Director of Public Prosecutions v Asling (Ruling No 6)
[2017] VSC 70
•24 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: | 24 February 2017 |
DATE OF RULING: | 24 February 2017 |
CASE MAY BE CITED AS: | DPP v Asling (Ruling No 6) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 70 |
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CRIMINAL LAW – Murder – Evidence – Admissions by accused – Probative value outweighs any unfair prejudice –s 90, s 137 Evidence Act 2008.
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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 this matter I gave a ruling on 13 February, before the commencement of the trial, on the admissibility of a number of items of evidence contained in the depositions.[1] They included a substantial part of the second statement made by the witness, who was referred to as "witness C".
[1]DPP v Asling (Ruling No 3) [2017] VSC 41R
Witness C made his first statement on 2 March 2010 in which he described admissions which he says were made to him by the accused man while they were both in custody in 2006. Subsequently, he made a statement on 8 February 2016 which additionally described admissions that he said the accused man made to him in 2008 following witness C's release from prison on 28 December 2007.
In my previous ruling I held that paragraphs 5, 6 and 12 of that statement were inadmissible because the probative value of the evidence contained in them was outweighed by their prejudicial effect.
After I gave that ruling, Mr Tinney, of senior counsel, who appears with Ms Flynn for the prosecution, raised with me that he had understood that Mr O'Connell, of senior counsel, who appears with Mr Goldberg for the accused, had not objected to paragraph 12 of witness C's statement, so the prosecution should be entitled to lead it in evidence.
On the other hand, Mr O'Connell contended that he had in fact argued the inadmissibility of that paragraph.
Having reviewed the transcript of argument, I am satisfied, as I was then satisfied, that ultimately Mr O'Connell had argued that paragraph 12 should not be admitted into evidence. However, I also accept that Mr Tinney, on reasonable grounds, did not understand that Mr O'Connell was objecting to that paragraph because, in effect, Mr O'Connell's position relating to the admissibility of paragraph 12 did alter during the course of discussion concerning paragraphs 5 and 6. I therefore accept that Mr Tinney acted on a genuine and reasonable misunderstanding of the objection ultimately made by Mr O'Connell. It is for that reason that I advised counsel that in fairness to both sides I would permit the prosecution to argue afresh the question of the admissibility of paragraph 12 and for the defence to be able to object to it.
In paragraph 12 witness C has set out the effect of the conversations that he said he had with the accused in 2008 after their release from prison. He, in particular, stated that the accused told him that he and Blewitt were waiting for Kinniburgh near his house to ambush him, that when Kinniburgh arrived they both started shooting at him, that the crossfire started between the three men and that Kinniburgh hit both of them with bullets and then they finished Kinniburgh off by shooting him.
Witness C further stated that those conversations between himself and the accused relating to those matters occurred over a number of times and in bits and pieces over the course of about 12 months in 2008 or thereabouts.
It is, of course, significant that witness C did not refer to those conversations in the first statement that he made in March 2010, a period of only about 18 months after the alleged conversations took place.
Ordinarily, in such circumstances, the defence would have a substantial basis on which to cross‑examine witness C as to the omission of those conversations from his statement in 2010 and as to his recent recollection of them. However, as I outlined in my previous ruling, it would have been hazardous for the defence, as matters then stood, to enter into that area of cross‑examination because the explanation by witness C, contained in paragraph 15 of his statement, for the omission of those matters in his first statement and his recollection of them in his second statement would have introduced evidence which would have been quite prejudicial to the accused.
In argument that preceded my earlier ruling, Mr Tinney made plain that if the defence did raise the issue as to how witness C came to remember in 2016 that which he had omitted from his earlier statement in March 2010, the prosecution would seek to lead evidence as to those matters by way of explanation.
In my ruling I considered that the evidence was of probative value but based on the matters of how it was then being put it did not substantially add to the prosecution case.
On the other hand, I considered that if the evidence was admitted the defence would suffer a significant prejudice as counsel would have been significantly hamstrung in seeking to contest the evidence of witness C as to the conversations that he said occurred in 2008 based on his recent recollection of them.
In argument before me, Mr Tinney has made it plain that if paragraph 12 of the second statement of witness C were admitted and that if the defence cross‑examined witness C to demonstrate that he did not recall the matters until 2016, and if the defence sought to put to witness C the explanation for that, namely he was then applying for parole, the prosecution would not seek to adduce evidence as to what witness C says by way of explanation for his recollection of those conversations in 2016. In other words, the prosecution would not seek to adduce the matters contained in paragraph 15 of witness C's second statement or any matter allied to that paragraph.
Mr Tinney therefore submitted that the aspect of unfair prejudice that I had considered would have arisen to the defence would no longer exist.
On the other hand, Mr Tinney submitted that the evidence contained in paragraph 12 of witness C's second statement does contain additional probative value to that which was put in argument that preceded my previous ruling. In particular, he pointed out that the admissions, which witness C says that the accused man made to him in 2008, contained detail such as the reference to the involvement of Blewitt in the shooting of Kinniburgh; the fact that the accused and Blewitt had lain in ambush for Kinniburgh to arrive at the scene; and the fact that Kinniburgh had discharged his weapon at both the accused and Blewitt.
That evidence, it was submitted, is consistent with the prosecution case and thus he contended it gave additional force to the admissions that were sought to be admitted.
In response, Mr O'Connell contended that there would be two difficulties which would be unfairly prejudicial to the accused if I were to admit the evidence of paragraph 12.
First, he submitted that if the evidence was admitted, he would need to cross‑examine witness C as to why witness C said he had experienced a return of memory in 2016 in respect of matters about which he had absolutely no recall in 2010.
Mr O'Connell submitted that it would be put to the witness that he had added those matters to his account to assist in his application for parole that was then pending. In that context, Mr O'Connell submitted that it would be artificial if the witness was constrained by not being asked as to why, according to him, he had sustained the recovery of recollection in 2016 about that which was not in his memory in 2010. Thus, Mr O'Connell contended, the defence would be unfairly prejudiced in its capacity to attack the evidence of witness C based on his lack of recollection of the matters when he made his first statement.
Secondly, Mr O'Connell has pointed out that the evidence contained in paragraph 12 of witness C's statement did not purport to be the content of a freestanding separate conversation, but, rather, it would appear, was a summation of a number of conversations that witness C said he had with the accused man in the course of 2008.
In that way Mr O'Connell contended the evidence contained in paragraph 12 could not be adduced without the witness also referring to that which is contained in paragraphs 5 and 6 of his statement, aspects of which are quite prejudicial to the accused. In particular, he submitted that it would be prejudicial to the accused if the witness were permitted to refer to matters contained in paragraph 5, namely that Blewitt had been badly injured, that he needed hospital but was not taken there, and that, rather, he was taken to an underworld doctor.
Mr O'Connell further submitted that if paragraph 12 and paragraph 5 were admitted in evidence, with those matters excluded, there would be a degree of artificiality in the evidence of the witness so that he would be unfairly constrained in his capacity to properly cross‑examine witness C about those matters.
Based on the matters that have been contended by Mr Tinney, I am persuaded that the matters contained in paragraph 12 of witness C's second statement do have additional probative value above that which I assessed them to have in my first ruling. In particular, as correctly pointed out by Mr Tinney, paragraph 12 of the second statement contains three matters, namely the involvement of Blewitt, the fact that the accused and Blewitt had waited in ambush for Kinniburgh, and the fact that Kinniburgh had fired shots, that were not mentioned in the admissions that witness C said the accused man made to him while in custody.
As Mr Tinney has pointed out, each of those three details are consistent with the prosecution case and do add to the probative value of the admissions which witness C said that the accused made to him after they were both at liberty in 2008.
The question then is whether, if I were to admit that evidence, it would be unfair to the accused under s 90 of the Evidence Act 2008 (‘the Act’) or he would suffer prejudice that would outweigh the probative value of the evidence for the purposes of s 137 of the Act.
As I stated, the basis of my previous ruling, that the admission of the evidence would be prejudicial, was based on the stance then taken by the prosecution that if counsel for the accused entered into the area of cross‑ examination as to the omission of the matters contained in the 2016 statement from the earlier statement, and, in particular, if counsel cross‑examined witness C as to why he added those matters to his account in his 2016 statement, the prosecution would then seek to adduce the matters contained in paragraph 15 of witness C's second statement by way of explanation.
The prosecution now has stated in clear terms that if those matters were to be the subject of cross‑ examination on behalf of the defence, the prosecution would not seek to adduce, by way of explanation in re‑examination, the matters contained in paragraphs 7‑11 and paragraph 15 of witness C's second statement.
In that way the matter that I considered to be the basis of unfair prejudice to the accused would not, on its face, arise if the matters contained in paragraph 12 of the statement were admitted into evidence.
The issue which then arises is as to whether the accused would nevertheless suffer prejudice or unfairness by admission of that evidence in respect of the matters to which Mr O'Connell has addressed me.
As I stated, Mr O'Connell submitted that if I were to admit paragraph 12 of witness C's second statement, the evidence would be left in an artificial position because the question would be left unasked as to why witness C said he recalled matters in 2016 when he was not able to recall them in 2010, a short period after he said the particular conversations took place.
I agree that the position would involve perhaps a degree of artificiality if witness C were not asked for that explanation. However, having given the matter careful thought, it would seem to me that that artificiality would only redound to the detriment of the prosecution and not the defence. Certainly counsel for the accused would be entitled to put to the witness that he had only recalled in February 2016 matters stated to him in 2008 which he had entirely forgotten about in 2010, and counsel for the defence would also be entitled to put to witness C that witness C only purported to recall those matters in 2016 because he considered that adding those matters to his account might enhance his prospects for parole, which was then pending.
Those questions put to witness C would admit of either an affirmative or a negative answer without entering into an account given by witness C as to his own explanation as to why he said he had forgotten the matters in 2010 yet recalled them in 2016.
I should say that these matters were touched on in the voir dire on 3 February this year, at pp.285‑287, and having reread the transcript of that voir dire and reminded myself of the evidence, it did seem to me that Mr O'Connell was able to sufficiently broach that aspect of witness C's evidence without the witness being drawn into providing the explanation that is contained in paragraph 15 of his statement.
For those reasons, while there is a degree of artificiality in the approach contended for by the prosecution, as I stated, my view is that any such artificiality would only go to the disadvantage of the prosecution and not the defence. For those reasons, I'm not persuaded that that matter would involve unfairness to the accused or prejudice to the accused.
The second matter raised by Mr O'Connell is that if paragraph 12 of witness C's statement were admitted, then it would follow that the contents at paragraph 5 and 6 of the statement might also need to be adduced in evidence.
I agree with Mr O'Connell that it would appear from the structure of the statement that it may well be that aspects of paragraph 5 and 6 might need to be given by witness C in evidence if he were to be permitted to give evidence about the content of paragraph 12.
There are contained, particularly in paragraph 5, aspects which are of concern to the defence which arguably could give rise to prejudice to the defence, in particular, the fact that the accused stated to witness C that Blewitt needed hospital, that he was not taken to hospital, and instead he went to an underworld doctor after the shooting of Kinniburgh.
In my view, those matters can be conveniently excluded from evidence, if Mr O'Connell persisted in his objection to them. I do not consider that the exclusion of those matters would involve any artificiality or difficulty to counsel for the accused in effectively cross‑examining the witness relating to the conversations that are described in paragraphs 5, 6 and 12.
As observed in argument, the matters that, according to witness C, the accused man said to him contain a number of anomalies which are quite inconsistent with the evidence in the case. In particular, the claim by witness C that both Blewitt and the accused were injured in the shooting is entirely inconsistent with objective evidence adduced that both of them were out and about on the morning of 13 December and, indeed, both of them went for a drive north in Victoria on 12 April 2004.
The evidence as to the statement by witness C that the accused told him that Blewitt was shot is also inconsistent with the evidence of Kathleen Stanton.
Accordingly, it would seem to me that there is a fertile area of cross‑examination for the defence if the content of paragraphs 5 and 6 were admitted in evidence.
I have given careful conversation to this matter and to some extent it has not been easy. Nevertheless, at present, and based on the matters that have been put to me, I am not satisfied that there would be unfairness or prejudice to the defence if I were to admit paragraph 12 of witness C's second statement and so much of paragraphs 5 and 6 that are relevant to paragraph 12, on the basis of the position taken by the prosecution, namely that if the accused challenged witness C as to his lack of reference to those matters in his first statement, and if the defence sought to put to witness C that he only put them in his second statement in order to enhance his position on parole, the prosecution would not seek to adduce witness C's explanation for his return of memory in 2016 by adducing the evidence in paragraphs 7‑11 and 15 of the second statement.
Accordingly, I hold that paragraph 12 of witness C's second statement is admissible and also, subject to the exceptions that I shall now refer to, so much of paragraphs 5 and 6 is admissible as is necessary to enable the prosecution to elicit what is contained in paragraph 12 of the second statement.
Those exceptions are that if the defence objects to them, then the following matters should be excluded from evidence: firstly, that the accused told witness C that after Kinniburgh was shot Blewitt needed hospitalisation but was not taken there; and, secondly, that instead Blewitt was taken to an underworld doctor.
In addition, as I stated during argument, if, as I have done, I were to admit paragraph 12 of the second statement of witness C, I would certainly permit counsel for the accused to conduct a further voir dire or Basha in the absence of the jury to explore any matters that have not so far been explored on the previous voir dire.
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