R v Cumberbatch (No 3) [2002] VSC 237 (9 April 2002)

Last Updated: 28 August 2002

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1470 of 2001

THE QUEEN	Plaintiff
v
MILLICENT MAY CUMBERBATCH	Defendant

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JUDGE:	FLATMAN J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 April 2002
DATE OF RULING:	9 April 2002
CASE MAY BE CITED AS:	R v Cumberbatch (No. 3)
MEDIUM NEUTRAL CITATION:	[2002] VSC 237

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CRIMINAL LAW RULING - Admissibility of evidence relating to a telephone conversation between the accused and a witness, Jan Le Gros.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston with Ms G. Cannon	Kay Robertson, Solicitor for Public Prosecutions
For the Accused	Mr D. Drake	Victoria Legal Aid

HIS HONOUR:

1. This is an application by Mr Drake on behalf of the accused, Millicent May Cumberbatch to exclude evidence from a witness, Jan Le Gros. In a statement made to police on 20 0ctober 2000, Ms Le Gros said that on 19 February 2000 she had received a phone call from a person whom she believed to be May Cumberbatch and that that person said to her, "You'll be getting a knife in your back". Mr Drake submitted that this evidence was not relevant to facts in issue as to whether the accused killed her husband and that its prejudicial value outweighed any probative value that it had.
2. Insofar as this evidence relates to a fact in issue, however, Mr Drake did concede that the Crown was trying to establish that there was some animus towards the said Ms Le Gros because of her association with the deceased, Stanley Cumberbatch. This has to be read in the context of a concern that the accused had with respect to the possibility of Stanley Cumberbatch changing his will in favour of Ms Le Gros to the exclusion of the accused and her sons. This concern was contained in a statement made to police on 15 September 2000 by the son of the accused, Phillip Cumberbatch which read in part;

"A few months ago Mum rang me in tears and asked if I knew where Dad kept his will. She told me that he had cut David and myself out of the will and left everything to a woman in Kilsyth or Mooroolbark. I told her I was busy and I would ring her back."

3. Mr Drake submitted that the Crown was in a position to lead evidence of motive without resorting to the particular statement that referred to the use of the knife. It was submitted that the reference to the knife had the danger of being misused by the jury along an impermissible line of reasoning, linking the statement about the knife with the fact that the deceased was in fact stabbed.
4. Mr Drake further submitted that the Crown already had sufficient evidence from other witnesses to enable them to lead that evidence without recourse to the evidence of this particular prejudicial telephone conversation.
5. Mr Elston for the Crown submitted that the question of motive was a significant fact in issue in the trial. He said that there was evidence that there had been a relationship between Ms Le Gros and the deceased, Stanley Cumberbatch, and that there was evidence that the accused was concerned that the deceased was going to change his will in favour of Ms Le Gros to the detriment of both herself and her two sons. Mr Elston also submitted that the evidence of Ms Le Gros, Phillip Cumberbatch, and Lydia Hackney (sister of the accused) together with the fact that after the murder the accused was found seized of the deceased's original will, all pointed to a considerable basis for animus or motive.
6. Moreover, Mr Elston submitted that there were answers given by the accused in the course of her Record of Interview with police suggesting that she was not particularly concerned about the relationship between Jan Le Gros and Stanley Cumberbatch.
7. When these things are viewed together, it seems clear that the telephone conversation in February of the year 2000 forms part of what is highly relevant evidence of motive or animus. There is evidence of continuing concern about Ms Le Gros and the possibility of changes to the will right up until the time that the deceased was killed. This evidence, in my view, is integrally bound up with the history of this matter and it would be artificial to remove this one line concerning "getting a knife in your back" from the evidence which would then not put the level of intensity and the real context of the case before the jury.
8. It is questionable that this is an issue that really arises in terms of propensity in the strict similar fact legal sense, but is rather more akin to admissible evidence in the context of relationship or res gestae evidence[1]. As McHugh J. said in Harriman[2] if the conduct can be considered as part of the transaction in issue, part of the res gestae, the exclusionary rule has no application.
9. In my view, the evidence is admissible and the application to exclude it is therefore refused.

[1] O'Leary v R[1946] HCA 44; (1946) 73 CLR 566.

[2] Harriman v R ([1989] HCA 50; 1989) 167 CLR 590 at 627-34.