R v Pp

[2002] VSC 542

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 1489 of 2001

THE QUEEN

v

PP

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2002
DATE OF RULING:	3 December 2002
CASE MAY BE CITED AS:	R v PP
MEDIUM NEUTRAL CITATION:	[2002] VSC 542

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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 his final address to the jury, counsel for the Crown submitted that the jury should be very careful in deciding whether they accept SP and Dion Filippopoulos as witnesses of truth with respect to the lull or break in the action after SP was struck over the head with a pole.

1. In substance, Mr Ryan put to the jury that SP and Dion Filippopoulos were more inclined to have given evidence, that there was no lull or break, because the absence of a lull or break in the action provided a basis for PP to claim that he acted in self defence.

1. At the conclusion of Mr Ryan's address, application has been made in the absence of the jury by Mr Bourke on behalf of the accused that I discharge the jury.  The application is put on the basis that by suggesting that SP and Dion Filippopoulos were not telling the truth, Mr Ryan was in effect inviting the jury to conclude that SP and Dion Filippopoulos had conspired together, and perhaps also with the accused, to present a version of events calculated to lead to a verdict of self defence.

1. It was further submitted that the damage thereby done to the accused’s case of self defence was so great that it could not be corrected by submissions on behalf of the accused, or by direction by me to the jury, and therefore that the jury ought be discharged.

1. The application for discharge was opposed, first, on the basis that there is nothing improper or inappropriate in what was said by Mr Ryan to the jury about the attitude which they should take to the evidence given by Dion Filippopoulos and SP on the question of the lull, and secondly, and in any event, because the submissions on behalf of the accused are yet to come, as is also my final charge to the jury, and the matter can be dealt with then if there is a need to do so.

1. I adjourned briefly so that attempts could be made to obtain a transcript of the exact words used by Mr Ryan, but it has not been possible to do that.  Therefore, I rely upon the note which I took of what was said by Mr Ryan and which I think in substance to be substantially complete.  It leaves no doubt in my mind that Mr Ryan did put squarely to the jury that they should doubt SP and Dion Filippopoulos as witnesses of truth, at least in respect of the evidence which they gave about the lull or break.

1. I do not, however, propose to discharge the jury.  Although what was said by Mr Ryan to the jury was something which I would place in the category of playing hard, I do not consider that it crossed the line into the realm of what should be regarded as inappropriate or improper.

1. The Crown has an obligation to call relevant witnesses, subject to some exceptions not presently applicable, but it is not obliged to accept the truth of all that which they say.

1. It is open to counsel for the Crown, if he considers it appropriate to do so, to put to the jury that they should doubt the accuracy or sometimes even the truthfulness of a witness called on behalf of the Crown.

1. Furthermore, even if the line of propriety had been crossed, and as I say, I do not consider that it has been, the fact that submissions on behalf of the accused are to follow means that there is ample opportunity for Mr Bourke, on behalf of the accused, to point out to the jury the passages in the transcript of evidence of Mr and Mrs Bruckner, especially at p.354 at lines 10 to 22, and p.627 at lines 10 to 21, and 630 at line 12 and following, which are said by Mr Bourke to demonstrate that what was said by SP and Dion Filippopoulos is wholly supported by the Bruckners' evidence.

1. Finally, it remains for me to deliver a charge to the jury, and I intend in that to point out to the jury that what is said by counsel is only an argument;  not the evidence and the evidence upon which they are to rely when they retire to consider their verdict.

1. The application for discharge is refused.  I will ask that the jury now be brought back.

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