DPP v Dunne & Anor

2 Before empanelling a jury, Mr Rochford of counsel for the accused man Dunne raised an objection to the admission of evidence concerning an aspect of the post event conduct of his client. The objection is made pursuant to s 137 of the Evidence Act which requires me to refuse to admit evidence to be adduced by the prosecutor if the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. In Mr Rochford's submission that applies to the particular evidence. On 15 March 2009 I announced that I would accede to the application that the evidence be excluded pursuant to s 137 of the Evidence Act and that I would subsequently publish my reasons for that ruling. I now do so.

3 In order to understand the objection a brief outline of the events is necessary.

4 The deceased Jessie Repia died on 29 October 2008 at the Alfred Hospital. His death was the consequence of being stabbed by the accused man Dunne six days earlier on 23 October 2008. The chain of events which led to Repia's death began at a nightclub in Frankston known as the Robin Hood Tavern. Both the accused Dunne and the deceased were at the nightclub but were not known to each other. At the Tavern there was apparently some incidental contact between Bahnert and the deceased. In his record of interview, the accused man Dunne said that both he and Bahnert were "bumped" by Repia.

5 Later in the evening, the accused man, Bahnert, went home and Dunne and three females walked to a BP service station on the Nepean Highway. Repia and others also left the hotel and went to some private premises to drink before deciding that they would try to obtain some cannabis. After some time without success in obtaining the cannabis, their search took them to the BP service station at which Bree Saunders, one of Repia's friends approached Dunne about obtaining some cannabis. Dunne and the deceased then came into contact and there was some form of verbal altercation between them.

6 As I understand it, the accused and the deceased both became passengers in the rear of the vehicle driven by the witness Bree Saunders. During a short drive to Bahnert's place where Dunne intended to obtain cannabis, there was an angry exchange between Dunne and the deceased.

7 On arrival at the flat of Bahnert, Dunne was given money to go and obtain the cannabis. He went to Bahnert's flat and woke him up. Three grams of cannabis was handed over. Dunne was then informed by phone by one of the female companions that Repia was proposing to assault him and so, as he left Bahnert's flat, he took a hunting knife from a table in the flat and put it down the front of his pants. After handing the cannabis to one of the other occupants of the car, there was then a confrontation between Dunne and Repia. Repia got out of the car and they grabbed hold of each other. The knife was then produced and Repia was stabbed in the chest. There was only one wound and no defensive injuries according to the post mortem report. The deceased had a blood alcohol content of 0.13% and displayed evidence of having consumed the drug ecstasy.

8 The issues in the case seem to revolve around whether the prosecution can establish murderous intent. It seems clear to me that self defence will be raised on the evidence given the account in the record of interview of the accused Dunne.

9 The portion of the prosecution opening which is the subject of the debate at this stage reads:

"Paul Bahnert also told the police that later that morning he received a text message from Billie [sic] requesting him to ring Bob and ask Bob to destroy the CCTV footage from the Robin Hood Tavern for the previous night. Bob was a friend of both Paul and Billie and was the son of the owner of the Robin Hood Tavern. He did ring Bob that morning but cannot clearly remember what he said to him."

10 Other evidence about this is as follows. Ashlea Crisp is the girlfriend of the son of the owner of the Robin Hood Tavern and she described phone calls on 23 October 2008 where the accused man Dunne was trying to find Robert Harbud. Harbud described receiving a call from Bahnert about video footage at the Tavern. In his record of interview, Bahnert told police he made a quick phone call to Harbud asking him to get rid of the DVDs. In his record of interview, the accused man Dunne, agreed that he made such a call because he did not want to be seen at the Robin Hood Tavern. He said he was scared and not thinking straight.

11 In his record of interview, the accused, Dunne, was asked about this and gave the following account. He agreed that he sent a text message to Paul Bahnert requesting that a person called Bob who was connected with the Robin Hood Tavern "[get] rid of the videos, please it's important." When asked what that referred to he said he "...didn't want to be seen at the pub". He went on to say he was scared and not thinking straight. He said he knew the videos were not removed.

12 The issues in this case are not going to concern whether it was the accused man, Dunne, who stabbed the deceased. The issues are to be concerned with whether he did so with murderous intent and/or if he did, whether he was acting in self defence.

13 Notwithstanding the objection by Mr Rochford, the prosecutor, Mr Papas SC, submitted that this evidence could be relevant to rebut prospective defences. The fact that the CCTV contains nothing incriminating is less important, Mr Papas argued, than what was in the mind of the accused if he thought the contrary was the case. That, he argued, would be more significant than what was actually on the tape. Potentially, there were two reasons why the accused might have made the request. First, to cover up his presence at the hotel. Second, and alternatively, to remove evidence demonstrating that there was no conduct by the deceased at the hotel which could justify any later fear in the mind of the accused.

14 However, the real issue raised by Mr Rochford is this. This evidence does not disclose post offence conduct by the accused which was engaged in to prevent the disclosure of something he knew was capable of implicating him in the offence. The stabbing which caused the death of the deceased did not occur at the Robin Hood Tavern, as the accused well knew, and therefore whatever was on the CCTV tape could not have implicated him in participating in the incident. At any event, there were several witnesses to what occurred and he would have been hard pressed to assert that he had not been at the Robin Hood Tavern that evening for whatever benefit that might have been to the defence. It might be argued that the fact of him being at the hotel was a link to the deceased and an early step in the process connecting him with the crime which he wished to avoid. Such an intention does not appear from the record of interview and, as I have said, there is a significant amount of other evidence from witnesses which demonstrates that the accused was at the hotel and was later at the scene where the stabbing occurred.

15 There is also other post incident conduct which is not the subject of objection which has a much more probative quality or capability - indeed, the case against the accused man Bahnert is built on that conduct in which he participates.

16 "Probative value" as referred to in s 137 of the Evidence Act is defined in the following terms:

"probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

17 This evidence will only have any probative value if it is evidence than can be relied on in one of the two ways that post offence conduct can be used - to attack the credit of the accused or to be used as an implied admission of guilt.

18 In R v Farquharson [2009] VSCA 307R at paragraph [174] the Court observed:

"If an accused engages in conduct calculated to prevent the disclosure of something capable of implicating him or her in the commission of an offence, it is conceivable that the conduct may properly be interpreted as evincing consciousness of guilt. For example, if an accused attempts to hide a weapon known to have been used in a homicide, or to hide a motor car involved in a hit and run accident, or to destroy clothes seen to have been worn by a burglar, a jury may infer that the accused is motivated by consciousness of guilt of the offence charged and fear that disclosure of the item will reveal his or her involvement in the offence. Similarly, where an offender has a conversation with a friend, of which the contents are capable of incriminating the offender, and thereafter engages in conduct calculated to prevent disclosure of the incriminating sections of the conversation, it is open to a jury to infer that the offender's conduct is motivated by consciousness of guilt of the offence and fear that disclosure of the contents of the conversation will reveal his or her involvement in the offence."

19 The Court went on to deal with the how the attempt to conceal something incriminating and, speaking about such circumstances, whether the accused's efforts to prevent disclosure of it were motivated by fear that disclosure would implicate him or her in the commission of the offence charged. However in this case, as I follow it, apart from being scared, no specific plan of concealment, which included removing the CCTV tapes from the hotel, is spelt out by the accused in his record of interview or to other witnesses who are part of the prosecution case. I am therefore of the opinion that the probative value of this evidence is slight. It is difficult, at this stage, to see how it could be put that the only reasonable explanation to be inferred from this conduct is that the accused knew that he had committed an unlawful act and sought by means of this conduct to distance himself from it.

20 So far as the danger of unfair prejudice is concerned, I am concerned with the risk that the evidence might be misused by the jury. In analysing the manner in which s 137 is to be applied, one must have regard to the actual provision. The question is whether the probative value is outweighed by the prejudicial effect. The analysis is thus an equation. If the probative value is low, as in my opinion it is in this case, it will be more easily outweighed by the prejudicial effect. Here, there is a risk that evidence suggesting the accused wanted to have video tapes removed and destroyed immediately raises a risk that such an action could be misused by the jury as demonstrating some form of guilty consciousness without there being a proper foundation for such a conclusion.

21 I am of the view that the prejudicial effect of this evidence does outweigh any slight probative value that it has and the evidence should therefore not be admitted.

I certify that this and the 75 preceding pages are a true copy of the reasons for Ruling of Lasry J of the Supreme Court of Victoria delivered on 16 March 2010.