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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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. Section 14 of the Act requires the judge to give a requested direction unless there are good reasons for not doing so.[1]

   [1]Relevant considerations to the assessment of ‘good reasons’ are set out in s 14(2) of the Act. Notably, s 16 requires a trial judge to give a direction if there are substantial and compelling reasons for doing so.

1. Section 32 is broadly a reflection of the old s 165 of the Evidence Act 2008 (the revised provision in that Act is now applicable only to civil proceedings). There are some subtle differences in the two provisions, notably the old s 165(1) set out a non-exhaustive list of the kinds of evidence that may be unreliable, and s 165(3) incorporated the ‘good reasons exception’ now set out in s 14(1) of the current Jury Directions Act 2015.

1. The substance of Mr Kelly's submission was that Ms Jones’ inconsistent accounts of the 11 and 12 December 2004 were a reflection of a fundamental reliability.  Mr Kelly noted that Renee Jones’ statement of 17 December 2004, perhaps based on Ms Jones’ 12 December discussion with detective Murray Sleep (although the statement was in fact taken by another police officer) had Renee Jones and Brooke Williams returning to Phefley Court at 3.00 am on 12 December 2004.

1. Renee Jones later provided a detailed narrative by telephone to Mr Forehan on 10 February 2005, in which she described a conversation that apparently occurred at Charles Street on 11 and 12 December 2004 involving Naomi Nightingale, Paul McClear and Brooke Williams, during which Brooke Williams became upset after the conversation turned to the topic of rape, and left Charles Street in Renee's car for a time.  This telephone account is the first occasion at which Renee Jones asserts that she and Brooke Williams returned to Phefley Court at around 6.30 am.  The telephone account was then recanted in part by Renee Jones on 18 February 2005.

1. Ms Borg, who prosecutes with Ms O’Brien, submitted that the inconsistency of these statements was thoroughly explored in Renee Jones’ evidence at trial and an explanatory account was given.  In evidence given by the informant, Mr Forehan this morning, these inconsistent accounts were further explored by Mr Kelly in cross‑examination on behalf of the accused.  It is a matter for the jury as to whether they accept or reject the explanatory account that was given, and it is also a matter for the jury as to how they use the inconsistent accounts that have been given in the event that they find that, in fact, the accounts were inconsistent.

1. In respect of s 165 of the Evidence Act, the Court of Appeal have referred to the principle that the requirement to warn with respect to reliability owes, ‘partly to the inherent dangers (of the evidence) involved, and partly to the fact that that the danger is not necessarily obvious to a lay mind’.[2] I should note that I regard this principle as informative of my assessment of whether Renee Jones’ evidence is unreliable the s 32 sense, but that it is not an applicable principle in this matter in and of itself.[3]

   [2]Yong & Ors v The Queen [2015] VSCA 265, at [69] citing Brennan J in Bromley v The Queen [1986] HCA 49.

   [3]Section 34 of the Jury Directions Act abolishes any Common Law rule requiring a judge to direct a jury on unreliability except for as provided for by that Division. I thus take the above into account as informative on the assessment I make.

1. I decline to give the unreliable evidence warning on the basis that there is a good reason for not doing so,  specifically:

A.the inconsistencies in the witness's evidence identified by counsel for the accused are clear and have been well explored in cross‑examination; and also

B.the witness does not fall into any particular class that may be unreliable in a manner that is not in the jury's common understanding of unreliability such as, for instance, a gaol informer, an accomplice or the like.

1. There is nothing inherent, in my view, about the type of Renee Jones’ evidence that makes it unreliable.  The inconsistencies that Mr Kelly highlighted to me were equally highlighted in his cross‑examination of Renee Jones, and in the cross‑examination of Mr Forehan.  It is my view that the jury do not require a direction in resolving these inconsistencies in the assessment of this witness’s reliability and credibility.