Director of Public Prosecutions v Asling (Ruling No 7)
[2017] VSC 77
•28 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: | 28 February 2017 |
DATE OF RULING: | 28 February 2017 |
CASE MAY BE CITED AS: | DPP v Asling (Ruling No 7) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 77 |
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CRIMINAL LAW – Murder – Evidence – Admissibility – Attempt to revive memory in Court from statement – Whether events ‘fresh in the memory’ of the person – Statement made 12 years after events – s 32, s 66, s 192 Evidence Act 2008.
CRIMINAL LAW – Murder – Evidence – Admissibility – Unfavourable witness – No unfairness to the Accused in granting limited leave to Crown to cross-examine – s 38, s 192 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 counsel for the prosecution seek leave to have the witness, witness P, refer to his statement pursuant to s 32 of the Evidence Act 2008 (‘the Act’) in order to attempt to revive his memory about some particular facts contained in the statement but which have not so far been mentioned by witness P in the evidence he has given.
Alternatively, Mr Tinney of senior counsel, who appears with Ms Flynn, has submitted that the prosecution should have leave under s 37 of the Act to ask witness P leading questions about those matters, or that it should be permitted to cross‑examine witness P about them pursuant to s 38 of the Act.
At an early stage in the submissions, I expressed the firm view that I would not permit a leading question to be asked under s 37 as it seemed to me to be inappropriate. Mr Tinney quite sensibly has not persisted in that aspect of his application.
There are four matters in respect of which witness P has given evidence, but in which he has not stated some details that were contained in his statement.
They are, first, in his statement witness P said that when both the accused and Blewitt spoke to him after the killing of Kinniburgh, they said that they had gone to a laneway where they had set the Ford vehicle on fire. Witness P has not mentioned that detail in his evidence at all and, indeed, when asked whether either Blewitt or the accused told him where the vehicle was when it was set on fire, he said he was not told.
Secondly, witness P in his evidence has said that the accused and Blewitt each only spoke to him once after the killing of Kinniburgh about that incident. In paragraph 22 of his statement he said that both the accused and Blewitt spoke to him a few times about the shooting after it had occurred.
Thirdly, witness P in paragraph 22 of his statement said that he had remarked to the accused at one point: "You're kidding, that car was supposed to be used for robberies". Witness P has not given that evidence in court, although I should interpolate to my recollection he has stated that he did express some concern about the use of the Ford vehicle for the purpose of committing the killing of Kinniburgh.
Fourthly, in his evidence witness P has said that he can recollect that he himself filled up the coke bottles with petrol that were left in the Ford. In his statement he said that the accused man assisted him to do that.
The events in this matter occurred in December 2003. The first statement made by witness P, which he signed was on 16 July 2015. Mr Tinney submits that nevertheless at the time at which witness P made his statement his memory was fresh and, accordingly, pursuant to s 32(2)(b) of the Act, he should be permitted to refer to his statement to give evidence about the matters to which I have just referred.
Mr Tinney further submitted that the requirement that the witness’ memory be fresh at that time, whilst being a mandatory consideration, is not a prerequisite to the giving of leave under s 32 and s 192 of the Act.
In particular, he submitted that when witness P made his statement, he was a person who was closely connected to what was an extraordinary event in his life, namely the use of a car that he had stolen, in the commission of a murder, and the receipt by him of frank admissions to him by those involved in the murder.
Mr Tinney submitted that when witness P made the statement he attested to its truthfulness. The statement was not made on a casual occasion but rather to a police member for the purposes of being the basis of evidence he would give in court.
Mr Tinney further submitted that at the time witness P made the statement he would have had good reason to remember the matters contained in it but which he has omitted to say in his evidence.
Mr Tinney submitted it would not be unfair to the accused for witness P to refer to his statements so that leave ought to be given under s 192 of the Act.
Mr Tinney essentially advanced the same arguments in seeking leave to cross‑examine witness P about those matters under s 38 of the Act.
In response Mr O'Connell submitted that I should not permit witness P to refer to his statement in order to attempt to revive his memory under s 32 of the Act. He submitted that an important question, as specified in s 32(2)(b), is whether at the time witness P made the statement his memory was fresh. This case, he pointed out, is very different to cases where a victim of sexual offending makes a statement some time after the offending had taken place. In such a case, a victim would have the circumstances of the offending imprinted on his or her mind so that his or her memory might be appropriately characterised as being fresh at the time of the making of the statement.
By contrast, in this case witness P was not involved in or a victim of the crime, rather he was a friend of the accused and Blewitt, being told in a hotel about the events they say they had been involved in.
In those circumstances there is nothing, Mr O'Connell contended, in the circumstances in which the statement was later made, some 12 years later, to give the court any confidence that at that stage his memory would be reliable or accurate.
In my view the requirement in s 32(2)(b)(i) of the Act that at the time the statement was made by witness P the events related in it be fresh in his memory is, in the context of this case, an important requirement. It may well be argued that the circumstances of the statement do comply with s 32(2)(b)(ii), in that at the time he made the statement he found it to be accurate, however, the circumstances of the making of the statement by witness P were such that that factor on its own would carry very little weight on this application.
It is not necessary for me to enter at any length into the issue as to what is meant by "freshness of memory" under s 32(2)(b)(i) of the Act. However, I would apprehend that it must involve, for a case of this type, some sensible degree of temporal connection between the events related in the statement and the time at which the statement was made. In ordinary parlance a fresh memory is understood to be a memory which is of recent events. I can see no reason in s 32 why that concept should be differently construed.
There is no indication in it that the requirement should be construed in a manner which is quite contrary to the ordinary plain English word used in it.
In this respect it is significant, I think, that s 32 does use the same language that was used for a very long time in the common law to prescribe one of the tests that must be fulfilled for permitting a witness to refresh his or her memory from a document made by that witness. At common law the test did require a sufficient degree of temporal connection between the events described and the making of the statement to ensure that at the time which the statement was made the accuracy of the witness's memory was not eroded by the effluxion of time. I refer, for example, to R v Van Beelen[1] and R v Alexander and Taylor[2].
[1](1992) 6 SASR 534, 537.
[2][1975] VR 741, 749.
In addition, I note that before the enactment of s 66(2)A of the Act, the High Court in Graham v The Queen[3], gave a similar construction to the requirement that a memory be fresh for the purposes of s 66(2) of the Act.
[3](1998) 195 CLR 606.
It is true that the context of s 66 is quite different to the context of s 32, but nonetheless there is some significance in the fact that in each section the same verbal formula was utilised by the legislature.
Taking those matters into account, I could not, I think, sensibly conclude that in the circumstances of this case the witness's memory was fresh at the time at which he made the statement in 2015.
In that respect I am reinforced in that conclusion by what he said in the voir dire on 7 February 2017 at p.492 of the transcript, where he was asked in re‑examination the following questions and gave the following answers (lines 19‑30):
Q:"What do you say your memory was like about the events and the things that you were describing in that statement at the time you made your statement, how was your memory?"
A:"I was trying to recollect memories from a long time earlier. A lot of memories I tried to forget."
Q:"But I'm asking you what was your, whatever you were trying to do, what was your memory like of these various events you've described?" A: "I think it was okay. I was under a lot of ‑ ‑ ‑ "
Q: "Yes, that's all right?"
A: "Yeah, I was under a lot of stress at the time".
Those answers given by witness P in his evidence in the voir dire do not imbue me with any confidence that at the time that he made the statement his memory was fresh or, indeed, that it was so accurate as to justify the grant of leave.
In this respect I accept the submission made by Mr O'Connell that this case is very different to sexual abuse cases referred to in argument. In such a case it might well be accepted that victims of sexual abuse may have a memory that could be properly described as fresh of those events, notwithstanding that they relate those memories in a statement a long time after the abuse has taken place.
This case is quite different, where witness P was simply making a statement 12 years after he had had conversations in a hotel with the accused and with Blewitt as to what he says they said to him.
In those circumstances I do not consider that it would be appropriate to give leave under s 32 or s 192 to permit the witness to refresh his memory as to the matters to which Mr Tinney has referred and I decline that leave.
That then brings me to the application under s 38 of the Act. In my view only one of the four matters in respect of which Mr Tinney has sought leave ought qualify to be a matter about which the witness has given evidence unfavourable to the prosecution, namely, the omission from his evidence that the vehicle was in the laneway when, according to the accused and Blewitt, they set fire to it.
Given the accepted construction of the term "unfavourable" in s 38[4], I consider that the evidence given by witness P that he was not told where the vehicle was is unfavourable to the prosecution in the circumstances of this case. Indeed, Mr O'Connell of senior counsel, who appears with Mr Goldberg for the accused, correctly conceded that that is so.
[4]See e.g., Doyle v The Queen [2014] NSWCCA 4 [292] [294] (Bathurst CJ).
The critical question then is whether I should grant leave to the prosecution to cross‑examine the witness in a limited way about that aspect of his statement. The central question is whether such cross‑examination in the circumstances of this case would be unfair to the accused under s 192(2)(b) of the Act.
In submissions, Mr O'Connell was unable to point to any particular unfairness that would redound to the disadvantage of the accused if I permitted a limited form of cross‑examination in the manner that I adumbrated in the course of argument.
The Court should be slow to permit cross‑examination, particularly of a key witness, under s 38 of the Act and the Court should be particularly astute to ensure that it does not apprehend any unfairness would thereby be suffered by the defence if such cross‑examination were permitted.
In this case I do not think any such unfairness would occur provided the cross‑examination took place in a limited form. Namely, firstly, Mr Tinney should again ask the witness whether the accused and Blewitt told him where the vehicle was or the location of the vehicle at the time they set fire to it.
Secondly, Mr Tinney should ensure that if he gets a negative answer to that, that the witness's memory is thereby exhausted as to that issue.
Thirdly, that being the case, I would give leave to Mr Tinney to do no more than to take the witness to the particular sentence in his statement in which he says that he was told on separate occasions by the accused and Blewitt that the vehicle was in the laneway.
Such limited cross‑examination would not be unfair to the accused. Indeed, in some ways it might even redound to his advantage, but it would certainly not be unfair because Mr O'Connell would then, I consider, have ample opportunity to cross‑examine witness P about the differences in his memory about that matter and about associated issues.
For those reasons I give that limited leave to the prosecution to cross‑examine the witness in relation to that one matter.
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