Director of Public Prosecutions v Asling (Ruling No 4)
[2017] VSC 42
•13 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0092
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN JOHN ASLING |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 February 2017 |
DATE OF JUDGMENT: | 13 February 2017 |
CASE MAY BE CITED AS: | DPP v Asling (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 42 |
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CRIMINAL LAW – Murder – Evidence —Hearsay statements by deceased witness — Whether first-hand hearsay —Whether made in circumstances making likely were reliable — Whether prejudicial — Evidence excluded — Evidence Act (Vic) 2008 s 65(2)(d), s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC with Ms S Flynn | Solicitor for Public Prosecutions |
| For the Accused | Mr M O’Connell SC with Mr M Goldberg | Stary Norton Halphen |
HIS HONOUR:
In a previous ruling in this matter, I have ruled on the admissibility of hearsay evidence sought to be adduced by the prosecution from witness P.[1] In that ruling, I also set out hearsay evidence that the prosecution seeks to adduce from Detective Sergeant Solomon as to statements made to him by Carl Williams in Barwon Prison between 22 December and 29 December 2008 while Williams was then serving a life sentence. As noted in that ruling, at the request of the prosecution, I deferred hearing argument on the admissibility of that evidence, while the prosecution considered some preliminary matters that I raised in the course of argument. The prosecution now seeks a ruling from me as to the admissibility of that evidence.
[1]DPP v Asling (Ruling No 2) [2017] VSC 38R.
As Williams is now deceased, and is therefore unable to give evidence, the prosecution seeks to adduce the hearsay statements that he made to Sergeant Solomon pursuant to s 65(2)(d) of the Evidence Act (‘the Act’). In my earlier ruling I have set out the statements made by Williams to Sergeant Solomon, and the principles that are applicable to that provision. I shall not repeat those matters in this ruling, save to note that the prosecution, essentially, seeks to adduce evidence from Sergeant Solomon as to three of the matters stated to him by Williams, namely:
(1)That ‘Stephen Asling and Terrence Blewitt are the shooters’.
(2)‘He (Williams) provided the firearm’.
(3)‘He (Williams) procured the murder of Kinniburgh’.
Apart from also stating that Blewitt is now dead, the three statements, that I have set out in quotation marks, are the totality of the statements made by Williams to Sergeant Solomon concerning the murder of Kinniburgh, as recorded in the notes of Sergeant Solomon.
It is not in dispute that each of the three statements satisfy the requirements of s 65(2)(d)(i). Standing alone, the first statement was not against the interests of Williams. However, it was made in the context of the second and third statements, and of Williams telling Solomon that he was prepared to make a statement about his knowledge of and ‘involvement in’ the killing of Kinniburgh. Accordingly, I accept that each of those three statements comes within s 65(2)(d)(i). However, otherwise, there are, in my view, insuperable hurdles to the admissibility of the evidence, both under s 65(2)(d)(ii), and also pursuant to s 137 of the Evidence Act.
The first issue is whether the statements made by Williams to Solomon were ‘first hand’ hearsay as defined by s 62(1) and (2) of the Act, namely, representations made by Williams based on something that he ‘… saw, heard or otherwise perceived, other than a previous representation made by another person (to Williams) about the fact’. There is no evidence that Williams was present at, or saw or physically perceived, the shooting of Kinniburgh in the early hours of 13 December 2003. Indeed, the prosecution case is to the contrary. Mr Tinney sought to persuade me, that notwithstanding that circumstance, the fact that Williams procured the murder, and provided the weapon, and the fact that the Kinniburgh was murdered, was sufficient to provide Williams with first hand knowledge of the fact that Blewitt and the accused were the persons who actually carried out the killing. That argument is inconsistent with the definition of first hand hearsay in s 62(1) and (2) of the Act. It is therefore clear that the first representation, sought to be adduced, is inadmissible, as it is not first hand hearsay.
A more difficult question is whether the prosecution has demonstrated that the second and third statements, sought to be elicited from Sergeant Solomon, are each first hand hearsay. The problem arises because each of those statements were made, no doubt deliberately, by Williams to Solomon in a short and general form. As such, those statements are in the form of conclusions of fact, rather than statements of fact. The verbs ‘procure’ and ‘provide’ are each of general and indeterminate ambit. For example, by stating that Williams procured the murder, did he mean that he directly purchased it, that he organised it, or simply that he funded it? The same points arise about the verb ‘provide’.
More significantly, the difficulty, arising from the form of the evidence, is that, as I stated, Williams did not have first hand knowledge as to who actually carried out the murder. If Williams had stated that he provided money, or weapons, to witness A, to be used in the intended murder of Kinniburgh, that evidence may be first hand hearsay. However, each of the second and third statements links the actions of Williams (procuring and providing) with the actual carrying out of the murder. In other words, the prosecution seeks to elicit the second statement to prove that the murder, that was carried out, was procured by Williams. Self-evidently, that statement contains a second hearsay component, because Williams did not have firsthand knowledge of who killed Kinniburgh. Equally, the statement that Williams provided ‘the’ firearms is only relevant if Williams provided the actual firearms used in the murder. Again, the problem that arises from that statement is that Williams did not have first hand knowledge of who carried out the murder of Kinniburgh.
In those circumstances, the prosecution has not demonstrated that the second and third statements, made by Williams to Detective Sergeant Solomon, were first hand hearsay. For those reasons, it follows that none of the three statements, sought to be elicited from Detective Sergeant Solomon, are admissible under s 65(2)(d) of the Act.
Further, if in fact any of those three statements were first hand hearsay, I am not satisfied that they were made in circumstances that made it likely that the particular representation is reliable, for the purposes of s 65(2)(d)(ii) of the Act. Mr Tinney SC, who appears with Ms S Flynn on behalf of the prosecution, contended that I should conclude that each of the representations were made in circumstances that made it likely the representations were reliable. At the time, Williams was endeavouring to make a deal with the prosecuting authorities concerning the murder of Mr and Mrs Hodson, and he was endeavouring to obtain an indemnity against prosecution in respect of that matter. Clearly, the provision of that indemnity to him was a matter of some importance. Accordingly, Mr Tinney submitted, Williams would not be likely to have put his credibility at risk, thus jeopardising the indemnity, by telling the police something which he knew was false, and which he knew might be proven to be false.
That argument does have some persuasive force. However, it does involve a significant degree of speculation. At the time that Williams spoke to Detective Sergeant Solomon, the Kinniburgh murder was unsolved. However, according to witness C, a book had been published in 2007 implicating the accused and Blewitt in the murder. It would therefore appear that Williams was not alone in seeking to implicate those two men in the murder of Kinniburgh. Secondly, in speaking to Detective Sergeant Solomon, Williams made it clear that he was not prepared to say anything further about the Kinniburgh matter until he received an indemnity in respect of the Hodson murders. Thus, in speaking to Detective Sergeant Solomon, in short and general terms, he did little to put at risk the grant of such an indemnity to him.
On the other hand, as pointed out by Mr O’Connell SC, who appears with Mr M Goldberg for the accused, at the time, Williams was seeking substantial benefits for himself. In particular, he was not only seeking to obtain an indemnity in respect of the Hodson killings, but also of the provision of financial and other benefits to him and his family. It was in that context, and at that point of the negotiations, that Williams ‘dangled the bait’ before the prosecution of his knowledge of the killing of Kinniburgh. In other words, Mr O’Connell submitted that I should infer that it was at least reasonably possible that Williams was using his purported knowledge of the killing of Kinniburgh as additional incentive to the prosecution to deal with him and provide him an indemnity in respect of the Hodson matters.
Each of those matters, relied on by Mr O’Connell, weigh against the proposition of the circumstances in which Williams spoke to Sergeant Solomon were such as to make it likely that what he told Solomon about the Kinniburgh murder was reliable. On his own admission, Williams was criminally concerned in the killing of Kinniburgh. As an accomplice, what he said about that crime was inherently unreliable, particularly given the circumstances in which he was seeking to gain advantages for himself, and his family, when negotiating with the police. As observed by the High Court in Sio v The Queen,[2] a question necessarily arises over the assertions made by a person such as Williams to police by reason of the circumstance that Williams was, by his own admission, an accomplice to the murder of Kinniburgh.
[2](2016) 334 ALR 57, 72-73 [73].
In those circumstances, the prosecution has not demonstrated that the representations were made by Williams to Detective Sergeant Solomon in circumstances that make it likely that they were reliable. Accordingly, if the representations were otherwise admissible, they do not satisfy the requirement of s 65(2)(d)(ii) of the Act.
Finally, if, contrary to the conclusions I have reached, the evidence were otherwise admissible under s 65(2)(d), I would be obliged to exclude it under s 137 of the Act, on the grounds that the probative value of the evidence does not outweigh its prejudicial effect.
As a matter of proper analysis, each of the three representations made by Williams to Solomon are of limited probative value. They were each expressed in general, and conclusionary, terms, and not as proper statements of fact. If Williams were available to give evidence, and had given evidence, in the form of those statements, standing alone the representations would have been of little, if any, probative value. On the other hand, the admission of the evidence would involve a not insubstantial degree of prejudice to the accused. The general form, in which the representations were made, would render it difficult for the accused to rebut, or cast doubt on, those representations, and particularly the second and third representations. Further, the admission of the evidence would probably require counsel for the accused to embark on an examination, in some detail, of the circumstances in which Williams was speaking to the police, and endeavouring to consummate deals with the police to his own advantage. That line of inquiry would constitute an undesirable distraction for the jury, and for counsel for the accused, from the issues that are at the centre of this case. In those circumstances, the probative value of the representations made by Williams to Sergeant Solomon would be outweighed by the prejudice to the accused if the evidence were admitted.
For the reasons I have stated, I therefore rule that the statements, made by Carl Williams to Detective Sergeant Solomon (and Detective Senior Constable Davey) in Barwon Prison between 22 December and 29 December 2008, are not admissible in the trial.
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