The Queen v Barker (Rulings 1, 2 and 3)
[2017] VSC 57
•14 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0171
| THE QUEEN |
| v |
| DYLAN BARKER |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6–10, 13–17, 20 February 2017 |
DATE OF RULINGS: | 14 February 2017 |
CASE MAY BE CITED AS: | The Queen v Barker (Rulings 1, 2 & 3) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 57 |
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CRIMINAL LAW – Incriminating conduct – Extension of time for filing of Notices of Incriminating Conduct (Rulings 1 & 2) – Admission of evidence of conduct as evidence of incriminating conduct (Ruling 3) – Jury Directions Act 2015 ss 8, 19, 20, 21 – Di Giorgio v The Queen [2016] VSCA 335.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Justin Lewis | Office of Public Prosecutions |
| For the Accused | Mr Justin Hannebery | Paul Vale & Associates |
HIS HONOUR:
Introduction
1 In the course of this trial, I made the following rulings. First, pursuant to s 8 of the Jury Directions Act 2015 (the JD Act), I extended the time for the filing of the prosecution’s first Notice of Incriminating Conduct (the First Notice) (Ruling 1). Second, pursuant to the same section, I extended the time for the filing of the prosecution’s second Notice of Incriminating Conduct (the Second Notice), which referred to conduct which had been inadvertently omitted from the First Notice (Ruling 2).[1] Third, I ruled that some of the conduct referred to in the First Notice and the conduct referred to in the Second Notice was admissible as incriminating conduct (Ruling 3). I indicated that, in due course, I would give written reasons for these rulings, and I do so now.
[1]The accused burning the clothes that he was wearing at the time of the shooting.
Background
2 On 9 February 2016, the accused, Dylan Barker, shot Paul Cochrane, killing him. At the time he fired the fatal shot, Barker was sitting in the driver’s seat of his (Barker’s) car. The preponderance of evidence indicates Cochrane was standing in front of Barker’s car when he was shot. Barker drove off immediately after the shooting.
3 A few minutes before the shooting, Cochrane had attacked a friend of Barker’s named Jeremy Marendaz, lunging at him with a knife, as Marendaz sat in the driver’s seat of Marendaz’s car. Marendaz moved quickly into the passenger seat, managing to avoid being stabbed. A short time later, he drove away.
4 When Barker arrived on the scene in his car, he was told about Cochrane’s knife attack on Marendaz.
5 A key issue in the trial was whether Barker shot Cochrane in lawful self-defence or in retaliation for Cochrane attacking Marendaz.
6 In his police interview, Barker initially set up an alibi but eventually he admitted he was the shooter. He indicated that he did not mean to hit Mr Cochrane, just scare him. He also indicated that he mistakenly believed the cartridge contained glass fragments, not lead pellets. At several stages during the police interview, Barker expressed regret that he had not been there to protect his friend Marendaz, whom he mistakenly believed had been stabbed. Towards the end of the lengthy interview, Barker claimed he shot Cochrane in self-defence.
Relevant statutory provisions
7 The relevant statutory provisions are sections 8, 19, 20 and 21 of the JD Act (underlining added):
8. Power to extend or abridge time
(1) The court, by order, may extend or abridge any time fixed—
(a) by or under this Act; or
(b)…………………….; —
if the court considers that it is in the interests of justice to do so.
(2) …………………….;
(3) The court may extend time under subsection (1) before or after the time expires.
(4) …………………….;
(5) …………………….;
19.Prosecution notice of evidence to be relied on as evidence of incriminating conduct
(1) The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence—
(a)a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and
(b)a copy of the evidence on which the prosecution intends to rely.
(2) …………………….;
(3) The trial judge may dispense with the requirements of subsection (1)(a) or (b) if—
(a)during a trial the prosecution first becomes aware of evidence of conduct that it proposes to rely on as evidence of incriminating conduct; and
(b)the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct; and
(c)it is in the interests of justice to dispense with those requirements.
(4) If under subsection (3) the trial judge dispenses with the requirement of subsection (1)(b), the prosecution must identify orally to the court and the accused the evidence of conduct that it proposes to rely on as evidence of incriminating conduct.
20. Evidence of incriminating conduct
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
21. Mandatory direction on use of evidence of incriminating conduct
(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b)…………………….;
(2) …………………….;
Procedural History
8 On 2 February 2017, the prosecution filed and served the First Notice. Paragraph 2 of the First Notice stated:
The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is:
i.In his record of interview the accused initially denied any knowledge of the shooting and lied about his whereabouts at the relevant point in time. This indicates that the accused did not believe that he had legitimately acted in self-defence;
ii.Throughout the entirety of his record of interview the accused failed to mention to police that he acted in self-defence or even that he was in fear for his wellbeing prior to shooting the deceased in circumstances where one would expect that he would do so. This indicates that the accused did not believe that he had legitimately acted in self-defence;
iii.The accused failed to mention that he believed that the shotgun shell was filled with glass until question 951 of his record of interview in circumstances where one would expect that he would do at a far earlier stage if he had any belief that a glass-filled shell would have a substantially different effect to that of a pellet-filled shell. This indicates that the accused did not believe that he had legitimately acted in self-defence;
iv.Shortly after the shooting the accused told his sister that he had shot someone and that believed they were dead in circumstances where he later told police that he believed that the shotgun was loaded with glass rather than pellets. If he truly believed that the shell contained glass and that glass would not cause death or really serious injury then he had no reason to suspect that he had killed the deceased at that point in time;
v.Immediately after the shooting the accused fled the scene. This indicates that the accused did not believe that he had legitimately acted in self-defence;
vi.Shortly after the shooting the accused disposed of the gun in pieces and in a manner such that it was never recovered notwithstanding his instructions to police as to its location. This indicates that the accused did not believe that he had legitimately acted in self-defence; and
vii.After the shooting the accused drove the vehicle that he had been driving at the time of the shooting to the home of Melanie Barker (his sister) and left the vehicle around the corner from the house, catching a taxi back to his own house. This indicates that the accused did not believe that he had legitimately acted in self-defence.
9 On 6 February 2017, the trial of this matter was listed to commence. On that day, in the course of pre-trial submissions, the prosecutor sought an extension of time under s 8 of the JD Act in relation to the filing and serving of the First Notice.
10 Whilst Barker conceded that there was no unfair prejudice from the late filing and service of the First Notice,[2] and that the conduct described in paragraphs 2 (i), (v) and (vi) were capable of being admitted as incriminating conduct,[3] he objected to the admissibility of the conduct described in paragraphs 2(ii), (iii), (iv) and (vii).
[2]Transcript of Proceedings, 6 February 2017 at [4].
[3]Ibid [5].
11 After some discussion, the prosecution did not press for the admission of the conduct described in paragraphs 2 (ii),[4] (iii),[5] (iv)[6] but maintained that the conduct described in (vii) – Barker disposing of the car at his sister’s - should be admitted, along with the conduct described in paragraphs 2(i), (v) & (vi) to which no objection was taken.
[4]Ibid [22].
[5]Ibid [17].
[6]Ibid [18].
12 I granted the application for the extension of time within which to file and serve the First Notice. I did so for essentially two reasons – there was no unfair prejudice to the accused and, prima facie, some of the conduct described in the First Notice was admissible as incriminating conduct.
13 I indicated that my provisional view was that the conduct described in paragraphs 2(i),(v),(vi) & (vii)– that is ( in chronological order) the accused fleeing the crime scene, the disposal of the gun, the disposal of the car and the lies initially told to police in his interview to the effect that he was not present and was not involved in the shooting - was admissible as incriminating conduct. In my view, it was open to a jury to conclude that such conduct had occurred and that the only reasonable explanation for such conduct, particularly when considered in combination, was that the accused did not believe it was necessary to shoot Cochrane in self- defence.[7]
[7]Jury Directions Act 2015 s 21.
14 On 7 February 2017, a jury was empanelled and the trial commenced.
15 On 10 February 2017,[8] the prosecution filed and served the Second Notice. Relevantly it stated:
i.In his record of interview the accused informs police that he does not still have the clothing that he was wearing during the incident because they were subsequently burned and thrown from his car. This indicates that the accused did not believe that he had legitimately acted in self-defence;
[8]Notice of Evidence of Incriminating Conduct 2.
16 Barker conceded that there was no unfair prejudice from the late service of the Second Notice[9] – the accused had admitted in his police interview to having burnt the clothes he was wearing at the time of the shooting – but doubted that the court had power under s 8 to extend the period of time for the filing and serving of the Second Notice in circumstances where the trial had already commenced before a jury. Barker submitted effectively that, even if the court had the power to extend time under s 8 after empanelment, that it was not in the interests of justice to do so. He submitted that the interests of justice required that the standard notice requirements applicable to the prosecution in relation to alleged incriminating conduct be strictly enforced so that the admissibility issues are sorted out before the trial starts in front of a jury.[10]
[9]Transcript of Proceedings (10 February 2017) at [134]–[135].
[10]Ibid.
Analysis
17 Section 8 itself refers to the court’s power to extend time periods even after a time period expires. The section is expressed in the broadest possible terms. The test is whether it is in the interests of justice to extend time. The power to extend the time period for the filing of a Notice of Incriminating Conduct after empanelment appears to have been assumed by the Court of Appeal in Di Giorgio v The Queen.[11] No authority was cited which suggested that the power in s 8 can only be utilized prior to empanelment. S 19 (3) does not cover the field in relation to giving notice of incriminating conduct after empanelment; it is concerned only with the situation where “during a trial the prosecution first becomes aware of evidence of conduct that it proposes to rely on as evidence of incriminating conduct” (underlining added). That was not the situation here.
[11]Di Giorgio v The Queen [2016] VSCA 335, 22
18 I was satisfied that the court had the power to extend the time period for the filing and service of the Second Notice under s 8 of the JD Act. I also considered it was in the interests of justice to do so. Barker rightly conceded that there was no unfair prejudice from the late filing and service of either notice.
19 I considered that it was open to the jury to find that the only reasonable explanation for the disposal of the clothes was that Barker did not believe he had acted in self-defence.
20 The prosecution has been remiss in a number of respects: its First Notice was late and incomplete and it did not get around to filing its Second Notice until after empanelment. Had there been any unfair prejudice to the defence as a result of this tardiness, I may well have rejected the prosecution’s applications. But this is a murder trial, not a game. No unfair prejudice arises. Form should not take precedence over substance. In my view, it was in the interests of justice to extend the time period for the Second Notice, as well as the First Notice, and to rule, as I did at the close of the prosecution case pursuant to s 20 of the JD Act,[12] that the conduct referred to in paragraphs 2 (i), (v), (vi) & (vii) of the First Notice, and the conduct referred to in the Second Notice, may be relied on by the prosecution as incriminating conduct for the purpose identified in both Notices – namely, to negate self-defence.
[12]Transcript of Proceedings (14 February 2017) 349–340.
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