R v PP - [2002] VSC 523

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 1489 of 2001

THE QUEEN

---

JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2002
DATE OF RULING:	27 November 2002
CASE MAY BE CITED AS:	R v PP
MEDIUM NEUTRAL CITATION:	[2002] VSC 523

---

---

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:

In the absence of the jury, application has been made by counsel on behalf of the accused to have admitted into evidence the record of some of the convictions of the deceased. Those convictions include:

§ convictions on 3 October 2000 for armed robbery, recklessly causing injury, aggravated burglary with an offensive weapon, robbery and unlawful assault;
§ convictions on 21 February 2001 for unlawful assault, common law affray, possession of a dangerous article, forging a prescription for a drug of dependence, attempted possession of prescribed drugs, handling, receiving and retention of stolen goods, theft from a shop, and consumption of liquor by a minor;
§ a conviction on 8 August 2001 for possession of cannabis.

It has been submitted on behalf of the accused that evidence of the convictions is admissible in accordance with the principles adumbrated by the Full Court in R v Gibb & McKenzie[1], where the court said:

“The question posed by the application for leave to appeal is thus whether an accused may lead evidence of the disposition or propensity of the person under whose duress he says he has acted in support of his defence of duress. Now, evidence of an accused’s ‘bad character’ is relevant to the general issue whether he is guilty of the crime charged, but in the ordinary case it cannot be led by the Crown: it is excluded for reasons of policy and humanity. See Attwood v. R[2] in the case of a co-accused who seeks to raise a defence of duress, however, no such considerations lead to the exclusion of the evidence and the question for decision, therefore, is whether the evidence is relevant.
When a defence of duress is raised it is not now to be regarded as making the act of the accused involuntary: it is a defence on its own. See D.P.P. for Northern Ireland v. Lynch[3]. ‘A crime is said to be committed under duress (or duress per minas) when there is a threat of physical harm in case the act be not done’: Glanville Williams, Criminal Law, The General Part[4], quoted in R. v. Dawson[5]. See also R. v. Hurley and Murray[6]. The first element to be established by the accused who raised duress (for he bears some evidential burden: R. v. Bone[7] or negatived by the Crown is that there has been a threat of physical harm made. An issue is thus raised in the trial. In the present case it was an issue between the Crown and Claridge and…

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 523
Case: [2002] VSC 523
Decision Date: 27 November 2002

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v PP revolved around an application by the accused to admit the record of certain convictions of the deceased into evidence. The accused sought to introduce evidence of the deceased's violent criminal history to bolster their defence of self-defence or provocation against charges of assault. The Crown opposed the application, arguing that the evidence was either irrelevant or potentially prejudicial.

The legal issue before the court was whether evidence of the deceased's prior convictions for violent offences was admissible to support the accused's defence of self-defence or provocation. The court considered whether such evidence could be relevant to the nature of the act by the deceased that the accused claimed to have reacted to, and whether it could assist the jury in determining whether the deceased's actions constituted provocation or justified a self-defence response.

Justice Nettle ruled that evidence of the deceased's violent convictions was indeed relevant and admissible. The court found that such evidence could logically assist the jury in concluding whether the deceased's actions were violent enough to warrant a self-defence reaction or sufficiently provocative to justify the accused's response. The court emphasised that where self-defence or provocation was put to the jury, evidence of the deceased's violent disposition was pertinent to the issue. However, convictions for non-violent offences, such as drug possession and shoplifting, were deemed irrelevant and excluded from evidence.

The final orders of the court allowed the accused to question the informant about the deceased's convictions for armed robbery, recklessly causing injury, unlawful assault, unlawful assault, common law affray, and possession of a dangerous article. Convictions for non-violent offences were excluded from the evidence.

Orders