
The accused is charged with the murder of his wife at their dairy farm in June 1991. The deceased's body was found floating in water contained in an old pig manure pit alongside an access laneway at the farm. The prosecution case is put on the basis of a combination of circumstances, namely first, the allegedly suspicious and unexplained circumstances associated with the manner of death. Secondly, evidence of an unhappy relationship between wife and husband. Thirdly, evidence of financial need before Mrs King's death, and a financial benefit to the accused from her death. Fourthly, evidence of a confessional statement made by the accused to an exotic dancer in Shepparton in 2000.
The matter previously came on for trial before His Honour Justice Coghlan and a jury in November 2007. The jury were ultimately discharged after having failed to agree on a verdict.
Since that trial a prosecution witness, retired Detective Sergeant Mansell, has died. The prosecution now seeks leave to adduce a video tape recording of Mansell's evidence at the previous trial as evidence in this trial pursuant to s.55AC of the Evidence Act 1958.
That section was the subject of helpful discussion in R v. Cacic (2002) 5 V.R. 446. Chernov JJA, with whom Charles and Buchanan JA agreed, gave the leading judgment.
The section is modelled on s.55AB(2) which makes provision for the use of depositions made before magistrates or coroners, by way of evidence in subsequent proceedings. It relevantly reflects, and in some respects expands, the common law rule, which makes admissible where a witness is dead, depositions and transcripts of such evidence as an exception to the hearsay rule.
There is no dispute in the present case that the evidence meets the criteria of admissibility provided for pursuant to s.55AC. It is nevertheless submitted that it should be excluded on the discretionary basis that its admission would be unfair in the sense that its prejudicial effect would substantially outweigh its probative value (cf Cacic at pps.452 & 3).
It is submitted on behalf of the accused:
· That the presentation of the evidence by video tape will give it undue prominence.
· That it is of no or minimal probative value.
· That the lapse of time since the observations about which evidence is given creates a serious risk of unfairness.
· That the loss of opportunity to cross-examine the witness before the jury is, in the unusual circumstances of this case, not adequately offset by the previous cross-examination recorded on video tape.
The prosecution submits:
· the video tape is a full and fair recording of the previous evidence;
· the probative value of the evidence is a matter for the jury;
· the fact of conflict between this evidence and other evidence does not mean it should not go before the jury (cf Cacic at 423 and R v. McCullagh (2007) 179 A.Crim.R. 334 at 384).
· The accused's counsel has had the opportunity to put his criticisms to Mansell by way of cross-examination, as the video tape demonstrates.
I turn then to the critical evidence. The Prosecutor has, at the direction of the court, filed and served a summary of his proposed opening. That summary identifies as suspicious some 10 circumstances associated with the manner in which Mrs King's body was found. For present purposes three are critical, being matters of which Mansell gave evidence by way of observations allegedly made when attending the scene of death shortly after the body was found. Those circumstances are as follows.
First, there was no mud on Mrs King's gumboots, despite the fact that the farm was particularly muddy. Secondly, there were no shoe prints or boot sole prints nearby consistent with the tread on Mrs King's gumboots. Thirdly, there were no signs of trodden grass indicating the presence of cows in the vicinity of the pit.
The following preliminary observations can be made about this evidence. First, the state of Mrs King's gumboots is directly depicted in Photograph 18 and is the subject of evidence from other witnesses. Conversely, and in his initial police statement of 29 April 1992, Mansell misdescribes the colour of the boots and records no observations about their cleanliness.
Secondly, not only is no reference to the absence of boot prints, made in his initial statement, but the evidence as a whole, is that the relevant area of laneway was traversed by a series of motor vehicles and some 12 people before the relevant opportunity for observation. The resultant sloppy condition of the laneway is shown in photographs. Mr Brown properly concedes on behalf of the Crown, that there is little room for satisfactory inference from the absence of identifiable boot prints.
Thirdly, Coghlan J made the following well-founded comments and gave the following direction in the course of his charge at the 2007 trial:
…but it seems reasonably possible that the boots would have been submerged in the water and although Mr Mansell had said that the boots were dry inside the evidence of Mr Drummond, in particular, the forensic examiner, was that the boots were wet on both the outside and on the inside.
As to the question of what footprints might or might not have been seen, and with the greatest of respect to Mr Mansell, you might think it is almost impossible given the circumstances of the finding of the body to say anything much about what footprints might or might not have been seen both in the lane and at the area immediately adjacent to the pit. Mr Mason put it, and I have not bothered to do the arithmetic, that something like a dozen people were in the vicinity and you have heard the evidence of that in the case and that seems to be well‑founded, but I would say to you to say that you could not proceed on the basis that there were no footprints of Mrs King in the immediate area of the pit in a way that could meaningfully assist you in your enquiries, I instruct you not to do so.
Fourthly, the state of the grass adjacent to the pit, is the subject of the video and photographic evidence. It was also inspected on the day in question, by crime scene examiners and experienced farmers who can give evidence of their observations.
Mansell's 1992 statement relevantly observes as follows:
Approximately one metre from the head of the deceased I observed a fawn jacket with a hood. This garment was soaked with water and heavy. On the jacket I observed a upper denture. Near the feet of the deceased there was an in-ground water receptacle or sump containing water. The area where the deceased was lying forms part of the land area to a haystack and at the end of an old piggery. The farm was saturated with water due to heavy rain and conditions along the laneway and edges of same, were boggy and slippery. On close examination of the deceased's face I observed an abrasion in the middle of the forehead which showed some bruising. The fencing around the haystack was in poor condition and the area around the stack had been heavily trampled by stock. The area around the sump in the ground also showed signs of having been recently trampled.
The natural sense of this last statement is contrary to the 2007 evidence as to absence of trodden grass, which the Crown wishes to adduce from Mansell by way of the video tape of his previous evidence.
The significance of evidence that stock passed directly adjacent to the pit is potentially twofold. Firstly, it would raise the possibility in the relevant position, that a cow knocked into Mrs King causing her to fall and strike her head. Secondly, it would explain how cattle found adjacent to the hayshed behind the pit after Mrs King's death, had potentially come to be there and why Mrs King might follow them into the area.
It can be seen the circumstance of trodden grass indicative of the presence of cows in the vicinity of the pit would assist the defence by raising a reasonable possibility, but its absence would not of course, be conclusively probative of the Crown's case.
Mr Mason points to the following further matters relating to Mansell's evidence:
· The accused was interviewed by Mansell in 1991 without a caution, despite the fact that Mansell in 2007 says in evidence that at the time he regarded the accused as a suspect on reasonable grounds. Such grounds were said to be constituted in significant part by the circumstances now in issue.
· At the inquest into Mrs King's death in 1993, Mansell did not express the opinion that Mrs King's death was suspicious. Indeed, the tenor of his evidence was to the contrary effect.
· When asked at the inquest whether he had anything to add to his statement, Mansell declined to add anything, including observations of any of the matters now in issue.
· The accused gave evidence at the inquest on the basis that the circumstances did not require him to be cautioned and Mansell acquiesced in this.
· Mansell's notes were produced to the Coroner but no reference to the matters now in issue appear to have been picked up in them. The notes have since been destroyed.
In September 2005, some 14 years after the events in issue, Mansell made a further statement to police. By that date his original notes had been destroyed. It appears he came to make the further statement in retirement, after one of the deceased's sons had approached him and he had in turn advised that son as to how to revive what was then a cold case.
Mansell's evidence at the first trial in 2007 was that before making the statement in 2005, he refreshed his memory from a crime scene video and photographs. I am satisfied that at least in one material respect, the second statement is inaccurate. It describes the fence between the laneway and the hayshed as being a two strand barbed wire fence in bad repair. The photographic evidence shows a "pig mesh" ring-lock fence with one strand of barbed wire above it and an electric fence wire adjacent to this.
The cross-examination of Mansell at the last trial, demonstrates that his evidence as to the detailed circumstances in issue, other than the condition of the boots as photographed, was entirely dependent on his memory. In my view the delay of more than 16 years at the time of such evidence, significantly disadvantaged the accused. Most obviously Mansell's original notes were not available and the recollection of other witnesses was no longer fresh. Furthermore, Mansell gave his evidence with the self-assurance of a retired detective who had served some 37 years in the Victoria Police, and in his own words had achieved a degree of, "fame."
In my view the video tape also demonstrates that the accused was at significant forensic disadvantage in cross-examination of Mansell in two further respects.
First, the extent to which the procedural flexibility in respect of the accused’s rights to which Mansell deposed, would and should be adjudged serious; was something which a jury would not evaluate in the same way as a judge of this court or some other person having a good understanding of police and legal procedure. Mansell said he acted as he did because the Homicide Squad had decided the death was accidental. The adequacy of this explanation and the seriousness of the procedural irregularities to which he deposed, including for example, the failure to caution the accused in circumstances where he says he believed on reasonable grounds that the accused was guilty of murder, in my view, raises very serious considerations.
Secondly, the cumulative effect of the matters relied on to raise a serious question on behalf of the defence as to whether Mansell's evidence involved recent invention resulting from the lapse of time was to raise the consequential question of Mansell's belief at the time of the actions highlighted by cross-examination. In other words, cross-examination (to the effect that his actions demonstrated he did not at the time, suspect the accused of murder) elicited answers that Mansell had always suspected the accused of murder on grounds he believed to be reasonable, and indeed, that he believed that Mrs King was murdered. The inevitable result of this line of questioning (exploring the history of Mansell's evidence) was thus to place before the jury the purported opinion of an experienced police officer purportedly reached soon after Mrs King’s death, as to the ultimate fact in issue in this trial, namely, the question of whether Mrs King was in fact murdered.
There are other more detailed matters that might be identified by reference to the video tape but, in my view, the matters I have referred to are sufficient to decide the matter.
In my view, the Crown should not be permitted to adduce the video tape evidence. The combination of gross delay and forensic disadvantage at the time of the previous trial is, in my view, materially aggravated by the loss of the opportunity to now challenge the witness directly in front of the jury. The prejudice to the accused would, in my view, outweigh the probative value of evidence, which in my assessment is properly regarded as being of little weight, and as I have sought to explain, goes in truth only to a limited number of matters which cannot be otherwise established.
For completeness I should record that Mr Mason also submitted Mansell lacked expertise to express any opinion as to the absence of boot marks consistent with the deceased's boots in the vicinity of the pit. I do not accept this submission. Mansell gave evidence he sketched the pattern of the sole of the relevant boot at the time. He also gave evidence of relevant experience of comparable conditions. The true objection, in my view, is that having regard to the evidence as a whole, such a purported observation can be given little, if any, weight; conversely it is potentially highly prejudicial.
---
CERTIFICATE
I certify that this and the 7 preceding pages are a true copy of the reasons for Ruling of The Hon. Justice Osborn of the Supreme Court of Victoria delivered on 11 November 2008.
DATED this third day of December 2008.
Associate
0
0
0