R v Serrano (Ruling No 3)

[2007] VSC 207

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2006

THE QUEEN

v

APOLONIO SERRANO

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2007
DATE OF RULING:	24 May 2007
CASE MAY BE CITED AS:	R v Serrano (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2007] VSC 207

---

CRIMINAL LAW – Murder trial – Application to discharge jury – Reference by witness to location where garments belonging to deceased found as ‘Haunted Hills’ – No risk of prejudice to accused – Application rejected.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions
For the Accused	Mr M. Rochford with Mr D. Hallowes	Victoria Legal Aid

HIS HONOUR:

1. The accused man is charged with the murder of Milicia Trailovic at Endeavour Hills on 26 December 2003.  Yesterday, 23 May, the jury was empanelled and opening addresses took place at the commencement of the trial.  Two witnesses have been called on behalf of the Crown.  During the evidence‑in‑chief of the second witness, Detective Senior Constable Newman, Mr Rochford who appears with Mr Hallowes for the accused man made an application that I discharge the jury.  That application was made on the basis that Detective Senior Constable Newman referred to the location at which items said to be those of Ms Trailovic were found as Haunted Hills. 

1. In March 2004 a tracking device was fitted to the accused man's vehicle.  That device revealed that at about 11:30 p.m. on 12 April 2004 the accused's vehicle stopped on the Princes Highway a short distance outside Newborough. 

1. On 22 April 2004 a search of that location was undertaken, under the supervision of Mr Newman, and items of burnt female clothing were found in the course of that search.  Some of that clothing apparently is the same size as clothing worn by Ms Trailovic.  In addition, a witness, Ms Svraka, will give evidence that she recognised some of the clothing as similar to or the same as that of Ms Trailovic. 

1. In his evidence‑in‑chief Mr Newman was asked where the tracking device recorded the movements of the accused's vehicle on 12 April 2004.  He stated that the device tracked the vehicle to a place down in Newborough known as Haunted Hills which was between Trafalgar and Morwell.  It was to that evidence that Mr Rochford took exception. 

1. He told me, in the absence of the jury, that before Senior Constable Newman had given evidence he had said to Mr Gibson, who appears to prosecute, words to the effect, "You're not going to lead that, are you?"  To which Mr Gibson responded by laughing and said, "Yes", and both of them laughed and split up.  A similar account of that conversation was given by Mr Gibson. 

1. As I understand the objection made by Mr Rochford, it could be summarised as follows:

1. He submitted that a haunted place is a place where dead bodies are found or dumped.  It is a place connected with death.  He submitted that those who haunt such places generally have not died from natural causes.  He submitted that the jury might reason that because the place was known as Haunted Hills the accused man felt it would be a good place to get rid of the clothing of Ms Trailovic and her body. 

1. When Mr Rochford raised the objection before me late yesterday my initial response was that the point was entirely without substance and merit and I was minded then to reject it.  However, the objection was taken late in the day and I was concerned that I may not have properly understood the point raised by Mr Rochford.  Accordingly, last night I took the opportunity to read the transcript of the argument.  I consider that I have accurately summarised Mr Rochford's argument with the benefit of the transcript.  As thus summarised I still consider that the argument lacks any substance or merit. 

1. The simple fact is that Mr Newman referred to the location as Haunted Hills because that apparently is its correct name.  Indeed I should remark that his reference to it was a short reference and I doubt that the jury would have noticed or taken note of it.  However, even if the jury did notice and take note of the name of that location, I still consider the submission to be entirely misconceived. 

1. In essence Mr Rochford is concerned that the jury might somehow reason that because that location was named Haunted Hills the accused man for some bizarre or macabre reason was thereby prompted to dump the remains of Ms Trailovic at that place. 

1. The type of mental process which Mr Rochford is concerned the jury might undertake could scarcely be described as speculation let alone reasoning.  I have already directed the jury, and will direct the jury in my final directions to it, as I normally do, that their task is an exercise of the mind, being essentially an intellectual task.  This is a circumstantial case and I will of course give the usual directions relating to the drawing of inferences, and in particular I will give the usual direction distinguishing between inferences and speculation. 

1. However even in the absence of such a direction I would be totally astonished if any juror for a moment would indulge in the type of mental processes which are of concern to Mr Rochford.  In my view the suggestion that a jury would even contemplate taking such an approach vastly underrates, and indeed does a serious injustice to, the maturity, good sense and conscientiousness of our juries.  Lawyers and judges do not have an exclusive monopoly on the powers of reason and rational thought.  That is why we have juries and why we value trial by jury so highly. 

1. In my view there is no risk that the jury would involve itself in the mental processes, which I would not describe as reasoning, of the type ascribed to it by Mr Rochford.  In my view the risk of prejudice which Mr Rochford contends has occurred is so remote as to be for all intents and purposes non‑existent. 

1. The test for discharge of a jury is that the accused man must show a high degree of necessity see R v Crofts[1];  R v Boland[2].  This trial is at early stage.  If I apprehended that there was any risk that the accused man might be prejudiced in his trial by the reference by Mr Newman to Haunted Hills, I would consider it right and indeed my duty to discharge the jury.  However I am not persuaded that there is any such risk and therefore that there is no justification for the discharge of the jury. 

   [1](1996) 186 CLR 427 at 432 Dawson J.

   [2][1974] VR 849 at 866.

1. For those reasons I reject the application to discharge the jury.