R v Penrose (Ruling No.1) - [2015] VSC 786

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…

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 Penrose (Ruling No.1)

Details

AGLC: R v Penrose (Ruling No.1) [2015] VSC 786
Case: [2015] VSC 786
Decision Date: 9 November 2015

CaseChat Overview and Summary

The case before the court involved an indictment charging Penrose with recklessly causing injury and manslaughter in relation to the death of an infant. The Crown sought a severance of the charges, arguing that it was both desirable and practicable to ensure a fair trial for the accused. The matter was heard in the court of criminal jurisdiction.

The primary legal issue before the court was whether it was desirable and practicable to sever the indictment, as permitted under section 193(1) of the Criminal Procedure Act. The Crown argued that the risk of prejudice to the accused was significant due to the potential for evidence on one charge being used impermissibly to corroborate the other. The court had to weigh the risk of prejudice against the principles of fairness and the administration of justice.

In its ruling, the court found that severance was indeed both desirable and practicable. The risk of prejudice was considered significant, given the potential for evidence on the charge of recklessly causing injury being used to corroborate the charge of manslaughter. The court emphasised the importance of ensuring a fair trial for the accused and preventing any evidence from being used in an impermissible manner. Consequently, the court ordered the severance of the indictment, allowing the charges to be tried separately to mitigate the risk of prejudice.

The court's final order was that the indictment be severed, with the charge of recklessly causing injury and the charge of manslaughter to be tried separately. This decision was made in the interests of ensuring a fair trial and upholding the principles of justice.

Orders