R v PP

[2002] VSC 522

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1489 of 2001

THE QUEEN

v

PP

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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:

1. 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. 

1. 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.

1. 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.

1. 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. 

1. 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. 

1. 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 were spoken or, if they did, that they understood their significance, and that even if the jury did hear and understand the significance of the words, they amount to no more than an expression of belief on the part of the witness that PP had previously assaulted someone.

1. Mr Ryan submits further that inasmuch as there has already been a significant volume of evidence as to what occurred at the Carey after-party a week before 24 August 2001 and the consequent sense of grievance which arose between the group with whom the witness was associated and the accused, the jury would conclude no more from what was said by the witness than that there was a sense of grievance the result of the events at the party.

1. In my opinion, it is unlikely that the jury heard the last couple of words spoken by the witness.  I could not hear them because Mr Bourke deliberately and I thought effectively, spoke over them to drown them out.  There is, however, a slight possibility that at least some members of the jury, with better hearing than I, heard the words and may attribute some significance to them.

1. I also consider that it is not a complete answer to say, as Mr Ryan would have it, that the only conclusion about assault which the jury would draw from the words of the witness, was that it was something which related to the events of the Carey after party.  Thus far all the evidence about the accused's role at the after party has been that he was not in any way involved in the assault which occurred there, but rather sought to prevent it.

1. I think, however, there is more force in Mr Ryan's submission that at its highest what was said by the witness amounts to no more than an expression of belief.  After all, the question which she was pressed to answer on a number of occasions was not why she and the persons with whom she was associated were going to Kew, but whether there was any discussion about why they were going to go to Kew, and the answer which she was ultimately compelled to give was that there was discussion to the effect that they were going, because PP had previously assaulted.

1. I accept that that is not a complete solution to the problem to which the witness's answer has given rise, but I do not accept that the problem is of the proportions which have been submitted to me by Mr Bourke.  Of course it would have been preferable if the answer had not been given.  But I think in the end, given the way in which the answer was articulated;  the point at which the answer was given in the course of the trial;  the evidence which remains to be given;  and the sorts of directions which might in general terms be given in the course of the final charge, one can have confidence that the jury will approach their final deliberations knowing that there is no evidence of any previous assaults by the accused before them and no basis for them to conclude or even to speculate as to whether the accused has been guilty of any previous acts of assault.

1. That being so I do not consider that there is a perceptible risk of the jury being left less disposed than might otherwise have been the case, to conclude that the acts with which the accused is charged were committed without intent to kill or inflict really serious physical injury or under provocation.

1. For those reasons, I do not consider that what has occurred constitutes such prejudice to the conduct of the defence as to create a high degree of need for the discharge of the jury and, accordingly, I refuse the application.

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