R v Penrose (Ruling No. 3)

[2016] VSC 192

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0006

THE QUEEN
v
BRETT NOEL PENROSE	Accused

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 February 2016
DATE OF RULING:	29 February 2016
CASE MAY BE CITED AS:	R v Penrose (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2016] VSC 192

---

EVIDENCE – Character Evidence – Criminal Law – Manslaughter – Good character evidence introduced by defence – Prosecution entitled to rebut this evidence – Evidence Act 2008 s 110 – Evidence allowed.

---

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:

1. It is not in dispute that Counsel for the accused, Mr Kelly, has partially introduced his client's good character.  I shall read the relevant passages.

This is a question of Ms Jones, the mother of Charlotte by Mr Kelly:[1]

[1]Transcript of proceedings, DPP v Penrose (Supreme Court of Victoria, 2015/0006, Justice T Forrest) (‘Transcript’), 185 [ff].

But in terms of speaking to the police you would say that at all times you were concerned about and committed to assist in whatever way you could?‑‑‑Always.

‑ ‑ ‑ with the investigation and you understood on all of those occasions that the police spoke to you in your interview at other times they were interested in determining from you whether  there were any instances you could recall of Mr Penrose behaving in an aggressive or anti‑social or inappropriate way with Charlotte?‑‑‑Yes.

Correct?  And there wasn't a single instance that you could come up with was there?‑‑‑No.

The same goes for his treatment his own two girls, T. and S., correct?‑‑‑Correct.

You would say not only whilst you lived together in Phefley Court but for the months preceding that when you saw him in their company, you were in a position to make observation in terms of the quality of care he administered to them?‑‑‑Yes.

And again if there was nothing out of the ordinary atypical, untoward, you knew that was the sort of thing that the police were interested in hearing about?‑‑‑Yes.

Correct?  And again there's not a single instance of his behaving in anything other than a completely appropriate way ‑ ‑ ‑?‑‑‑No.

‑ ‑ ‑ with his own two children?‑‑‑Correct, yes.

1. The following questions were asked of Krystal Lanyon, who the evidence demonstrated was a close friend of Renee Jones in 2004, in cross-examination:[2]

   In terms of the way that Mr Penrose’s interacted with Charlotte and interacted with his own children, you knew when you spoke with police that if there was anything noteworthy, anything inappropriate that he’d done in your presence that the police were interested to know about it; correct?‑‑‑Yes.

And from your observations over that year in terms of the quality of his own parenting of his own children and the way that he dealt with Charlotte, there was nothing, absolutely nothing?‑‑‑No there wasn’t.

‑ ‑ ‑ irregular, there was no raised voice there was nothing?‑‑‑No.

At any stage that you observed, correct?‑‑‑No.

Thank you.

[2]Transcript, 361[ff].

1. The Crown seek to respond to that evidence from a Ms Danhiez, then a 14 year old baby‑sitter for Mr Penrose and Ms Jones.  As I understand it the Crown seek to respond with evidence to this effect:  On Christmas Eve 2004 Ms Danhiez was wrapping Christmas presents at the Penrose home in Phefley Court.  Mr Penrose's two daughters were asleep at this time, they were aged six and two.  The younger daughter, then aged 2 years, came out from her room for a period of about 30 seconds.  Mr Penrose yelled or shouted at her to get back into her room, his face went red and he appeared angry.  He took her hand and led her back to her room.

1. Section 110 of the Evidence Act, unlike the common law, permits character to be put partially in issue.  In this case the accused has, beyond doubt, placed his character in issue as a caring father to his two girls T. and S., and caring when dealing with Charlotte.

1. The questions that were directed to Ms Jones were directed to the time that she lived at Phefley Court and before.  I regard Christmas Eve 2004 as sufficiently close in time to the period leading up to Charlotte's death that the evidence has some probative value as rebuttal evidence.  It appears that Ms Jones at any event was still living at Phefley Court on Christmas Eve 2004 although, should evidence in the trial disprove that, it is my view that the evidence is sufficiently close in time to the period of Charlotte's death for it to have probative worth as rebuttal evidence.

1. I propose to permit the evidence of Ms Danhiez to be led in rebuttal.  The evidence adduced must be confined to respond directly to the impugned character evidence that has been led, and it cannot stray beyond that.  The prosecution may lead evidence of, in effect, the mirror image of the character evidence that has been led by the defence.  In other words it may lead evidence of the general circumstances of the Christmas Eve conversation, what the accused is alleged to have said, his tone, and his appearance while saying it.  It may not lead evidence of any fears held by the witness herself.