R v Penrose (Ruling No 4) - [2016] VSC 193

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:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	1, 2 March 2016
DATE OF RULING:	2 March 2016
CASE MAY BE CITED AS:	R v Penrose (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2016] VSC 193

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JURY DIRECTIONS – Criminal law – Manslaughter – Unreliability – Drug use – Prior inconsistent statements – Whether or not asserted unreliability is outside of juries’ common understanding – Jury Directions Act 2015 ss 12, 14, 16, 32.

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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:

On 1 March 2016 I invited counsel to request any jury directions they wished me to give as required by s 12 of the Jury Directions Act 2015 (the Act). These submissions were supplemented very briefly this morning by Mr Kelly following the close of evidence.

Counsel for the accused, Mr Kelly, requested an ‘unreliable evidence’ direction regarding the evidence of Renee Jones. The application was made in firstly in respect of Ms Jones’ drug use around the time of the relevant events, and secondly in respect of inconsistent accounts given by Ms Jones to investigating officers regarding her movements overnight on 11 – 12 December 2004.

Mr Kelly’s recent addition to his submissions was with respect to the evidence of Renee Jones’ mother, that Renee Jones had suggested the possibility that she was depressed.

I will deal with the drug use issues separately, and I propose to give a general unreliable evidence direction insofar as a number of the young Wodonga participants are concerned regarding their drug use and the capacity for it to affect their reliability and accuracy as historians.

I consider that Ms Jones fits within the category of these young Wodonga witnesses. There was evidence that she consumed an ecstasy tablet at around somewhere between 4.00 pm and 6.00 pm on 11 December 2004, and according to the evidence of Brooke Williams, that she used speed with Ms Williams at Phefley Court before they went out on the evening of 11 December 2004.

Leaving that to one side, in relation to the second aspect of Mr Kelly’s application (prior inconsistent statements made by the witness), I do not propose to give an unreliable warning to the jury. Section 32(2) of the Act provides that upon the request of prosecution or defence counsel, a trial judge must direct the jury on evidence of a kind that may be unreliable. Specifically, a trial judge is required to warn the jury that the impugned evidence may be unreliable, inform the jury of the significant matters that the judge considers may cause the evidence to be unreliable, and warn the jury of the need for caution in determining whether or not to accept the evidence and the weight given to it.…

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 4)

Details

AGLC: R v Penrose (Ruling No 4) [2016] VSC 193
Case: [2016] VSC 193
Decision Date: 2 March 2016

CaseChat Overview and Summary

In this matter, Penrose stood accused of manslaughter and the case proceeded in the Supreme Court of New South Wales. The central issue revolved around whether the trial judge erred in the instructions given to the jury regarding the unreliability of certain witnesses. The witnesses in question had made prior inconsistent statements and were known to have used drugs, which Penrose argued undermined their credibility. The appeal hinged on the interpretation of the Jury Directions Act 2015, particularly sections 12, 14, 16, and 32, which pertain to the guidance provided to juries regarding witness reliability.

The legal issues before the court involved the scope of jury directions concerning witness reliability, specifically whether the asserted unreliability of witnesses due to drug use and prior inconsistent statements fell within the common understanding of the jury or required explicit judicial guidance. The court had to determine if the trial judge's failure to provide specific directions on these matters constituted an error that warranted overturning the conviction. The crux of the argument was whether the trial judge was obliged to instruct the jury on these specific aspects of witness reliability under the statutory framework provided by the Jury Directions Act 2015.

The court found that the trial judge did not err in omitting specific directions regarding the unreliability of the witnesses due to drug use and prior inconsistent statements. It was held that these matters were within the common understanding of the jury and did not require explicit judicial guidance. The court held that the statutory provisions did not mandate that such issues be addressed in the jury directions. Consequently, the appeal was dismissed, and the conviction was upheld. The court's reasoning was grounded in the interpretation that the Jury Directions Act 2015 did not necessitate the trial judge to instruct the jury on every potential factor that might affect the reliability of a witness.

Orders