R v Penrose (Ruling No 2) - [2016] VSC 191

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL LAW DIVISION

S CR 2015 0006

THE QUEEN
v
BRETT NOEL PENROSE	Accused

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2016
DATE OF RULING:	16 February 2016
CASE MAY BE CITED AS:	R v Penrose (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 191

---

EVIDENCE – Coincidence evidence – Evidence Act 2008 ss 98, 101 – Accused charged with recklessly causing serious injury, and manslaughter – Identity of offender – Whether or not evidence relevant on Charge 1 relevant on Charge 2 – Similarity of circumstances of events surrounding the alleged offending on each Charge – Whether or not the evidence has significant probative value – Whether or not the probative value is outweighed by prejudice to the accused.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Borg Ms M. O’Brien	Office of Public Prosecutions
For the Accused	Mr J. Kelly	Leanne Warren & Associates

HIS HONOUR:

Brett Penrose has been indicted on two charges:

Charge 1:That on or about 8 December 2004, at Wodonga, without lawful excuse, he recklessly caused serious injury to Charlotte Rose Keen (s 17 Crimes Act 1958).
Charge 2:That on 17 December 2004, at Parkville, he killed Charlotte Rose Keen (Manslaughter – Common Law).

On Charge 2, the prosecution case is that the acts that caused the death were carried out by the accused on either the evening of 11 December or the early morning of 12 December 2004. I may refer to the circumstances of Charge 1 as ‘event 1’, and of Charge 2 as ‘event 2’.

The trial came on for hearing before Lasry J in early November 2015. Mr Kelly, who appears for the accused, made a submission that the indictment ought be severed and that the trial proceed on Count 2. Ms Borg, who prosecutes, opposed this application.

His Honour acceded to the defence submission and severed the indictment.[1]

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

The prosecution sought leave before the Court of Appeal to appeal the severance ruling. Leave was refused.[2] During argument on the leave application, various members of the Court expressed the view that if the evidence surrounding Charge 1 were to be cross-admissible on Charge 2 it could only be through the gateway of coincidence evidence (s 98(1)). Up until that time the prosecution had not contended that the evidence relating to Charge 1 was cross-admissible with the evidence on Charge 2 on a coincidence basis.[3]
[2]DPP v Lamb [2015] VSCA 307.
[3]I note that a Coincidence Evidence Notice was filed on 28 July 2015, however that was not relied upon.

On 2 February 2016, the prosecution served a Coincidence Notice on the accused. Relevantly, it read:

Table A – Relevant fact(s) in issue

CHARGE	FACT(S) IN ISSUE TO WHICH THE EVIDENCE RELATES
1	Whether the accused recklessly caused the serious injury to Charlotte Keen.
2	Whether the…

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 2)

Details

AGLC: R v Penrose (Ruling No 2) [2016] VSC 191
Case: [2016] VSC 191
Decision Date: 16 February 2016

CaseChat Overview and Summary

In the case of R v Penrose, the defendant was charged with two offences: recklessly causing serious injury, and manslaughter. The matter was heard in a relevant court, where the presiding judge was tasked with determining the admissibility of certain evidence presented by the prosecution. The evidence in question related to a series of events that were strikingly similar to the circumstances surrounding the alleged offending in the two charges. The defence argued that the evidence should not be admitted in relation to the manslaughter charge, as its probative value was outweighed by the potential prejudice to the accused.

The court was required to decide whether the evidence, which was relevant to the charge of recklessly causing serious injury, was also relevant to the manslaughter charge. In addition, the court had to determine if the similarity of the circumstances of the events surrounding the alleged offending on each charge meant that the evidence had significant probative value. Furthermore, the court needed to assess whether the probative value of the evidence was outweighed by prejudice to the accused.

In examining the relevant provisions of the Evidence Act 2008, the court found that the evidence was relevant to both charges, given the similarity of the circumstances. However, the court also acknowledged the potential prejudice to the accused if the evidence was admitted. After carefully weighing the probative value of the evidence against the potential prejudice, the court ruled that the evidence should be admitted in relation to the charge of recklessly causing serious injury, but not in relation to the manslaughter charge. The court found that the probative value of the evidence was not outweighed by the potential prejudice in relation to the former charge, but was in relation to the latter charge.

The final orders of the court were that the evidence in question would be admitted in relation to the charge of recklessly causing serious injury, but not in relation to the manslaughter charge. This decision was based on the court's assessment of the relevant provisions of the Evidence Act 2008, and its consideration of the probative value of the evidence against the potential prejudice to the accused.

Orders