Director of Public Prosecutions v Abuk Kuol Ruling No 2
[2019] VCC 1171
•1 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02301
| The Director of Public Prosecutions | Plaintiff |
| v | |
| Abuk Kuol | Defendant |
---
JUDGE: | Her Honour Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July 2019 | |
DATE OF RULING: | 1 August 2019 | |
CASE MAY BE CITED AS: | DPP v Abuk Kuol Ruling No 2 | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1171 | |
REASONS FOR RULING
---
Subject: Unreliability Warning
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecutor | Mr G Slim | John Cain Solicitor for Public Prosecutions |
| For the Defendant | Ms S Wallace | Stary Norton Halphen |
HER HONOUR:
1 At the conclusion of the evidence, counsel for the defence requested, pursuant to sections 12, 14 and 32 of the Jury Directions Act 2015 (the Act), that I give the unreliability direction to the jury in relation to Mr Vellu’s evidence. I will decline to give this direction, for reasons outlined below.
2 Section 12 of the Act provides that parties must request the trial judge to give or not to give particular directions in respect of particular matters in issue. Section 14 provides that I must give a requested direction unless there are good reasons for not doing so. Finally, s.31 provides non-exhaustive instances where evidence is of a kind that may be unreliable, and provides the text of the warning if given.
3 The effect of these provisions is that, given counsel for the defence requested that I give the direction under s.32 of the Act, I am first required to determine whether the evidence of Vellu is of a kind that may be unreliable. I am to consider whether this is so either because the evidence fits within one of the categories listed in s.31(a)-(e), or because the evidence in the circumstances may be of a kind that is unreliable. If I determine that the evidence is of a kind that may be unreliable, then s.14 provides that I must give the direction unless there are good reasons for not doing so.
4 I indicate at the outset that I do not regard the evidence as being of a kind that is unreliable, as it does not appear to fall within any of the listed categories under s.31 of the Act or non-listed categories. Accordingly, because the matter falls at the first limb, I do not need to consider the question of whether there are good reasons for not giving the direction under s.14.
5 Defence counsel sought the unreliability warning on the basis that the witness specifically accepted at committal and during trial that his memory was poor, and this was particularly so with the passage of time from March 2018 to the present. Counsel for the defence further submitted that direction ought to be given to highlight the caution to be given to Vellu’s evidence, given that Vellu’s inconsistent statements and memory problems are principal issues in the prosecution’s case. Counsel for the prosecution opposed the giving of such a direction, on the basis that the issues of Vellu’s evidence and poor memory are matters within the comprehension of the jury, and it is for the jury to decide the weight to be given to Vellu’s account without the need for an authoritative judicial direction. Counsel responded that Vellu had difficulty remembering minute details, but was clear in remembering that the incident happened and that he saw it.
6 I am not persuaded that Vellu’s evidence is of a kind that is unreliable contemplated by the Act, so as to require a direction in addition to the others I will be providing. If the evidence was to be of a kind that is unreliable pursuant to sections.31 and 32, it would be under the non-listed categories. The witness’ memory problems and acceptance of such problems does not, in my view, elevate Vellu’s evidence to categorical unreliability requiring judicial direction. It has been said before in the Victorian Court of Appeal in Hudson (a pseudonym) v The Queen[1] that all witnesses may be potentially unreliable to the extent that recollection is fallible – a warning is intended in circumstances where the jury may fail to appreciate potential unreliability because matters are within the Court’s accumulated knowledge and experience. Whether Vellu’s evidence is reliable, and whether his memory problems attend to matters central or peripheral to the facts in issue, are commonly matters of fact within the comprehension of the jury. Moreover, I do not regard there to be any risk that the jury will fail to appreciate potential unreliability without a specific warning. The jury can assess the weight to be given to Vellu’s evidence accordingly. Finally, I accept the submission by counsel for the prosecution that judicial warnings as to unreliability carry authority and could have a significant impact on jury deliberations.
[1] [2017] VSCA 122, [49-50]