R v Reid (Ruling No 1)
[2009] VSC 221
•9 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1684 of 2008
| THE QUEEN | Plaintiff |
| v | |
| DAVID JOHN REID | Defendant |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3 June 2009 | |
DATE OF RULING: | 4 June 2009 | |
DATE OF REASONS: | 9 June 2009 | |
CASE MAY BE CITED AS: | R v Reid (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 221 | First Revision: 10 June 2009 |
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CRIMINAL LAW – Evidence – Criminal negligence and intentionally causing injury – Prior assault in same drinking session – Whether relevant – Whether probative value outweighs prejudicial effect.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Lincoln | Office of Public Prosecutions |
| For the Defendant | Mr G Georgiou | Victoria Legal Aid |
HIS HONOUR:
Mr Reid is charged on two counts. The first is manslaughter by criminal negligence. The second is intentionally causing injury. The alleged victim was his defacto partner at the time. It is alleged that she died as a consequence of the accused’s negligent failure to render assistance after she bled profusely from an injury inflicted by the accused.
In records of interview, the accused gave an account of events in which he said that on the night before his defacto partner was found dead, he had struck her with the back of his hand on her lip (which I will refer to as the back hand strike), and he had hit her with a coffee cup causing a laceration to the temple area of her head (which I will refer to as the coffee cup incident). The laceration to the temple area is the injury which bled profusely. The coffee cup incident is the foundation for the second count.
Counsel on behalf of Mr Reid submitted that the evidence of the back hand strike was so lacking in probative value as to be irrelevant and was liable to be misused as showing a violent propensity. He submitted that the accounts of events given by the accused in the records of interview were so uncertain that there was no basis for a conclusion that the two incidents were related or were proximate in time.
On 4 June 2006 I ruled the evidence admissible and gave brief reasons which I said I might supplement later. I now set out my reasons more fully.
Having read the records of interview, it seems to me that it would be clearly open for the jury to find that, on the accused’s account of events, the back hand strike occurred in the same drinking session as the coffee cup incident, and that the back hand strike was before the coffee cup incident but at about the same time.[1]
[1]ROI 21/5/06: 136-138, 146, 161-162.
ROI 22/5/06: 65, 68, 75, 118, 126, 172, 174-193, 271-299, 385-388, 391-395, 448-452, 514-525, 530.
There are three reasons why in my view this evidence is relevant.
The first reason is that, on the accused’s account of events, the back hand strike and the coffee cup incident are relevantly part of the one transaction. In this respect I refer to the records of interview[2] and to the principles I discussed and the authorities I considered in R v A B & Baker (Ruling No 2).[3] My conclusion is that it is necessary to admit evidence of both incidents in order to ensure that the jury has a full account of what happened at the relevant time.
[2]See footnote 1 above.
[3][2008] VSC 107.
The second reason is that the injury suffered by the deceased as a result of the back hand strike is part of the Crown case on an issue which I would describe as being: the nature of the peril faced by the deceased or the extent of the deceased’s helplessness. The authorities reviewed in the course of pre-trial argument reveal that this is an issue which may affect the existence and the nature of any duty of care owed.[4] In this context, the Crown says the deceased had injuries in addition to the coffee cup injury, and in particular the Crown says that she had received another blow to the head in the back hand strike.
[4]The authorities and materials considered were R v Cowan [1955] VLR 18; Hargrave v Goldman (1963) 110 CLR 40; Chapman v Hearse (1961) 106 CLR 112; Regina v Church [1966] 1 QB 59; McKinnon v Burtatowski [1969] VR 899; R v Joukkadar, unreported, Supreme Court of New South Wales – Court of Criminal Appeal, 13/6/75; R v Taktak (1988) 34 A Crim R 334; R v Lawford (1993) 69 A Crim R 115; R v Wacker [2002] EWCA Crim 1944; R v Taber (2002) 136 A Crim R 478; Halsbury’s Laws of Australia, [300-20] and [300-50].
The third reason is that the issue of accident arises in relation to both counts. The defence contends that the Crown cannot establish beyond reasonable doubt that the injury suffered in the coffee cup incident was not accidental. The Crown maintains in relation to the manslaughter count that it does not matter whether the blow received by the deceased in the coffee cup incident was accidental or not, but the defence takes a different view. The authorities reviewed in the course of pre-trial argument indicate that the existence and nature of any duty of care may be affected by the question of whether or not the injury the deceased suffered was caused by the accused’s wrongful conduct.[5] The back hand strike which occurred, at least on one view of the evidence, in the same drinking session but prior to the coffee cup incident, is relevant to the issue of whether the coffee cup incident was accidental.
[5]See footnote 4 above.
For the three reasons I have given it seems to me that the evidence concerning the back hand strike is both relevant and probative.
The evidence does have a propensity aspect to it and it is evidence of an uncharged act. My conclusion is that notwithstanding these aspects of the evidence its probative value does outweigh its prejudicial effect and that it is just to admit the evidence.
I will hear submissions at an appropriate time on the issue of any directions which I should give to the jury about it.
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