R v Penrose (Ruling No.1)
[2015] VSC 786
•9 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0006
| THE QUEEN | |
| v | |
| BRETT NOEL PENROSE | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 November 2015 |
DATE OF RULING: | 9 November 2015 |
CASE MAY BE CITED AS: | R v Penrose (Ruling No.1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 786 |
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CRIMINAL LAW – Pre-trial ruling – Indictment charging accused with recklessly causing injury and manslaughter – Infant victim – Severance application by Crown - Section 193(1) of the Criminal Procedure Act – Severance of indictment both desirable and practicable to ensure a fair trial – Danger of prejudice – Evidence on one charge used impermissibly to corroborate latter charge – Severance ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg | Office of Public Prosecutions |
| For the Accused | Mr J R Kelly | Leanne Warren & Associates |
HIS HONOUR:
Brett Noel Penrose is charged with recklessly causing serious injury to the child Charlotte Rose Keen on 8 December 2004, and with the manslaughter of Charlotte Rose Keen on 17 December 2004. At the time of her death at the Royal Children’s Hospital Charlotte Keen was 11 months old. The accused has pleaded not guilty to both charges and the trial is about to commence.
By way of response filed on behalf of the accused to the summary of prosecution opening the accused denies assaulting inuring or killing the child. Mr Kelly of counsel for the accused has applied for me to sever the indictment resulting in a separate trial on Charge 1 from Charge 2. If I were to accede to that request, Charge 2, the charge of manslaughter, would proceed, and whether Charge 1 proceeded thereafter would obviously depend to some degree on the outcome of the first trial, but I work on the basis that whatever the result on Charge 2, Charge 1 would proceed.
The evidence in this trial will likely demonstrate that the accused man was in a relationship with Renee Jones, the mother of Charlotte Keen. The natural father of Charlotte is Graeme Lee Keen. When the child was aged five months the relationship between Jones and Keen broke down. Later in 2004 Jones and her child moved into premises at Phefley Court, Wodonga. The accused, Penrose, also lived in that house and some time later a relationship began between them. The accused was an interstate truck driver and on occasions Renee Jones would accompany him on interstate trips.
The charge of recklessly causing serious injury is based on the allegation that some time between 12.15am and 1.00am on Wednesday 8 December 2004 the accused man caused bruising to the child's face and a fracture to her arm. The Crown allege that occurred when the accused was alone with the child. The charge of manslaughter, and the second charge on the indictment, arises from what the Crown allege is a separate incident which occurred when the child was alone with the accused at some time after 8.30pm on Saturday 11 December 2004. Prior to that time the child was observed by witnesses to be in a healthy, happy and normal state, although it would appear that during that period the child had sustained an injury which the Crown say is a consequence of the first incident.
At all events after 8.30pm on Saturday 11 December 2004, and allegedly at the hands of the accused, the child sustained injuries, including a brain injury, which ultimately caused her death.
Section 193(1) of the Criminal Procedure Act which replaces s 372 of the Crimes Act provides that, ‘Where an indictment contains more than one charge the court may order that any one or more of the charges be tried separately.’ Legal principle makes it clear that ensuring a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion to sever, and one aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. Where the evidence on one count is admissible in proof of another count there may be no point in ordering separate trials.
In this case the only basis on which the prosecution seek to use the evidence supporting Charge 1, as I understand the submissions made this morning by Ms Borg, is to demonstrate that by the time the second incident took place the accused must have known, because of the injury to the child, that the child was in a more vulnerable state thus going to the issue of dangerousness on the charge of manslaughter.
Though having filed the required notice the prosecutor earlier indicated, last week, that she did not desire to rely on the evidence supporting Charge 1 as coincidence evidence, and there is no assertion that the evidence is admissible as tendency evidence.
The result is that apart from the issue of dangerousness the evidence on Charge 1 and the allegation that the accused caused the injuries which are at the basis of Charge 1 is not cross‑admissible on Charge 2 and this morning in her submissions Ms Borg made that clear.
If the evidence on one charge is not admissible on the other charge, the accused then applying for the indictment to be severed must nonetheless satisfy the court that there is a reason to make such an order, and in particular the applicant for severance must demonstrate that to sever the indictment is both desirable and practicable in order to ensure a fair trial.
It is clear enough that just because the evidence on Charge 1 is inadmissible on Charge 2 does not determine the question of severance. I am required to consider the prejudice to the accused which will arise and assess whether that prejudice can be removed by an appropriate direction of the jury on misuse of evidence on one count in proof of another. As Ms Borg has submitted it is usually to be assumed that the jury will faithfully comply with any directions they are given by the trial judge.
When considering whether or not severance should be ordered, fairness to the accused and also to the prosecution and its witnesses should be considered. It is true that a balance should be struck between the interests of the accused in avoiding prejudice due to the jury hearing evidence related to other charges, on the one hand, and the public interest in the efficient allocation of judicial resources, consistency of verdicts, convenience of witnesses, and finality of litigation on the other.
Prejudice occurs when there is a danger that evidence admissible on one charge but inadmissible on another will be used impermissibly by the jury as corroborating the latter count.
In R v. TJB, for example, reported in [1998] 4 VR 621 at p 60 Callaway JA (with whom Phillips CJ and Buchanan JA agreed) offered five points of guidance in the exercise of the discretion to order severance of charges in an indictment.
His Honour said the following:
We should not effect, on the first occasion we have to consider the amendments to s 372, to foresee all the circumstances in which the discretion will have to be exercised or to circumscribe it by judge made rules. (See R v. Smart [1983] 1 VR 265 at 284).
Some guidance must however be essayed. I would venture the following:
(1)A presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so. In that respect sexual offences are no different from other offences.
And I here interrupt to indicate that TJB was of course a case dealing with a presentment containing multiple charges of sexual offending.
(2)One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence and again is not peculiar to trials of sexual offences.’ (See, for example, R v. Smart, especially at 283 and 289).
(3)It is usually to be assumed that the jury will comply with any directions that are given by the judge. A fair minded lay observer takes that very factor into account in considering whether a trial is fair. (Compare with Webb v R [1994] 181 CLR 41 at p 55).
(4)There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.
(5)There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules it is inadmissible because of prejudice.
I am of the view, that if, for example, the victim in this case were an adult and there had been some earlier incident of causing injury prior to the incident that resulted in death, such charges might not be heard separately even if the evidence on the first charge was not relied upon to support a conviction on the second. However, this is a case where the accused is charged with the manslaughter of a child aged less than 12 months, having a few days earlier caused an injury to that child.
This of course will be an extremely emotional trial. There's already been some foreshadowing of the cautions that should be made to the jury in relation to the consideration of the evidence bearing in mind the emotional nature of the evidence. I assume that a jury would, if confronted with both charges in the indictment, deal with the matters chronologically. That seems to be me to be the most sensible way in which a jury would approach the issue.
In my opinion if a jury had resolved to conclude guilt on Charge 1, the central issue in the case being whether or not it was the accused who inflicted the injuries, and then turn to consider the issue on Charge 2 where that same central issue arose, but where the evidence on Charge 1 was not admissible on the later charge, there is a very significant risk that the evidence supporting Charge 1 would be misused regardless of judicial direction.
With some reluctance, but nonetheless, clearly I have come to the view, bearing in mind that this will result in not one but two trials, that the risk of misuse of that evidence is unacceptable, and I do propose to sever the indictment as requested on behalf of the accused.
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