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R v Bennetts (No 3)

 

[2017] QSC 195

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Bennetts [2017] QSC 195; [2017] QSCPR 5

PARTIES:

THE QUEEN

v

Brenden Jacob BENNETTS

(applicant)

FILE NO/S:

No 1432 of 2016

DIVISION:

Trial Division

PROCEEDING:

Rulings

ORIGINATING COURT:

                                                                                           Supreme Court at Brisbane

DELIVERED ON:

11 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2017

JUDGE:

Ann Lyons J

ORDERS:

  1. The application to exclude the evidence of the YouTube search on 13 August 2015 is refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – NATURE OF DISCRETION – OTHER PARTICULAR MATTERS – where the applicant is charged with one count of murder and one count of interfering with a corpse – where the applicant’s plea to manslaughter was not accepted by the Crown in satisfaction of the indictment – where one day before the applicant caused the death of the deceased the applicant entered the search “best way to dispose of a body” into YouTube – where the results of the search, if any, are not known – where applications to exclude the evidence of the search on the basis of relevance and prejudice were refused – where the applicant seeks the exclusion of the evidence on the basis of unfairness pursuant to the common law residual discretion to exclude admissible evidence – whether the common law residual discretion to exclude is enlivened – whether the evidence should be excluded

Harriman v The Queen (1989) 167 CLR 590

R v Falzon [1990] 2 Qd R 436

Police v Dunstall [2015] HCA 26

R v Lobban (2000) 77 SASR 24

R v Grimes [2013] 1 Qd R 351

Dietrich v The Queen (1992) 177 CLR 292

COUNSEL:

M J Copley QC for the applicant

V A Loury QC for the Crown

SOLICITORS:

Mulcahy Ryan for the applicant

Director of Public Prosecutions (Qld) for the Crown

This application

  1. Counsel for the defendant has made a further application for the exclusion of the evidence of YouTube searches which reveal that on 13 August 2015 at 12.19 pm the defendant entered a search query for “best way to dispose of a body”. The results of the search, if any, are not known.
  2. On 7 September 2017 I refused the defendant’s application to exclude that evidence. I was satisfied that the evidence was relevant to a fact in issue in the trial because if accepted it could rationally affect the assessment by the jury of the probability of a fact in issue. I considered that the question of intent was still in issue in the trial despite the defendant’s plea of guilty to manslaughter and interfering with a corpse.  I was also satisfied that the evidence was not of slight probative value but rather was potentially of significant probative value given it could rationally affect the assessment of the jury of the issue of intent, because the search query was made the day before the death of the deceased and in circumstances where it took two weeks for her body to be discovered in an isolated area and where the cause of death has not been able to be determined. Accordingly I considered that the prejudicial effect of the evidence did not outweigh its probative value in those circumstances.
  3. Counsel now argues that there is a further discretion to be considered, namely the residual discretion of a trial judge to reject any evidence if the strict rules of admissibility would operate unfairly against the accused. Counsel argues that the authors of Cross on Evidence[1] refer to this residual discretion and indicate that one cannot exclude the possibility of a case where, despite the substantial probative force of the evidence, fairness dictates its exclusion. This discretion is seen as an extension of the discretion to reject a confession if it would be unfair to use it against the accused, and as sharing the same roots as the discretion to reject illegally obtained evidence. Essentially the evidence should be rejected on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair.
  4. Counsel argues that despite the 7 September 2015 ruling that the evidence was admissible and probative, the decision by Brennan J in Harriman v The Queen[2] is relied upon to exclude that evidence as follows:

“As the argument against admissibility in this case relied on the judicial discretion to reject evidence otherwise admissible when it is necessary to do so to secure a fair trial, it is necessary to say something about the scope of the discretion. Is there a residual judicial discretion to reject evidence revealing the commission of another offence or a predisposition to commit an offence on the ground that its prejudicial effect is disproportionate to its probative effect when the evidence is found to be admissible because its probative force clearly transcends its merely prejudicial effect? Obviously, the occasions for the exercise of such a discretion are hard to envisage, for evidence which satisfies the criterion of admissibility is unlikely to attract the exercise of the discretion. Nevertheless, one cannot exclude the possibility of a case where, despite the substantial probative force of the evidence, fairness dictates its exclusion. As against the prospect of such an exceptional case arising, the continued existence of the residual discretion should be admitted.”

  1. Counsel argues that whilst Brennan J indicated that it was hard to envisage evidence which satisfied the criteria, this is such a case for the exercise of the residual discretion.  In particular in this case, the circumstances are such that it cannot be ascertained whether, after entering the search query, the defendant actually looked at something sinister or something harmless or indeed whether he looked at anything at all.  Counsel argues that the proximity in time between the entry of the search expression and what later occurred at Upper Tenthill creates an incurable prejudice to the defendant that can only be avoided by exercising the residual discretion to exclude the evidence in order to secure a fair trial.
  2. Counsel for the defendant also argues that there is no adequate direction which could cure or guard against the unfairness which would result from the admission of the evidence. It is argued that the evidence of the search query works in unfairness because it starts from an assumption that can never be made good, the assumption being that he who enters such an expression has done so for a nefarious purpose.  Counsel points out that this is just an assumption because we do not know what was looked at and whether it was sinister or harmless.  Given that my ruling indicates that the evidence has been determined to be of significant probative value, the application now is to use the rarely used discretion to revisit the ruling and arrive at a different outcome for different reasons.
  3. In this regard both Counsel placed reliance on the decisions referred to in Cross[3] with Counsel for the defendant relying also on the decision of R v Falzon[4]. Counsel for the Crown conceded that in the 2015 High Court decision of Police v Dunstall[5] there was an acceptance of the existence of a residual common law discretion but ultimately, it was not necessary to determine the limits of the discretion in that particular case. The High Court also recognised that the Full Court of the Supreme Court of South Australia has identified a general unfairness discretion and in R v Lobban[6] held that this discretion “permits the court to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the accused in the sense that it would make the trial of the accused an unfair trial.”[7]
  4. Whilst it was not necessary in Dunstall for the High Court to make a definitive statement about the discretion, it is clear that in obiter comments the residual discretion was recognised. In particular, Nettle J stated that the fairness discretion is a residual discretion which applies where although none of the other recognised discretions is engaged, if the receipt of otherwise admissible evidence would be productive of such unfairness as to result in an acceptable risk of miscarriage of justice.  His Honour noted however that the discretion does not exist to give effect to idiosyncratic notions of fair play or whether the forensic contest was even. In Dunstall Nettle J considered the nature of this residual discretion as follows:

“The fairness discretion

[59] In this case, special leave to appeal was granted because the matter was said to raise a question of general importance of whether there is discretion to exclude evidence on the ground that its reception would be unfair. There should be no doubt that there is such discretion. It is the necessary concomitant of the obligation of a trial judge to ensure that an accused receives a fair trial according to law.The real question is as to its nature and extent and, in particular, what counts as unfair in the relevant sense.

[60] In R v Swaffield, Brennan CJ spoke of the fairness discretion as the discretion recognised in R v Lee to exclude a voluntary statement when its reliability is put in doubt by reason of the conduct of a preceding police investigation or where, but for a trick or other unfair conduct on the part of the police, the statement would not have been made or made in the form it was. In future, it would be preferable to refer to that discretion as “the Lee discretion” and to regard the fairness discretion as it has come to be conceived of in Australia over the last quarter century as a residual discretion to exclude evidence which, although not attracting the operation of the Christie, Bunning v Crossor Lee discretions (“the recognised discretions“), would be productive of an unacceptable risk of miscarriage of justice” (footnotes omitted).

  1. I accept therefore that in addition to the well-known discretions which can conveniently be referred to using Nettle J’s analysis as the Christie discretion, the Bunning v Cross discretion and the Lee discretion, there is a further discretion which is a residual fairness discretion.  I shall therefore proceed on the basis that there is such a ‘residual unfairness discretion’ and indeed such an approach was adopted in the Queensland decision of R v Grimes[8] where it was noted that the consequence of the discretionary exclusion of evidence is that relevant evidence is not presented to the jury which is the trier of fact and the body responsible for the assessment of evidence as follows:[9]

“A matter relevant to both bases is the way that criminal trials on indictment are commonly conducted in higher courts in Australia, with the jury being the trier of fact, and accordingly the body responsible for the assessment of evidence. A consequence of the discretionary exclusion of evidence is that relevant evidence(that is, evidence which makes more probable than not the existence of a fact, the existence of which is in issue, or which, taken alone or with other facts, makes more probable than not the existence of a fact in issue5) is not presented to the jury, notwithstanding the public interest in the conviction of offenders, and the general entitlement of the prosecution to adduce relevant evidence in support of a charge. (footnotes omitted).

  1. What then are the criteria for the exercise of the residual unfairness discretion? In his judgment Nettle J referred to the need to consider the individual case and noted Gaudron J’s view in Dietrich v The Queen[10] that what is fair very often depends on the circumstances of the particular case and that notions of fairness are inherently bound up with prevailing social values. Significantly Gaudron J noted in that case that “the inherent powers of a court to prevent injustice are not confined within closed categories”.[11]  Her Honour continued:[12]

“But in this as in other areas of the law involving the recognition of new applications of established principle, courts are bound to approach the task by a process of legal reasoning, by deduction and therefore ultimately by analogy with decided cases, recognising that the exercise may ultimately involve a value judgment involving matters of policy and degree in a context of changing societal values or “prevailing community standards”.(footnotes omitted)

  1. As I have said in my previous rulings it cannot be ignored that this is a murder case. It is not an argument about the fairness of relying on incomplete results of an alcohol test which was the case in Driscoll. In my view the evidence of the mere entry of the search query the day before the death irrespective of results is relevant to a fact in issue in this case, namely the question of the defendant’s intention at a time proximate to the deceased’s death. There can be no doubt the evidence is prejudicial but it is not intrinsically unfair just because of this. I accept that it was not disclosed until Day 2 of the trial, which was just a week ago, and the disclosure has therefore come at a late stage. I also accept that the late disclosure was the result of oversight and was not deliberate.  Whilst there is some unfairness in this regard it is not an overly strong argument for unfairness just because of the late disclosure. 
  2. It would seem to me that the essence of the submission by Counsel for the defendant is once again that the evidence is still inherently weak and there is a real danger that the jury would place too much weight on the fact of a search in circumstances where it is not known what, if anything, the defendant looked at. It is really an argument that the jury would leap to an unfair conclusion about that evidence because Counsel argues that the mere fact of making such a search is by its nature assumed to be sinister.
  3. In my view the question as to what significance that evidence actually has is a jury question. It is the jury’s role to take into account all relevant evidence and to reach a conclusion based on the evidence it accepts and the weight it attaches to such evidence. The jury will be directed about only drawing inferences from the facts they find proved by the evidence and the requirement that they may only draw reasonable inferences available on the evidence and the need for a logical and rational connection between the facts they find and their deductions of conclusions. Significantly they will be expressly warned that if there is an inference reasonably open which is adverse to the defendant and an inference in his favour, they may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in their minds. In this regard Counsel for the defendant can raise the four matters he has previously argued to point to what he argues is the inherent weakness of the evidence, namely that the entry of a search query “best way to dispose of a body” cannot rationally affect the assessment by a jury of the probability of the existence of the necessary intent at the time of the unlawful killing, in circumstances where:
    1. the entry of search query is made 24 hrs before the death;
    2. it cannot be shown what if anything the search query revealed;
    3. it cannot be shown what the defendant actually looked at of the things the search revealed; and
    4. the context in which accused asked question/made search is unknown.
  4. The arguments as to weight and the warnings which I have outlined above are matters which are capable of being comprehensible to a jury in the particular circumstances of this case. Those arguments by the defence in my view go to a question of weight which is clearly within the province of the jury.
  5. To the extent that the arguments by Counsel for the defendant go towards an argument that the evidence of the search query entry is incomplete and is therefore in some way unreliable, I note that the High Court in Doney v R[13] held that a judge in a criminal trial has no power to enter a verdict of not guilty on the basis that they considered a verdict of guilty would be unsafe and unsatisfactory. In In Rozenes v Beljajev[14] the Victorian Court of Appeal considered the discretionary exclusion of evidence of accomplices and indemnified witnesses on the basis of unreliability and held that “Doney is against the existence of a discretion to exclude evidence of significant probative value on the ground of its unreliability.”[15] The Court later said:

“As we have said, we do not think that one can dispute the proposition that, quite apart from the other circumstances which have been authoritatively accepted as giving rise to the discretion to exclude admissible evidence in a criminal trial, the discretion arises whenever it is shown that the reception of certain evidence will be unfair to the accused. But, as we have said, once it is accepted that this proposition does not commit to the judge a broad and undefined discretion to determine what is in all the circumstances fair, but requires the judge to consider whether reception of the evidence will make the trial unfair, it becomes difficult to think of a set of circumstances which might give rise to the discretion in cases where it is not suggested that there is a disproportion between the probative value of the evidence and its prejudicial effect. In particular, as Carter J. observed at 255 in McLean and Funk, it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury. His Honour went on to conclude at 260 that there was no discretion to exclude evidence which was based wholly or primarily upon the trial judge's conclusion that the evidence was unreliable: the exercise of such a discretion interfered with one of the most integral of the jury's functions, a function which there was no reason to believe any properly instructed jury to be incapable of properly performing.

We are, with respect, in general agreement with the view of Carter J on these questions. As Dixon J once said: -

... at bottom the choice is between the course of placing before the jury material which bears upon the case, leaving them to judge of its reliability and probative value, and the course of withholding it from them on the ground that there is too much danger in their taking into consideration matter which by reason of its source or provenance is prima facie dubious and untrustworthy. (Sinclair v R (1946) 73 CLR 316 at 333.)

The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge's directions concerning the considerations, both general and particular, affecting its reliability, including of course in an appropriate case the matter of corroboration. Trial judges must be at pains to ensure that the discretion to exclude admissible evidence on the ground of unfairness is not used (contrary to Doney) to withdraw a case from the jury on the footing that any conviction would be unsafe or unsatisfactory. The judge in the present case has really exercised the discretion to reject admissible evidence on the ground of unfairness on the basis that a conviction based on the apprehended Crown case would be unsafe or unsatisfactory, and has, so to speak, given in favour of the defence an anticipatory ruling (in the light of the apprehended or hypothetical Crown case) which Doney would show to be erroneous had it been given at the close of the Crown case.”[16]

  1. Bearing those principles in mind, I am not satisfied that the defendant has established this this is a case where the residual fairness discretion should be exercised to exclude the evidence. As Martin J noted in R v Lobban[17] the warning in Rozenes v Beljajev about the need to avoid usurping the function of the jury should be heeded. His Honour referred to the importance of protecting the rights and privileges of the accused, as well as the importance of ensuring that there is no risk that an accused may be improperly convicted. In my view, the admission of the evidence does not create a perceptible risk of a miscarriage of justice that cannot be adequately dealt with by appropriate directions to the jury. I am not satisfied that the admission of the evidence would result in an unfair trial. In this regard I note the remarks of Marin J:[18]

“Nevertheless, for these purposes the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of "the rights and privileges of the accused", which rights "include procedural rights" (p189 and p197). Both discretions look "to the risk that an accused may be improperly convicted" (p189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion.”

  1. The application to exclude the evidence of the YouTube search on 13 August 2015 is refused.

Footnotes

[1]  At 11125, para (e).

[2]  (1989) 167 CLR 590, at 594-595.

[3] Driscoll v R (1977) 137 CLR 517 at 541; 15 ALR 47 at 57; [1977] HCA 43; BC7700059; R v Sang [1980] AC 402 at 444-5; [1979] 2 All ER 1222 at 1237; Stephens v R (1985) 156 CLR 664 at 669; 58 ALR 753 at 757; [1985] HCA 30; BC8501135; Harriman v R (1989) 167 CLR 590 at 594--5; 88 ALR 161 at 164; BC8902698; R v Edelsten (1990) 21 NSWLR 542; 51 A Crim R 397 (CCA); R v McLean and Funk: Ex parte A-G [1991] 1 QdR 231 at 236-40. 241-2 and 251-2 (FC); R v Chai (1992) 27 NSWLR 153 at 175 (CCA); Rozenes v Beljajev [1995] 1 YR 533 at 549; (1994) 126 ALR 481 at 498 (FC); R v Lobban (2000) 77 SASR 24; 112 A Crim R 357; [2000] SASC 48; BC200002916; Police v Hall (2006) 95 SASR 482; 46 MVR 351; [2006] SASC 281; BC20060724 l; R v Grimes [2013] 1 QdR 351; [2012] QSC 229; BC201206150 at [31]-[44]; Haddara v R (2014) 43 YR 53; [2014] VSCA 100; BC201403888.

[4]  [1990] 2 Qd R 436.

[5]  [2015] HCA 26.

[6]  (2000) 77 SASR 24.

[7] Police v Dunstall [2015] HCA 26 at [15], referring to the decision in R v Lobban.

[8]  [2013] 1Qd R 351.

[9]  At [19].

[10]  (1992) 177 CLR 292 at 364.

[11]  (1992) 177 CLR 292 at 364.

[12]  At [69].

[13]  (1990) 171 CLR 207.

[14]  [1995] 1 VR 533 at 559.

[15]  At 550.

[16]  At 553- 554.

[17]  [2000] SASC 48.

[18]  At [82].

Close

Editorial Notes

  • Published Case Name:

    R v Bennetts

  • Shortened Case Name:

    R v Bennetts (No 3)

  • MNC:

    [2017] QSC 195

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    11 Sep 2017

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 181 30 Aug 2017 Section 590AA hearing. Application exclude statement and police record of interview on 18 August 2015 refused; field tape search excluded; application to exclude police record of interview on 19 August 2015 refused; police record of interview on 21 August 2015 excluded; Facebook messages sent 13 August 2015 excluded; application to exclude Facebook messages sent on 15 August 2015 refused: A Lyons J.
Primary Judgment [2017] QSC 194 07 Sep 2017 Section 590AA hearing. Application to exclude YouTube search on 13 August 2015 refused; Crown's application to re-open ruling on 30 August 2017 in relation to Facebook messages on 13 August 2015 granted; Facebook messages on 13 August 2017 admitted: A Lyons J.
Primary Judgment [2017] QSC 195 11 Sep 2017 Section 590AA hearing. Further application to exclude evidence of YouTube search on 13 August 2015 refused: A Lyons J.
Primary Judgment SC1432/16 (No Citation) 14 Sep 2017 Date of Conviction (Lyons SJA).
Appeal Determined (QCA) [2018] QCA 99 29 May 2018 Appeal against conviction dismissed: Sofronoff P and Mullins and Bowskill JJ.

Appeal Status

{solid} Appeal Determined (QCA)