Director of Public Prosecutions v Avder

[2010] VCC 1609

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-08-01736

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
EMRAH AVDER	Defendant

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2010
DATE OF RULING:	16 November 2010
CASE MAY BE CITED AS:	DPP v Avder
MEDIUM NEUTRAL CITATION:	[2010] VCC 1609

REASONS FOR RULING

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Bessell	OPP
For the Defendant	Mr N.A. Hutton	James Dowsley & Associates

HIS HONOUR:

1       Prior to empanelling the jury in the trial defence counsel sought to have excluded two pieces of evidence that the Crown sought to elicit.  Subsequently defence counsel did not persist in his objection to the second piece of evidence.  I ruled against the defence on the other disputed evidence and said that I would provide reasons in due course.  These are the reasons.

2 The item of evidence was a representation made by the complainant, Mr Sidhu, to a paramedic, Owen, and to a police officer, De Georgio, while he, the complainant, was in an ambulance being conveyed from the scene of the assault in Broadmeadows to the Royal Melbourne Hospital. The representation was sought to be elicited by the Crown under s.66 of the Evidence Act 2008 (“the Act”). The substance of the representation which was sought to be elicited under s.66 of the Act was that the complainant told the proposed witnesses that he thought he had been assaulted by two males. Mr Hutton, defence counsel, submitted that the admission of the prior representation would be unfairly prejudicial and sought its exclusion on that basis under s.137 of the Act.

3       It is first necessary to consider the probative value of the evidence.  Probative value must be considered in the light of the facts in dispute.  Here the complainant was the subject of an assault.  The accused is admitting that he was a passenger in the taxi and was at the scene of the crime.  He denies that he acted in concert with his fellow passenger or aided and abetted his fellow passenger to assault and rob the driver.  The complainant has no present memory of the events of the night.

4       Defence counsel argued that at best the evidence had slight probative value to a fact in issue, namely whether the accused participated in the manner alleged by the Crown in the alleged assault and robbery.  Defence counsel argue that the probative value would be outweighed by the danger of unfair prejudice to the accused.  The basis for this unfair prejudice was that the evidence was unable to be the subject of cross-examination due to the memory loss by the complainant.  This was compounded by the fact that the evidence itself was equivocal in that the paramedic said that the complainant “thought” he had been assaulted by two males.  On the other hand the police officer recorded that he was told by the complainant that he had picked up passengers and later he had been assaulted by them.

5       I am unable to accept the defence submission that the evidence had only slight probative weight.  In the context of a circumstantial case, where each piece of evidence must be considered in the context of the whole of the evidence, it had significant probative value.  There was to be other evidence as to the events in the cab, the level of the unpaid fare, the three voices being heard, the injuries to the complainant, and the observation of flight by one of the assailants.  Added to this was the evidence as to possible injuries to the accused’s knuckles, which, although a subject to challenge as to relevance that had been foreshadowed, such challenge was withdrawn.

6       While the proposed evidence was the only direct evidence as to complicity, its probative value had to be considered in the light of all the other evidence I have referred to, including that the accused had the opportunity to commit the offences, and a motive, namely to avoid the fare.

7       I do not accept that the evidence, even if on one version it is slightly equivocal, does not have significant probative value.  In terms of the probative value it will be for the jury to consider the extent to which it regards the evidence as equivocal.

8       Next, defence counsel argued that the combination of being unable to cross-examine the original maker of the representation, plus its slight value as probative evidence, and its equivocal nature, were such that its admission would outweigh its probative value.

9       As set out in “Odgers” (8^th Edition) at 1.3.14780 quoting the case of R v Yates [2002] NSWCCA 520 at [252] and another NSW case referred to, the question is to be asked is to whether the jury will adopt “an illegitimate form of reasoning, or to give the evidence undue weight” or if there is a real risk that the evidence “will be misused by the jury in some unfair way”.

10      Here it was argued that as the evidence was the only direct evidence of complicity, and it could not be cross-examined it would be given undue weight particularly where it was equivocal.

Assessment

11      First, the evidence here is significant.  It cannot be cross-examined and must be considered in the light of all the evidence.  Whether it will be misused or given undue weight must be considered in that context.  I am unable to accept that the jury will give the evidence undue weight.  The fact that it is untested will be clear to the jury and can be the subject of argument by the defence.  Further, it can be the subject of direction by the Court.  Similarly, the fact that the evidence is equivocal is a matter that will be clear to the jury from the different proposed versions from the two witnesses.  The equivocal nature of the evidence will also be apparent from the fact that the Crown is relying on a circumstantial case which relies on a number of other items of evidence to allow the jury to draw the conclusion beyond reasonable doubt that the accused was in fact complicit in the offences in the way alleged by the Crown.  Thus, I am unable to accept that the two individual grounds argued by the defence or the two matters in combination are such that the jury will overvalue the evidence, misuse it, or use it to engage in prejudicial reasoning against the accused. 

12      As put by the Crown prosecutor the evidence here is in a similar category to that of complaint evidence which is admitted, even though not given in evidence by a complainant.  While in some of the cases that evidence may go only to credibility, and here the evidence is being led for the truth of the representation, the evidence itself, when considered in the context of the whole Crown case is not of such a nature that it would cause a properly instructed jury to engage in emotional revulsion or any other form of improper reasoning.  Similarly, to the extent that the evidence is equivocal I do not accept that it will be given undue weight or that its equivocal nature will cause unfair prejudice in the form of improper reasoning such that the danger of any improper reasoning will outweigh the probative value of the evidence.  In rejecting the defence submissions I have considered the cases relied on by defence counsel, including the cases of R v Blick (2000) 11 ACrimR 326, Papakosmas v R (1999) 196 CLR 297 and R v Suteski [2002] NSWCCA 509.

13      The learned Crown prosecutor relied on a decision DPP v McRae [2010] VSC 114 at [50-51]. In that case Curtain J first stated at [38] that “it is for the jury rather than the trial judge to determine whether the evidence is reliable”. Next at [51] Her Honour asked whether there was a danger that the accused’s case may be “damaged in some unacceptable way by provoking some emotional response in the jury” or there was a danger that the jury would rely on the evidence on a basis which is logically unconnected with the issues in the case. Here applying that reasoning I am unable to find that there is any basis that the jury would use the evidence in a way logically unconnected with the case or that the jury would, should the evidence be admitted, be provoked into an emotional response against the accused. Therefore, despite the inability of the accused to cross-examine the maker of the representation, I do not accept that the evidence should be excluded as unfairly prejudicial. I therefore ruled that the evidence was admissible.

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