R v McDermott (Ruling No 3)
[2015] VSC 637
•17 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 195
| THE QUEEN | |
| v | |
| CRAIG McDERMOTT | Accused |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 November 2015 |
DATE OF RULING: | 17 November 2015 |
CASE MAY BE CITED AS: | R v McDermott (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 637 |
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CRIMINAL LAW – Evidence – Admissibility – Court orders – Exclusion of evidence – Evidence Act 2008 (Vic) s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane QC with Ms E Ruddle | Office of Public Prosecutions |
| For the Accused | Ms C Randazzo SC with Mr J Desmond | Doogue George O’Brien |
HIS HONOUR:
Introduction
This ruling concerns the admissibility of parts of orders of the Sunshine Magistrates’ Court dated 17 February 2014 and 26 March 2014 under the Family Violence Protection Act 2008 (Vic) (‘FVPA’).
In Ruling No. 1, I held that orders made under the FVPA and in the Federal Circuit Court between 17 February 2014 and 16 April 2014 were probative and relevant to a number of important issues at trial. Subject to a s 137 evaluation, the orders were admissible.
On the risk of unfair prejudice, I found that references contained within the orders to ‘family violence’[1] and ‘drug tests’[2] gave rise to a real possibility that a jury may draw impermissible inferences, and that the inclusion of such references would distract from, rather than enhance the jury’s task.[3] I asked the parties to endeavour to agree upon the form in which this material should go to the jury
[1]Orders of Sunshine Magistrates’ Court dated 17 February 2014.
[2]Orders of the Federal Circuit Court dated 15 April 2014.
[3]R v McDermott (Ruling No.1) 2015 VSC 615, [49] – [54].
The prosecution and defence have narrowed the issues in dispute agreed upon the substance of the evidence to go before the jury. With two exceptions, a statement of admitted facts has been agreed in relation to the orders made prior to 16 April 2014.
Matters in dispute
The matters in dispute are contained in paragraphs (2) (a) and (5 )(a) of the admitted facts which are italicised:
(2) On 16 February 2014 An FVO restraining Mr McDermott:
a. “commit family violence” against Fiona Warzywoda or the children of our relationship;
b. Damage property belonging to Fiona Warzywoda;
c. Committing family violence is defined as “behaviour towards a family member that is physically, or sexually abusive, emotionally or psychologically abusive, threatening or coercive or an in any other way controls or dominates a family member and causes that family member to feel for their safety or wellbeing or that of another family member.
(5) On 26 March 2014 the Sunshine Magistrates’ Court amended the terms of the FVO restraining Mr McDermott:
a. “commit family violence” against Fiona Warzywoda or the children of our relationship”.
b. Intentionally damage property of Fiona Warzywoda or the children of our relationship;
c. Attempt to locate or follow Fiona Warzywoda or the children of our relationship;
d. Contact or communicate with Fiona Warzywoda or the children of our relationship;
e. Approach or remain within 5 metres Fiona Warzywoda or the children of our relationship;
f. Go to or remain within 200m of 16 Nodosa Grove or any other place where Fiona Warzywoda or the children of our relationship live, work or attend school.
(Emphasis added)
Submissions
The prosecution submits that for the orders to be properly understood by the jury, there needs to be ‘some reference to what it was [that] Mr McDermott was prohibited from doing’[4] and that to remove those references would deprive the relevant orders of any context. The prosecution further submit that the inclusion of paragraph 2(c) in the admitted facts makes it clear that the reference to ‘family violence’ in 2(a) and 5(a) encompasses a range of behaviours, and is not limited to physical violence.
[4]T635.
The prosecution contend that the prejudicial effect of paragraphs 2(a) and 5(a) can be dealt with by the inclusion of paragraph 2(c) and the provision of an appropriately worded direction to the jury.
Counsel for the defence objects to the inclusion of these parts of the orders on the basis that they could lead a jury to speculate as to the purpose of those orders and particularly, to infer that Mr McDermott was violent towards Ms Warzywoda and the children.
The defence have proposed the following alternate wording for paragraphs 2 and 5:
(2) ‘On 17 February 2014, I attended the Sunshine Magistrates’ Court. No evidence was heard and I consented, without making an admission, to an intervention order. The order permitted ongoing contact and communication between the parties and permitted me to reside at the family home.’
and
(5) ‘On 26 March 2014, I attended the Sunshine Magistrates’ Court preventing me from attending the family home and contacting or communicating with the applicant (Fiona Warzywoda and children) unless through a lawyer or mediator.
The defence submits that the alternate wording, by reason of the inclusion of the words ‘intervention order’ and the limitations on contact in proposed paragraph 5 would provide sufficient context in the circumstances.
Analysis
This discussion is premised on the proposition that, failing agreement, I will make orders as to how the orders are to be presented to the jury. Of course, it is not for me to impose an admitted fact upon a party to a criminal proceeding. This ruling may assist the parties in deciding how the admitted facts will go to the jury.
In my view, defence counsel’s submissions should be accepted in relation to paragraph 2. The reference to ‘family violence’ is, as I have previously stated, an invitation to the jury to speculate that Mr McDermott, has, in the past committed violent acts toward members of the family. I am not convinced that a direction would satisfactorily address the risk of impermissible speculation by the jury. Moreover it is of limited probative value provided the jury are aware that there was an intervention order in place from February 2014. It should therefore be excluded under s 137.
Accordingly, I accept the defence’s proposed alternate wording for paragraph 2 as outlined above.
However, in relation to paragraph 5, I do not accept that the wording proposed by the defence satisfactorily summarises the conditions imposed by the Sunshine Magistrates’ Court on 26 March 2014.
In my view, the defence version is far too anodyne and lacking in substance as to the real purport of the orders. It is highly material to the jury’s deliberations that it knows, with the exceptions of references to family violence, the true state of affairs in the ongoing legal dispute between Mr McDermott and Ms Warzywoda in the weeks leading up to Ms Warzywoda’s death.
The following is my suggested summary (with amendments marked):
(5) On 26 March 2014 the Sunshine Magistrates’ Court amended the terms of the intervention order
under the Family Violence Protection Act 2008. I was present and agreed to the making of the order. The Court ordered that I must not:
a.“commit family violence” against Fiona Warzywoda or the children of our relationship”.
a. Intentionally damage property of Fiona Warzywoda or the children of our relationship;
b. Attempt to locate or follow Fiona Warzywoda or the children of our relationship;
c. Contact or communicate with Fiona Warzywoda or the children of our relationship;
d. Approach or remain within 5 metres Fiona Warzywoda or the children of our relationship;
e. Go to or remain within 200m of 16 Nodosa Grove or any other place where Fiona Warzywoda or the children of our relationship live, work or attend school.
The inclusion, in paragraph 5 (without reference to the ‘family violence’ parts of the order) of the exact conditions imposed upon Mr McDermott by the Sunshine Magistrates’ Court on 26 March 2014 accurately illustrates the general nature of the order and does not give rise to a risk of unfair prejudice.
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