R v Tamme
[2005] VSC 103
•5 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1531 of 2001
| THE QUEEN |
| v |
| EMMA JAINE TAMME |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 APRIL 2005 | |
DATE OF RULING: | 5 APRIL 2005 | |
CASE MAY BE CITED AS: | R v TAMME | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 103 | |
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Criminal Law and Procedure – Murder trial – Application for the exclusion of the evidence of plea of guilty of manslaughter made in previous trial – Applicable principles considered – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr M. O'Connell | Slades & Parsons |
HIS HONOUR:
This is an application on behalf of the accused Emma-Jaine Tamme, that a plea of guilty to the manslaughter of Katriana Smyth entered in her initial trial for murder, not be led in evidence by the Crown in the present trial.
A further ancillary application is that portions of the opening address of her counsel in the first trial, which confirmed the effect of the guilty plea, and set out the issues the jury would have to consider, likewise be ruled inadmissible.
The factual background of this application as disclosed by the trial transcript may be set out briefly.
On 18 October 2002, in the course of a voir dire, the accused was arraigned and pleaded not guilty to murder, but guilty to manslaughter. At this time her counsel informed the court that a formal offer to plead guilty to manslaughter had been made to the Crown in about the preceding week (p.111).
Subsequently, on 22 October 2002 the same plea was made in front of the jury panel. The Crown did not accept the manslaughter plea, and the trial for murder continued (p.267).
Ultimately, the accused was convicted of murder but was granted a retrial on the basis of a misdirection by the trial judge as to the existence of material potentially corroborative of the evidence of the principal Crown witness, Michelle Jackson. Ms Jackson had pleaded guilty to manslaughter and was clearly in the position of an accomplice. She described, inter alia, an attack by the accused and a co-offender, Natasha Morgan, upon the deceased. (For completeness I add that Miss Morgan was also convicted of murder.)
As I apprehend the major aspect of this application, it is argued that the prejudice occasioned by leading the evidence of the guilty plea would outweigh its probative value and may, or would, result in an unfair trial.
The case which is most analogous to the present situation is that of R v D'Orta-Ekenaike[1], where the Crown was permitted to lead evidence of a plea of guilty to rape made by the accused at the committal proceedings. In determining that such evidence was admissible, the Victorian Court of Appeal referred with approval to the earlier decision of R v Broadbent[2], which was to the same effect.
[1](1998) 2 VR 140
[2][1964] VR 733
D'Orta-Ekenaike's case conveniently gathers most of the authorities on this narrow area of the law, and it is unnecessary to refer to them separately.
It was not submitted by the defence that the distinction between a guilty plea at committal and a guilty plea at trial was significant, or that the evidence of the plea lacked probative value. Further, there was no claim that the plea of guilty was other than voluntarily made. Indeed, none of the factors which, on the authorities, would lead to the granting of leave to withdraw a plea of guilty, were advanced. I set out the relevant cases and principles in R v Douglass[3]. (See also Meissner v R[4] and R v Moxham[5]).
[3](2004) 146 A Crim R. 575
[4]184 CLR 132 at 157 per Dawson J
[5][2000] 112 A Crim R. 142
If any such factor could be demonstrated by an accused, it would clearly be relevant in considering the actual probative value of a plea of guilty and, in itself, may result in evidence of such a plea being ruled inadmissible. The demonstration of the existence of any of these factors would normally require the adducing of evidence by an accused person. That is not to say that a voir dire is an essential prerequisite to an application of the kind made in this case. The evidentiary basis for such an application may be founded upon inferences drawn from the transcript or in concessions or admissions made by the parties.
In the present case, however, no evidence was called and all that was said that could be regarded as remotely touching upon any of the factors which may affect the probative value of the plea was a statement from the Bar table that the accused was aged 23 at the time and had little experience of the criminal justice system. It followed, so it was argued, that the accused was heavily reliant on her counsel's advice. So she may have been but in that regard she is in no different position to many persons who come before the courts; and it needs to be said that there is absolutely no evidence the accused was oppressed by her former counsel.
The real thrust of the defence submission was that, in hindsight, with the aid of the vision of the Court of Appeal, the plea of guilty to manslaughter was ill-advised. It was a tactical, forensic decision, so it was asserted, which conceded too much to the prosecution. No evidence was called to justify this proposition. Rather, it was presented as self-evident from the analysis of the evidence of the first trial conducted by the appellate court.
In my view, as I indicated during argument, such a proposition is by no means self-evident. The plea to manslaughter, first offered prior to trial, had the effect of placing before the jury at the outset the extent to which the accused claimed involvement in the killing of Ms Smyth. It showed her as being up front with the jury prior to an attack upon the credibility of the chief Crown witness, Jackson.
In the circumstances here obtaining, it may be doubted whether an erroneous forensic decision, without more, could ever be seen as an independent factor which may vitiate a plea of guilty. In any event, there are no demonstrated factors which lessen the potency of the plea in the present case. Its admission into evidence, like all potent evidence against an accused, carries with it a measure of prejudice, and the jury will eventually have to be instructed in the use they may make of it. However, in the result, I rule that the evidence of the guilty plea is admissible.
I turn now to the statements of the accused's counsel found at page 308 of the transcript. They are in these terms:
"Emma-Jaine Tamme has confessed in your presence, by entering a plea of not guilty to murder and guilty to manslaughter. She has confessed to each and every element or component of the offence of manslaughter. I would only be repeating what my learned friend has put to you.
The central issue in this trial is intention, state of mind, because the Crown, in order to establish murder beyond reasonable doubt, must establish state of mind, guilty mind, intention. That is the issue."
This matter may be dealt with in short compass. The first passage does no more than set out the legal implications of the plea of manslaughter and is arguably superfluous. The second passage states the then defence counsel's legal view of the issues to be contested. None of this material constituted evidence in the first trial and I do not propose to permit it to be given any evidentiary weight in this retrial.
Accordingly, I rule those statements to be inadmissible.
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