R v Potter (Ruling No 3)

[2012] VSC 84

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0115 of 2011

THE QUEEN
v
JAMES POTTER	Accused

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2012
DATE OF RULING:	9 March 2012
CASE MAY BE CITED AS:	R v Potter (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2012] VSC 84

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CRIMINAL LAW – Evidence – Admissibility of a record of interview – Lies by accused – Uncharged wrongdoing – Consciousness of guilt – Whether the conduct was intractably neutral or capable of demonstrating consciousness of guilt.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams SC	Solicitor for the Office of Public Prosecutions
For the Accused	Mr D Hallowes	Haines & Polites

HIS HONOUR:

1. On or about 28 November 2010, Penny Pratt was murdered at Boronia in the State of Victoria.  Her body was disposed of in bushland at Olinda.  The Crown contends that the accused, James Potter, acted in concert with Aaron Gibson or aided and abetted Gibson in the murder.  The defence denies Potter’s involvement in the murder.  Potter admits to being an accessory after the fact.

1. Counsel for the defence made application to exclude from evidence a video recorded police interview conducted with the accused on 16 December 2010.

1. The Crown seeks to rely on the interview solely on the basis that there were a number of lies told during the interview.  The Crown seeks to rely on those lies as evidence of Potter’s consciousness of guilt of the offence of murder.  Counsel for the defence submitted that a proper assessment of the lies in the context of the case demonstrates that the probative value of any lies told is intractably neutral between consciousness of guilt of the offence of murder as opposed to some other lesser, uncharged wrongdoing (specifically a consciousness of guilt of the offence of being an accessory after the fact) and therefore should not be admitted into evidence.  Counsel for the defence submitted that having regard to the other evidence, the lies are incapable of being used in conjunction with that evidence to demonstrate that the lies were told because of consciousness of guilt of the offence of murder.

1. There are four lies relied upon by the prosecution:

(1)that Potter last saw Penny Pratt on about 6 November 2010;

(2)that Potter and Gibson did not go around to Penny Pratt’s unit looking for her on 27 or 28 November 2010;

(3)that Potter had never been to the Maroondah Hospital to meet Penny Pratt; and

(4)that Potter could tell the police nothing about the death of Penny Pratt.

1. The Crown submits that these lies are relevant to the issue of whether Potter was involved in the killing of Penny Pratt, both as to the act of the killing itself and Potter’s intentions on that evening.

1. Senior counsel for the Crown submitted that the lies were not intractably neutral and that there was abundant evidence of conduct on 28 November 2010 suggesting that Potter was involved with Gibson from start to finish during a lead up visit to Penny Pratt’s home in company with Gibson, then picking her up from the Maroondah hospital in company with Gibson and the direct evidence of Krelekamp of Potter’s presence with Gibson and Penny Pratt at 54B Dorset Road prior, during and after the killing.

1. In R v Ciantar,[1] the Court of Appeal acknowledged that there would be circumstances in which post-offence conduct would be incapable of being probative of guilt of a charged offence, as opposed to a lesser alternative or another offence where it is disclosed by the evidence.[2]  As an example, the Court said if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully but denied murder, and the only evidence of the killing apart from the admission was that the accused had fled the killing and initially denied involvement in it, the jury could not be properly satisfied that the accused was guilty of murder.  Because of the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence.[3]

   [1](2006) 16 VR 26 (“Ciantar”).

   [2]Ibid 47 [65].

   [3]Ibid.

1. But the Court noted that in most murder cases the evidence is more extensive than that, and that usually the Crown is in a position to present evidence about the relationship, if any, between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and cause of death and other injuries which may have been inflicted on the deceased.[4]

   [4]Ibid 47 [66].

1. In Ciantar, the Court instanced examples when the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.  Such circumstances include where an innocent explanation is so inherently likely that a jury cannot properly regard the conduct as evidence of consciousness of guilt; alternatively, if the post-offence conduct is otherwise intractably neutral.  Whether the post-offence conduct is intractably neutral is a question to be answered by an evaluation of all relevant evidence.  In Ciantar the Court states that where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events is capable of demonstrating such a consciousness of guilt, post-offence conduct should be left to the jury to determine whether it has that effect.[5]  Importantly, the Court specifically states that where evidence of consciousness of guilt, which, although by itself, is equally consistent with consciousness of guilt of an included offence or another offence disclosed by the evidence, is capable, in conjunction with other evidence, of sustaining an inference of consciousness of guilt of the charged offence, it must be left to a jury to determine whether it demonstrates consciousness of guilt of the charged offence.[6]

   [5]Ibid 48 [72] (emphasis added).

   [6]Ibid.

1. In this case, there is other evidence that the jury might take into account in determining whether Potter’s lies demonstrate consciousness of guilt of the charged offence.

1. There is evidence of Penny Pratt’s neighbour, Graeme Flannery, to the effect that Potter and Gibson were looking for Penny Pratt on the night in question; evidence of the switchboard operator at the main enquiries counter at the Maroondah hospital that Potter attended the hospital and asked to see his “sister”; evidence of the security guards at the Maroondah Hospital that Potter attended the hospital, together with Gibson, and persuaded Penny Pratt to leave the hospital with them on the night in question; the content of two 000 calls made by Penny Pratt identifying two people and naming James Potter, made in circumstances of extreme fear; and the evidence of Krelekamp of Potter and Gibson’s actions and statements at the house at the time of the killing. 

1. Viewed in the context of this evidence, the lies cannot be regarded as intractably neutral conduct.  Taken in conjunction with the other evidence, the lies are, in my view, capable of sustaining an inference of guilt of the charged offence.

1. The jury might conclude that by telling the lies Potter was endeavouring to distance himself from the fact that he, in company with Gibson, had actively sought out Penny Pratt and that they had together attended at the hospital late at night to persuade Penny Pratt to accompany them back to Potter’s partner’s house in circumstances where Penny Pratt becomes extremely fearful.  The jury might consider that all of this evidence points to Potter’s involvement in the wrongdoing (which is now characterised as acting in concert or aiding and abetting the offence of murder), specifically that Potter may have agreed with Gibson to murder Penny Pratt or that he assisted or encouraged Gibson to do so; and that his involvement in the killing was before, during and after the fact, and not merely after the fact as the defence contends.

1. In my view, the record of the interview should not be excluded on the basis suggested.  Of course it will be necessary for the jury to be carefully directed in accordance with the principles in Edwards v R to the effect that before the lies can be treated as consciousness of guilt of the offence of murder,[7] the jury must be satisfied having regard to all the evidence that reasonable hypotheses for the lies consistent with innocence are excluded.

   [7]Edwards v R (1993) 178 CLR 193.