R v PP - [2002] VSC 522

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1489 of 2001

THE QUEEN

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2002
DATE OF RULING:	25 November 2002
CASE MAY BE CITED AS:	R v PP
MEDIUM NEUTRAL CITATION:	[2002] VSC 522

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Solicitor for Public Prosecutions
For the Accused	Mr B.J. Bourke with Ms A.C. Fox	Haines & Polites

HIS HONOUR:

During the course of cross-examination on the afternoon of the fifth day of trial, Caitlin Smith was pressed on a number of occasions by Mr Bourke on behalf of the accused to say whether or not there had been any discussion as to why the group with whom she was associated were to go to Kew on Friday 24 August 2001.

After being asked a number of times to say whether or not there had been some such discussion, the witness volunteered the answer: "The only discussion was that we were going to sort things out with PP because he had previously assaulted - - -". At that point Mr Bourke spoke across the witness with the words, "Yes, yes", or I think more accurately, as I recall them, "Yeah, yeah", so as to make it difficult, if not impossible, to hear the last few words spoken by the witness.

This morning, before the jury has been brought back in, Mr Bourke has made application that the jury be discharged because of the possibility that they may have heard all of the words spoken by the witness, and thus conclude that the accused, PP, had been guilty of previous acts of assault.

The application is put on the basis that, if the jury did hear all the words and drew from them the conclusion that the accused had previously committed acts of assault, it would, or at least, could, result in the jury more readily concluding that when the accused committed the stabbing in respect of which he is charged with murder, he had the intent to kill or at least to inflict really serious physical injury.

So far there has not been a precise specification of the way in which the accused proposes to put his case to the jury, but I glean from what was said in the course of Mr Bourke’s opening and so much of the cross-examination as has yet occurred, that it might be suggested that the stabbing was committed in self-defence or, if not, then at least that the accused was provoked or that, although the act of stabbing was unlawful and dangerous, it was not committed with the intent to kill or inflict really serious physical injury, and hence the verdict should be manslaughter.

The application for discharge is opposed by Mr Ryan on behalf of the Crown. He submits, first, that because of the circumstances of the witness's utterance, it is unlikely that the jury heard the words which…

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 PP

Details

AGLC: R v PP [2002] VSC 522
Case: [2002] VSC 522
Decision Date: 25 November 2002

CaseChat Overview and Summary

In the case of R v PP, the defendant was on trial for the alleged murder of an individual. The dispute centred around whether the defendant had acted with intent to kill or inflict really serious physical injury, or if his actions were in self-defence or provoked. The matter was heard in the Supreme Court of Victoria. The primary legal issue that the court had to decide was whether the jury could be discharged due to a potentially prejudicial statement made by a witness during cross-examination. The second issue was whether this statement would affect the jury's capacity to fairly deliberate on the intent of the accused at the time of the stabbing.

The court examined the circumstances of the witness's statement and considered whether the jury might have heard and understood the full extent of the statement. The judge found that it was unlikely that the jury had heard the potentially prejudicial words, as they were effectively drowned out by the defence counsel. Even if some members of the jury had heard the words, the court was of the opinion that the witness's statement only amounted to an expression of belief and not evidence of previous assaults by the accused. The court also noted that there was already ample evidence presented regarding the events leading up to the stabbing, and the jury would likely consider this context when deliberating on the intent of the accused. Given these factors, the court concluded that there was no significant risk of prejudice to the defendant's case and denied the application to discharge the jury.

Based on the reasoning outlined above, the court refused the application to discharge the jury, allowing the trial to continue. The judge was confident that the jury would approach their final deliberations with an understanding that there was no evidence of previous assaults by the accused and no basis for them to conclude or speculate on whether the accused had been guilty of any previous acts of assault. As a result, the court did not consider the prejudicial statement to have created a high degree of need for the discharge of the jury, and the trial proceeded accordingly.

Orders