Re Murdoch (Ruling No 2) - [2019] VSC 882

IN THE SUPREME COURT OF VICTORIA

Not Restricted

Revised

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0318
S CR 2019 005

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
SCOTT ALAN MURDOCH	Accused

---

JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2019, 16 July 2019 and 29 – 30 July 2019
DATE OF JUDGMENT:	31 July 2019
CASE MAY BE CITED AS:	Re Murdoch (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 882

---

CRIMINAL LAW – Joinder of charges on basis of coincidence evidence – Whether coincidence evidence has ‘significant probative value’ – Whether probative value substantially outweighs prejudicial effect – IMM v the Queen (2016) 257 CLR 300 applied – Evidence Act 2008 ss 98 and 101.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Papas QC	Office of Public Prosecutions
For the Accused	Mr S Bayles	Victoria Legal Aid

HER HONOUR:
Introduction and procedural background

The Crown have filed a further amended summary of prosecution opening (‘SPO’) dated 18 March 2019 relating to a joint indictment that charges the accused in respect of two separate criminal events. ‘Event 1’ (‘the Prohaska incident’) involves a home intrusion and infliction of life threatening injuries on Ilona Prohaska on 21 May 2013 (‘the Prohaska charges’) and ‘Event 2’ (‘the Blackwood incident’) involves a home intrusion and fatal attack on Kylie Blackwood on 1 August 2013 (‘the Blackwood charges’).

The accused was first charged with the Blackwood charges on 8 April 2016 and remanded in custody after being charged. He has remained in custody since then. He was committed for trial on the Blackwood charges on 7 December 2017 and appeared in this Court for a post committal direction hearing on 11 December 2017.

Subsequently it emerged that the accused was to be interviewed in respect of Event 1, the Prohaska incident, and a record of interview was conducted by police at the prison where the accused was remanded, on 13 June 2018. The Prohaska charges were laid at the conclusion of the interview and the Crown indicated it would seek joinder of the Prohaska charges with the Blackwood charges. Therefore, the trial of the Blackwood charges was delayed when the prospect of joinder was foreshadowed. A committal on the Prohaska charges proceeded in January 2019 and the accused was committed to this Court for trial on those charges on 10 January 2019.

The current joint indictment[1] was filed in this Court on 11 February 2019.
[1]Indictment C1912388 signed on 16 January 2019.

Joinder of charges relating to each victim is sought by the Crown on the basis of the Crown’s reliance on coincidence evidence in respect of each case. The joint indictment was filed[2] over a previous indictment[3] which only contained the Blackwood charges.
[2]Joint indictment signed on 16 January 2019.
[3]Indictment G10956868.

The charges on the joint indictment are as follows:

(a) Charge 1 – Aggravated burglary[4] on Ilona Prohaska’s residential premises at [redacted] Georgette Crescent, Endeavour Hills;[5]
[4]Person present and armed with a knife.

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 Re Murdoch (Ruling No 2)

Details

AGLC: Re Murdoch (Ruling No 2) [2019] VSC 882
Case: [2019] VSC 882
Decision Date: 31 July 2019

CaseChat Overview and Summary

In the case of Re Murdoch, the appellant sought a ruling on the joinder of charges which were based on coincidence evidence. The Court of Appeal of the Supreme Court of Victoria was tasked with determining whether the coincidence evidence had sufficient probative value to justify its admission, and if the probative value substantially outweighed any prejudicial effect it may have. The case hinged on the application of principles established in IMM v the Queen, specifically concerning the admissibility of coincidence evidence under the Evidence Act 2008.

The central legal issue was whether the coincidence evidence possessed significant probative value, and if so, whether this value substantially outweighed the prejudicial effect that such evidence might have on the fairness of the trial. The court was required to examine whether the coincidence evidence could assist in determining a fact in issue, and whether the probative value of this evidence was so compelling that it justified any potential prejudice to the accused. This assessment was conducted in light of the statutory provisions of the Evidence Act 2008, sections 98 and 101, which govern the admissibility of evidence based on coincidence.

The court found that the coincidence evidence did indeed have significant probative value. It concluded that the evidence was relevant and could assist in determining a fact in issue. Moreover, the court held that the probative value of this evidence substantially outweighed any prejudicial effect it might have on the fairness of the trial. The decision closely followed the framework set out in IMM v the Queen, where the High Court of Australia outlined the criteria for assessing the admissibility of coincidence evidence. The court determined that the coincidence evidence met the required threshold, and thus, it was admissible under the Evidence Act 2008.

No further orders were made by the court beyond the ruling on the admissibility of the coincidence evidence. The court's decision confirmed that the charges could be properly joined based on the coincidence evidence, provided that the trial judge ensured that appropriate directions were given to the jury regarding the limited purpose for which the evidence could be considered.

Orders