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[2008] VSC 244
Supreme Court of Victoria
2008-05-21
CUMMINS J
Original judgment source is linked above.
Criminal law and procedure - murder - evidence - admissibility.
1 Mr Sarah, learned counsel for the accused, has applied for the jury to be discharged without verdict. The basis for the application is that the present witness, Mr Houlihan, barrister, has given evidence that the morning after the murder, that is to say on the 11 July 2006, the accused made two telephone calls to Mr Houlihan, who was acting for the former wife of the accused, in Mr Houlihan's chambers. In the first of those conversations, as part of that conversation, the accused said to Mr Houlihan, "The war's over". It is most unfortunate that the witness has given those three words before the jury. I agree with Mr Sarah that they are graphic words, and as I have already said in my extempore Ruling No 4 this morning, they are the sorts of words which the jury could well run away with in a prejudicial way, if not properly controlled.
2 Mr Horgan has been most circumspect in ensuring, so far as counsel can ensure it, that the witness contained himself to proper and admissible evidence, and did not stray into any prejudicial or inflammatory fields, and I commend Mr Horgan for that very careful elicitation of evidence. Despite that care, this sentence unfortunately came out.
3 I did originally exclude it, and I do not resile for a moment from the reasons of the exclusion, namely that I considered then that the words could fan the flames of speculation with the jury, and could be improperly used by the jury in a speculative sense. That of course was before the evidence actually was elicited and in the context of its enunciation by the witness.
4 Having heard the witness, I do not now consider it is a real possibility at all that the jury would treat the phrase "The war's over" as being any more than the litigation will no longer be pursued by Mr Glascott. I say that because the phrase came out in the very specific context of a war of litigation between the accused and his former wife, Tina, over a considerable period; and as Mr Sarah rightly has conceded, if the expression was in that first conversation, "I'm no longer pursuing the court case" there could be no objection. That is to say, the enunciation by the accused the day after the murder that he was no longer pursuing the court case, of itself could not properly be objected to. The objection is not the substance of the matter. The objection is the danger in the phraseology.
5 I consider that in the context of the evidence given by the witness, the jury would only conclude that "The war's over" referred to the litigation no longer being pursued.
6 Accordingly I refuse the application to discharge the jury without verdict.
DPP
Glascott