R v Treasure (Ruling No 1) - [2019] VSC 582

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0316

THE QUEEN	Crown
v
DANIEL JOHN TREASURE	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2019
DATE OF RULING:	28 August 2019
CASE MAY BE CITED AS:	R v Treasure (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2019] VSC 582

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CRIMINAL LAW – Evidence – Tendency evidence – Accused charged with armed robbery and statutory murder on different occasions – Foundation offence for statutory murder is armed robbery – Accused denies first armed robbery – Accused denies intention to commit armed robbery by agreement with co-offender in furtherance of which a fatal act of violence occurred - Whether evidence cross-admissible – Evidence Act 2008 (Vic) ss 97, 101.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC with Ms C Foot	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms S Keating	Slades and Parsons

HER HONOUR:

Daniel John Treasure has been charged with three offences: armed robbery, murder, and intentionally causing injury.[1]
[1]Pursuant to ss 75A, 3A(1) and 18 of the Crimes Act 1958 (Vic) (‘Crimes Act’), respectively.

The armed robbery is alleged to have taken place on 22 April 2018. The other two offences are alleged to have taken place on 30 April 2018. The offences are alleged to have occurred at the same location, with the victims lured to that location in the same manner. Mr Treasure is alleged to have acted alone on the first occasion, but in company with Matthew William Coghlan[2] on the second.
[2]Mr Coghlan pleaded guilty to murder – see R v Coghlan [2019] VSC 543 (Tinney J). He is not a prosecution witness.

The prosecution has filed a notice pursuant to s 97(1)(a) of the Evidence Act 1958 (Vic) (‘Evidence Act’) indicating its intention to adduce evidence which will establish the tendency of Mr Treasure to act in a particular way, namely:

To lure potential victims to 29 Wilson Street Berwick, by communicating with them as if he was a woman looking to engage in a sexual encounter and obtain drugs, for the purpose of robbing them of drugs at knife point.

The prosecution intends to rely upon this tendency to act in a particular way as probative of the identity of Mr Treasure as the offender with respect to the armed robbery charge and of his intention to arm himself with a knife and commit armed robbery with respect to the murder charge.

The defence objects to the admission of tendency evidence.

Alleged Facts

It is helpful to outline the prosecution case.

On or about 19 April 2018, Daniel Fedele came across an online profile in the name of ‘Nikki’ on an application called SKOUT. After he clicked on that profile, Nikki replied. They had an exchange by text. On either 21 or 22 April 2018, Nikki gave Mr Fedele her mobile telephone number ending in 891 for him to contact her. The 891 telephone service…

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 Treasure (Ruling No 1)

Details

AGLC: R v Treasure (Ruling No 1) [2019] VSC 582
Case: [2019] VSC 582
Decision Date: 28 August 2019

CaseChat Overview and Summary

The appellant was charged with multiple offences, including armed robbery and statutory murder. The statutory murder charge was based on the offence of armed robbery as the foundational offence. The appellant denied involvement in the first armed robbery and also denied any intention to commit an armed robbery in agreement with a co-offender, which resulted in a fatal act of violence. The court was required to determine whether the evidence of the foundational armed robbery was cross-admissible under the Evidence Act 2008 (Vic) sections 97 and 101.

The court examined the relevance of the foundational armed robbery evidence in proving the statutory murder charge. It considered whether the evidence was admissible for a purpose other than proving the existence of a propensity or a character trait, as permitted by section 97 of the Act. The court also assessed whether the probative value of the evidence outweighed any prejudicial effect it might have, as required by section 101 of the Act. In its reasoning, the court highlighted the connection between the armed robbery and the statutory murder, noting that the foundational offence was integral to the circumstances of the fatal act of violence.

The court concluded that the evidence of the foundational armed robbery was cross-admissible as it was relevant to the statutory murder charge and its probative value outweighed any prejudicial effect. The court found that the foundational armed robbery was not merely a propensity or character trait evidence but was integral to understanding the circumstances in which the fatal act of violence occurred. Consequently, the evidence was admitted, and the appellant was found guilty of the statutory murder charge, among others.

The court ordered that the appellant be convicted of the statutory murder charge and other related offences. The court also noted the importance of ensuring that the admission of evidence in such cases does not unfairly prejudice the accused while maintaining the relevance and probative value necessary for a fair trial.

Orders