Director of Public Prosecutions v Abuk Kuol Ruling No 3

[2019] VCC 1173

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

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JUDGE:	Lewitan
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2019
DATE OF RULING:	2 August 2019
CASE MAY BE CITED AS:	DPP v Abuk Kuol Ruling No 3
MEDIUM NEUTRAL CITATION:	[2019] VCC 1173

REASONS FOR RULING
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Subject: Application for direction pursuant to s42 of the Jury Directions Act 2015

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr G Slim	John Cain Solicitor for Public Prosecutions
For the Defendant	Ms S Wallace	Stary Norton Halphen

HER HONOUR:

1 Section 42 of the Jury Directions Act 2015 (the Act) relevantly provides:

Prohibited statements and suggestions in relation to accused who does not give evidence or call witness

The trial judge, the prosecution and defence counsel…must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires),the jury may –

(a)         conclude that the accused is guilty from that fact; or

(b)use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or

(c)draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.

2       As stated in my previous ruling[1], on 5 July 2019 the defence forwarded a request to the Crown requiring disclosure of notes and priors of crown witnesses.  The Crown response was that disclosure had been given.

[1]DPP v Abuk Kuol [2019] VCC 1143.

3       On 25 July 2019 the prosecutor by agreement with the defence read statements from Luke Deng, Marko Bouch Agie, Macher Chol and Matiub Bol Matiub (the inhabitants). These males were inhabitants of and within the house at the relevant time.

4       On Sunday 28 July 2019 an email was sent by the Crown to the defence at 8.00 am containing the prior criminal history of two of the inhabitants.

5       The prosecution and the defence agreed that the prior criminal history of Deng and Bouch could be led through the prosecutor.

6       In the closing address to the jury the prosecutor stated:

You’ll remember that right at the beginning of the trial, when I outlined the case to you, I told you that the other men of the house that day would be called and would be called as witnesses and tell you that they didn’t remember or see anything.  It was agreed between the parties that instead of calling them, their statements would be read into the evidence.  That was an agreement.  Ms Wallace could have requested that they be called, every one of the other occupants and give evidence in this court and be cross-examined by Ms Wallace and if she had requested that, it would have been and could have been done by the prosecution in discharge of its duty of fairness.

But that didn’t happen.  Instead, Ms Wallace did not request this.  Could have, didn’t, and would have been done, and their statements were read in by agreement instead.

Now, I’ll make it clear that I’m not submitting that Ms Wallace was legally obliged to cross-examine any of them.  She had no legal obligation or obligation of conventional practice to cross-examine any of them because the prosecution has to prove guilt, but she could have cross-examined any of these floated phantoms as possible candidates.

She could have asked them and tested them and tested their memory about their movements and activities that day or that evening but she chose not to, as I say, she was entitled to make, but she chose not to, as I say, she was entitled to make that forensic choice and then to make – and then, you know, there’s nothing legally to stop them making these veiled imputations against these absent witnesses behind their back in effect whoever they are – whoever he is and what that does though, that approach shows that – shows you the paucity and hallowness of these veiled imputations.

Its mere clutching at straws.  It’s a matter for you but it’s a complete red herring and I submit that these other occupants and any other phantom previous occupant in the past are a non-issue and you should ignore and reject it.  It’s, again, bottom of the barrel stuff.

In the face of – you should reject all that in the face of Vellu’s true and convincing evidence about what he saw and the central events, the central events that this trial is about and as you remember in the oath or affirmation you took at the beginning of the trial was to bring a true verdict according to the evidence.  According to the evidence.

7 The defence submitted that the prosecutor in his closing address breached the provisions of the Act and that I should give a direction to the jury pursuant to s 42 of the Act. The first question to consider is whether the statements contained in the closing address breached s42 of the Act.

8       The prosecutor submitted that his comments to the jury were not in breach of the Act, that they did not form any criticism of defence counsel or the accused’s case for failing to call certain witnesses. Rather, the prosecutor submitted that those comments were directed at the ‘hollowness’ of the speculation that another person might have been involved in or responsible for the offending in the absence of further evidence. Those comments were, the prosecution submitted, designed to dissuade the jury from speculation.

9       I accept that the prosecutor’s comments were in part directed at abolishing speculation from the mind of the jury. However, in light of the full context of my earlier ruling, and taking into account the entire course of these proceedings including the late disclosure of criminal priors, the prosecutor’s comments mischaracterized defence counsel’s failure to call or re-call witnesses.

10      In R v Siebel,[2] King CJ stated that:

It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.[3]

[2](1992) 5 SASR 558.

[3] Ibid, 562.

11      During discussion in the absence of the jury, the prosecutor explained:

…I was saying to the jury that nevertheless – this is a fact, Your Honour, with respect, my friend had the option completely available to call the witnesses after she knew about their priors and the Crown was ready to call them and said so and that they were all available and my friend didn’t avail herself of that option…[4]

[4] Transcript p 533.

12      Had the prosecutor merely sought to discourage the jury from engaging in speculation, he could have tailored his address to for that purpose. But by suggesting to the jury that defence counsel could have called the other inhabitants and cross-examined them but instead opted to read their statements in by agreement, the prosecutor misrepresented the course of events during the trial.

13      Disclosure of the prior criminal history of some of inhabitants of the house took place after the agreement was made. It was a forensic decision open to defence counsel not to call the inhabitants or to re-call other witnesses as this may have had an impact how the accused’s case was conveyed to the jury.

14 The effect of s42(c) of the Act is such that the prosecution was prohibited from saying, or suggesting in any way, to the jury that, because the accused did not call a particular witness, the jury may draw an inference that the accused did not call those witnesses because that would not have assisted her case.

15 The prosecutor’s comments were impermissible under the Jury Directions Act and I accordingly rule that a direction pursuant to s 42 of that Act be made to the jury.