R v Presnell

[2001] VSC 188

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2000

THE QUEEN	Plaintiff
v.
DALE BRUCE PRESNELL`	Defendant

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JUDGE:	VINCENT, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 MAY 2001
DATE OF RULING:	18 MAY 2001
CASE MAY BE CITED AS:	R. v. PRESNELL
MEDIUM NEUTRAL CITATION:	[2001] VSC 188

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CATCHWORDS:      Admissibility of witness evidence – Prejudicial effect of potential outbursts – R. v. Christie – Exercise of judicial discretion.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. McArdle QC	Office of Public Prosecutions
For the Accused	Mr. P. Morrissey	Leanne Warren & Associates

HIS HONOUR:

1. I consider that the framework within which the objection taken by Mr Morrisey to the introduction of the impugned evidence is sufficiently clear that I need not further address it at this stage.  I also consider that the discussion which has taken place has sufficiently identified the basis upon which that objection has been taken, and the considerations which are relevant to the determination of the question have also emerged clearly.

1. It is in my view apparent that the proposed evidence of Ms McKay, that the accused told her in a two week period that encompassed the death of the deceased and the accused's subsequent arrest that he thought that "a guy" with whom he had had a fight was dead, is in the context of this case admissible and relevant.  In conjunction with other evidence, it could assist the jury in determining the question whether they were satisfied that the accused man was involved in the death of the deceased.

1. I do not understand, although counsel for the accused has not conceded that point, that ultimately the relevance of the evidence is the subject of serious controversy.  What as I perceive his argument to be is that the witness, having also stated in the absence of the jury that the accused man told her that he has had lots of fights, she stated that he thought that he was a "big shot" and that he had killed someone, she further referred to him as a "boxer", to cross-examine the witness with respect to the admissible evidence would, it was suggested, be highly likely to attract not only statements of that kind, which of themselves would be perceived as prejudicial, but also if the approach was adopted that the accused man may have been referring in the admissible evidence to some other incident, introduce admissions of other violent behaviour in a case where a central question is the identity of the perpetrator of a fatal attack upon the deceased.  The introduction of such material would, the argument proceeded, possess a potential for very serious unfairness.

1. A further proposition, briefly expressed, however it did not suffer by reason of that brevity, to the effect that the prejudicial value of this evidence outweighed its probative value in any event based upon R v. Christie, was also advanced.

1. Ultimately, I have arrived at the view that notwithstanding the potential for a measure of prejudice to be attracted should one of a number of possible courses be adopted by the defence with respect to it, the evidence of the witness can be admitted.

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