DPP v Vallance [2007] VSC 96

2 There appears to be little doubt Pedler was stabbed, suffering wounds to the head and abdomen, but the threshold issue in the case is whether the accused was responsible for the stabbing.

3 Pedler is now dead and the identification of the accused as the stabber turns on the evidence of Pedler's former girlfriend, one O'Neill. The accuracy of her identification is in issue. The Crown wishes to adduce evidence of a conversation later on the night in question, at other premises in Curzon Street, North Melbourne between the accused and one Monaghan. The Crown seeks in particular to call evidence from Monaghan that (a) the accused arrived at Monaghan's place of residence and said: "Thank God you are here, I think I have done something wrong"; (b) the accused asked to and did, in fact, stay the night with Monaghan at Monaghan's place of residence; and (c) the accused had a swollen nose and said: "I have a broken nose." (O'Neill giving evidence of an apparent fight between Pedler and the accused earlier that day).

4 Mr Desmond has made application on behalf of the accused seeking to exclude evidence of the first statement, "Thank God you are home, I think I've done something wrong." The application is made firstly on the basis that this statement is irrelevant and alternatively on the basis that its receipt in evidence would be unfairly prejudicial to the accused. In my view the statement is relevant. It forms part of a series of spontaneous statements by the accused made shortly after the stabbing which taken together or individually might be regarded as tending to confirm the identity of the accused as the man who stabbed Pedler. The probative effect of such evidence if it is admitted is ultimately to be weighed in the light of the evidence as a whole.[1]

5 Insofar as unfairness is concerned, it is submitted that the statement is so equivocal that it is of little or no probative value while on the other hand it is potentially highly prejudicial to the accused because the jury might misconstrue its weight. In my view the equivocal character of the statement is plain and its limitations are capable of being squarely addressed first by counsel and secondly by direction of the trial judge. Such limitations do not prevent its proper use as evidence of a circumstance tending to confirm the correctness of the identification of the accused as the man who stabbed Pedler.

6 Further, in my view, any potential prejudice arising from this piece of circumstantial evidence does not outweigh its probative value. Its probative value will ultimately be a matter for the jury to consider and should be left to them. In so finding I am, however, mindful of the fact that the prosecution does not put forward the statement as an admission of the elements of the crime charged, and Mr Dane has accepted in argument that if the question of identification was not in issue, then the probative significance of the statement would be minimal if indeed it could be regarded as materially probative of the Crown case at all. It follows from this that I further accept Mr Desmond's submission that the purposes for which the statements are to be put in evidence should be made clear to the jury and I so rule.