R v Trent

[2007] VSC 174

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT WARRNAMBOOL

CRIMINAL DIVISION

No. 1531 of 2006

THE QUEEN

V

SHANE HARVEY TRENT

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JUDGE:	KAYE J
WHERE HELD:	Warrnambool
DATE OF HEARING:	14 May 2007
DATE OF RULING:	14 May 2007
CASE MAY BE CITED AS:	R v Trent
MEDIUM NEUTRAL CITATION:	[2007] VSC 174

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CRIMINAL LAW – Murder trial – Admissibility of evidence that the accused man had been selling drugs to the deceased man’s son – Whether truth of allegations make it more probable that the accused acted in anger – Evidence inadmissible – Slight probative value outweighed by prejudicial effect.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Barry	Office of Public Prosecutions
For the Accused	Mr S. Lindner	Dwyer Robinson Pty Ltd Lawyers

HIS HONOUR:

1. The accused man has been charged with the murder of James De Bono on 27 November 2005.  The incident which led to Mr De Bono’s death commenced at about 11.20 a.m. on 27 November 2005 in a flat at 57 Grieve Road Warrnambool.

1. It appears that that morning Mr De Bono had attended the flat which was occupied by a friend of his, Mr Wesley Potter.  Shortly thereafter and for unrelated reasons the accused man also attended the same flat.  After the accused man arrived, Mr De Bono accused the accused man of selling drugs to Mr De Bono’s son.  The accused man denied that allegation. 

1. A verbal argument then occurred inside the flat.  Subsequently a further argument and an altercation occurred outside the flat.  In the course of that altercation the accused man obtained a knife from the occupant of the flat.  The deceased man obtained a piece of wood from his car.  There will be a factual issue at the trial as to whether the accused obtained the knife before or after Mr De Bono took hold of the piece of wood.

1. When both men were holding their respective implements a further confrontation occurred in the course of which the accused man stabbed the deceased.  He died of a single stab wound to the left side of his chest.

1. The facts which I have just stated oversimplify what actually occurred at the flat, but are sufficient for the purposes of this ruling.  Clearly on those facts there will be an issue at the trial as to whether the accused man was acting in self defence. 

1. The Crown case is that the accused man was the aggressor in the confrontation.  Alternatively, that the accused man was not acting reasonably in self defence.  In that context the Crown wishes to lead evidence to establish that the accused man had, in fact, been selling drugs to the deceased man’s son. 

1. Mr Barry, who appears to prosecute in this case, has submitted that that evidence would be relevant because it would explain what the Crown alleges is the accused’s angry action to the allegation made by the deceased that he had been selling drugs to his son.  Mr Barry has submitted that the Crown case will primarily be that the accused man acted out of anger when he took hold of the knife and stabbed the deceased.  In that context he has submitted that if the allegation made against the accused man was true rather than untrue it would be more likely to have given rise to an angry reaction on behalf of the accused.  For those reasons Mr Barry has submitted that the evidence is admissible in the trial.

1. On the other hand, Mr Lindner, who appears on behalf of the accused, has submitted that the evidence is not relevant and that it is arguable whether a true as distinct from an untrue allegation of drug dealing is more or less likely to engender anger on behalf of the accused man.

1. He further submitted that the evidence was of limited relevance and ought to be excluded in the exercise of my discretion.

1. The starting point in determining this question lies, I think, in the ordinary principle, which is a cardinal principle of our criminal justice system, that ordinarily the Crown is not entitled to lead evidence of other wrongdoing or criminal conduct on behalf of an accused man, unless the Crown is able to establish that that evidence has a clear relevance to an issue in the trial.  In such an event, that evidence may nonetheless be excluded in the exercise of the judicial discretion if its probative value is outweighed by its obvious prejudicial potential.

1. It must be understood that that principle which I have just enunciated is fundamental to our criminal justice system.  For centuries our courts have stood against the admissibility of evidence which might blacken the character of the accused in the eyes of the jury, and thus divert the jury from a proper assessment of the facts which are in issue in the case. 

1. The accused man is to be tried in this case on the question as to whether he murdered the deceased man and, in particular on the facts of this case, as to whether he was acting in self-defence, either under the Homicide Act 2005 or at common law.

1. With that background, I then turn to Mr Barry’s submission.  In my view it is indeed questionable as to whether the making of a true, as distinct from an untrue, allegation of drug trafficking against the accused would be more likely to have angered him in the facts of this case.  Indeed, I have substantial doubt as to whether that premise really can hold water.

1. If that premise is in fact correct, and if in fact such an allegation may in the minds of some people be more likely to engender anger, certainly there is a strong contrary argument, namely that the making of an untrue, rather than a true, allegation is equally likely to have also engendered anger.  Thus, if the evidence which the Crown sought to adduce in this case were admitted by me, its relevance to the facts in issue in this case would be, I think, quite limited. 

1. On the other hand, the prejudicial potential of that evidence could be quite grave.  That potential would be to prejudice the jury against the accused man, not by virtue of evidence that squarely related to a central issue in the case, but rather evidence which had equivocal value in enhancing the Crown’s case.

1. In such a case I would find it difficult to allay any such prejudice by giving any judicial direction to the jury.  Accordingly, it would seem to me that if I were to accept the argument of Mr Barry that the evidence were relevant to the case, which I doubt, on balance any such limited relevance to the case would be clearly outweighed by its prejudicial effect.  Thus, in the exercise of my discretion, not only should I, but I believe I must, as a matter of law, exclude it.

1. I should say that the prejudicial effect, I think, would be exacerbated were I to admit the evidence by the fact that no matter how Mr Barry tried to limit the type of evidence he sought to call, it would be inevitable that the trial could get diverted into a collateral and peripheral issue relating to whether the accused man had sold drugs to the deceased man’s son or not.  The diversion of the jury and distraction of the jury from their central task could quite possibly work against the Crown as much as for it, but on any view it could not assist in the proper administration of justice.  Indeed, it is for that reason that the common law has always set its face against the agitation of that type of collateral issue, in particular in a criminal trial.

1. For those reasons, I rule that the evidence which the Crown seeks to adduce as to the prior drug trafficking by the accused to the deceased man’s son is not admissible as a matter of law.