R v Debs [2008] VSCA 240

R v Debs [2008] VSCA 240 - VSCA 2008 case summary — Zoe

[61]

What I want to do is give you directions as to how you must not use that evidence. Now, sometimes this impermissible use is not really conscious, it's almost a subconscious effect so you have to guard against it intruding into your thinking in the following way. If you accept that the gun and the ammunition that was found at the accused's mother's house was linked to the accused in the manner contended for by the Crown, you must not embark on the following reasoning or indeed let yourself subconsciously fall into it by saying, 'Well, the accused man had a gun buried at his mother's house, therefore he's a bad sort of person, he's up to no good and therefore he's the sort of person who is likely to have committed this crime'. When you hear that type of reasoning really articulated that way, you can see how unfair, how impermissible and how illogical it is. That type of reasoning is entirely not permitted by our law. You must not embark on it. I am sure none of you would consciously do so, but it is important to guard against that type of thinking intruding into your reasoning process.

In the same way you will hear evidence, as I understand Mr Tinney to say, that the weapon found at the accused's mother's house had been stolen in about the early 1990s, I think he said 1992. There's no evidence, as I understand it, that the accused man had anything to do with the theft but, in any event, it would be wrong for you to reason, 'Well, the accused man had at his mother's house a stolen gun, therefore he was a bad sort of a person and he is the sort of person likely to have committed this crime'. Again, I am sure none of you would consciously reason that way. Quite clearly, it would be unfair, it would be impermissible and illogical. But, again, you must guard against that type of thought creeping in your reasoning. As I said to you...you judge the facts as an intellectual exercise through the process of good sense, common sense and logic; you do not allow unfair prejudice and that type of irrational process to intrude in.

[63]

You will recall, as I said, that there was a finding of a .357 Magnum calibre Smith & Wesson revolver under the accused's mother's house in Epping, New South Wales, in July 2000 and the evidence of a finding of a quantity of ammunition in the backyard in July 2004, which included a number of .357 calibre copper-coated solid-lead semi-wadcutter bullets.

The Crown seeks to rely on the finding of that weapon in 2000 and ammunition in 2004 as follows. Firstly, the Crown seeks to link the weapon found at the accused's mother's house and the ammunition later found there; it seeks to link the weapon and the ammunition to the accused by relying on the evidence of the recorded conversation between the accused man and his daughter Joanne in February 2000. ...

It is a matter of fact for you as the jury to determine whether you are satisfied that the evidence links the accused man to the weapon and to the ammunition found at the accused's mother's house in 2004. That, of course, is a question of fact for you. It is what you make of it. If you accept that the accused was referring to the weapon that was found at his mother's house when he spoke with his daughter Joanne in February 2000, then what the Crown says is this. It submits that you should infer from that evidence that on the date on which Kristy Harty was killed, that is, back in June 1997, the accused may have had available to him a weapon of the same type as the weapon which was used to kill Ms Harty. You have heard Mr Tinney address you on evidence. I will summarise the evidence to you in relation to it. You have also heard Mr Dane make submission in response. So, again, it is a matter for you what you make of the evidence. But I need to give you directions, repeat to you the directions I earlier gave to ensure you do not make any impermissible use of that evidence.

As I said to you, and I think it was really after Mr Tinney's opening of the evidence, if I am right three weeks ago, if you accept that the gun and/or ammunition that was found at the accused's mother's house was linked to the accused in the manner contended for by the Crown, you must not - I repeat not - fall into the process of reasoning along the following lines: well, the accused man had a gun buried under his mother's house so he is a bad sort, he is up to no good, so he is the sort of person likely to have committed this crime in this case. Such a method of reasoning quite clearly would be wrong, unfair and not permitted as a matter of law. You must not reason in that manner.

I have probably insulted your intelligence by pointing out that because it is quite clear that that type of reasoning would be unfair and not permissible. But, as I said to you yesterday in relation to the issues of bias and the like, sometimes these thoughts can intrude. Recognise them and if you find yourself thinking along those lines, you just say, 'That is irrelevant, that is out. That is not why the Crown was permitted to put the evidence in. It is not why they called the evidence and I cannot make that type of use of it in deciding this case.' As a judge, it would be wrong for you to use the evidence in that way.

Similarly, we have heard that the gun and maybe the ammunition was stolen from Mr Klimek back in 1992. There is, in fact, no evidence at all that the accused man had anything to do with that theft. But, in any event, you must not fall into any type of reasoning: well, he had somehow or other a connection with a gun that was stolen and with ammunition that may have been stolen, that shows he is a bad sort of person. Again, if you find that sort of thought intruding, that type of reaction, you say, 'That is just out, that is not how I would expect a judge to approach the case. I am a judge, therefore, I do not approach the case that way.'

Feeding from that, you have been given for your assistance a transcript of that conversation between the accused man and his daughter. It is, in fact, Exhibit AM and I marked it for identification. As I said to you at the time, and I repeat now, that document is not evidence in the case at all and that is why it is marked for identification, just to make it part of the court record. It has been given to you to assist you follow the conversation so you can better discern what is said. But ultimately you are the judges of what was said and how it was said.[9]

[69]

The argument for the Crown would then be the axiomatic one that, while no one piece of evidence, taken alone, might satisfy the jury beyond reasonable doubt of the applicant's guilt, the evidence in its totality, including that of the seized gun, could do so. This was not a case in which the Crown sought to rely on evidence of similar facts, raising the question whether evidence of propensity might properly be directly or incidentally admitted. That elaborate question has received the detailed attention of the High Court in recent years in cases such as Hoch, Harriman and, most recently, in Pfennig. To the extent that the evidence of the discovery and seizure of the gun revealed any criminal propensity (if it did so at all) it was in my opinion not on that account rendered inadmissible by reason of the exclusionary rule that was under discussion in the three cases last mentioned. The rule is stated in Cross on Evidence thus:

"The prosecution may not adduce evidence of the character or of the misconduct of the accused on other occasions (including the possession of discreditable material) if that evidence shows that the accused had a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crime charged, unless the evidence is highly probative of a fact in issue."

The rule had no application in this case because the evidence of the discovery and seizure at the applicant's house of the gun did not in truth reveal the applicant's commission of, or disposition to commit, any offence other than the offences with which he stood charged or, at all events, any offence of the same general character as those offences. In these circumstances there was no room for the application of the exclusionary rule: Harriman per Brennan J; and Cross on Evidence. The evidence relating to the gun was therefore admissible subject to the exercise of the general discretion to exclude evidence whose prejudicial effect outweighed its probative value. There was no application made to the judge on behalf of the applicant for the exercise of any such discretion and, even if there had been, I cannot see why it should have been exercised against the Crown.[14]

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)

Parties

Cases Cited (9)