Director of Public Prosecutions v B Makoi

[2023] ACTSC 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau

Citation:

[2023] ACTSC 22

Hearing Dates:

7 February 2023, 8 February 2023, 9 February 2023, 10 February 2023, 15 February 2023, 16 February 2023, 20 February 2023

DecisionDate:

20 February 2023

Before:

Baker J

Decision:

The application for a temporary stay of the proceedings is dismissed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judge alone verdict – interlocutory application – application for a temporary stay of proceedings – where no opportunity to cross-examine witness

Legislation Cited:

Service and Execution of Process Act 1992 (Cth)

Cases Cited:

Macdonald v R; Maitland v R [2016] NSWCCA 306

Munro v The Queen [2014] ACTCA 11

Prasad v R [2020] NSWCCA 349

R v Edwards [2009] HCA 20

R v Hatfield [1999] NSWCCA 340

Parties:

ACT Director of Public Prosecutions (ACT DPP)

Biech Maker Makoi (First Accused)

Kock-Kedhia Maker Makoi (Second Accused)

Nyalat Matot (Third Accused)

Achan Matot (Fourth Accused)

Akim Dau (Fifth Accused)

Representation:

Counsel

T Hickey (ACT DPP)

A Doig (First Accused)

S Robinson (Second Accused)

D Ager (Third Accused)

S McLaughlin (Fourth Accused)

S Baker-Goldsmith (Fifth Accused)

Solicitors

ACT DPP

Tim Sharman Solicitors (First Accused)

Andrew Byrnes Law Group (Second Accused)

Hugo Law Group (Third Accused)

Legal Aid ACT (Fourth Accused)

Fraser Criminal Law (Fifth Accused)

File Number:

SCC 3 of 2022

SCC 4 of 2022

SCC 13 of 2022

SCC 14 of 2022

SCC 15 of 2022

SCC 16 of 2022

SCC 49 of 2022

SCC 50 of 2022

SCC 139 of 2022

BAKER J:

Introduction

1. The accused, Kock-Kedhia Maker Makoi (also known as “KK”), Biech Maker Makoi (also known as “Tabisa” Makoi), Achan Matot, Nyalat Matot and Akim Dau are each charged with joint commission aggravated burglary, joint commission assault occasioning actual bodily harm, joint commission damage property and joint commission threat to kill. In brief, the prosecution case is that on 22 June 2020, the accused entered Ms Achol Garang’s unit without her permission, and that whilst inside the unit they assaulted Ms Garang and damaged her property. The Prosecution alleges that Ms Achol Bol was also in the unit at the time of the offences, and that Ms Bol was also assaulted by one or more of the accused.

1. On Thursday 16 February 2023, which was the sixth day of the trial, Ms Bol was called to give evidence on behalf of the prosecution. The Court was informed that Ms Bol was giving evidence via audio-visual link (“AVL”) from a university in Victoria.

1. Ms Bol completed her evidence in chief and commenced cross-examination. Approximately 15 minutes into that cross-examination, Mr Doig, who appeared for the accused Tabisa Makoi, asked the following question:

My friend, the prosecutor, has asked you some questions and unfortunately, I’ve got to go back there and ask you similar questions. Because as the prosecutor has indicated, some of the things you’ve said today are different to what you told police on 22 June 2020, do you understand that?

1. Ms Bol responded “yes”. She then disconnected from the AVL from which she was giving evidence, left the location and did not return. She did not answer calls from the prosecution for the remainder of the day.

1. On the application of the prosecutor, I granted an adjournment to 10:00am this morning to enable the prosecution to attempt to contact Ms Bol and to secure her attendance to complete the remainder of her evidence in the trial.

1. I was advised by the Prosecutor this morning that the prosecution had not been able to contact Ms Bol over the weekend. For reasons that I will outline shortly, the prosecutor does not seek a further adjournment of the proceedings to secure Ms Bol’s attendance.

1. Mr Robinson and Mr Doig, who appeared respectively for the accused Kock-Kedhia Makoi and Tabisa Makoi, each made an application for a temporary stay of the proceedings until such time as Ms Bol could be brought before the Court to give the remainder of her evidence. The prosecution opposed this application.

1. Counsel for the remaining accused neither consented to, nor opposed, the application for a temporary stay. Mr McLaughlin, who appeared for the accused Achan Matot, submitted that, if a temporary stay was granted in respect of one or more of the other accused, the Court could proceed to judgment in respect of his client, whilst the remaining proceedings were temporarily stayed. He acknowledged that reasons could not be provided by the Court whilst the remainder of the proceedings were subject to the stay.

1. For the following reasons, I dismiss the application for a temporary stay. 

The parties’ submissions

1. Mr Robinson (whose submissions Mr Doig adopted) submitted that Ms Bol’s evidence in chief was inconsistent with the interview that she had given to police in material respects. Mr Robinson also submitted that the evidence given by Ms Bol in the proceedings to date demonstrated that Ms Bol and Ms Garang had discussed the evidence that they would give in court.

1. Mr Robinson submitted that his client faced material unfairness by not being able to cross-examine Ms Bol on the following topics:

(a)Whether Ms Bol had colluded with Ms Garang to fabricate evidence;

(b)Inconsistencies between Ms Bol’s evidence and her interview with police (such that those inconsistencies could not be put to Ms Bol);

(c)The events of 21 June 2020 (when the prosecution alleges that Ms Garang went to KK Makoi’s house in the company of Achieu Bol, Achol Bol and a friend known as “DJ” to drop off some of Ms Dau’s belongings. Whilst Ms Garang, Achieu Bol, Achol Bol and DJ were at the house, Ms Dau’s belongings were set on fire. Immediately after they left, KK Makoi discovered that her dog had been run over by a car);

(d)Ms Bol’s assertion about one of the assailants using a “metal pole” (in circumstances where Ms Garang had only mentioned an assailant using a “wine rack”), her evidence that one of the intruders was referred to as “KK”, or her evidence that petrol was poured in the apartment; and

(e)It could not be put to Ms Bol that the attackers were, in fact, present in the apartment with the consent of the occupiers, and hence did not include Ms Bol.

1. Mr Robinson acknowledged that the exclusion of Ms Bol’s evidence under s 137 of the Evidence Act would cure any potential Browne v Dunn issues. However, he submitted that his client would lose the opportunity to elicit evidence in support of her contention that Ms Garang and Ms Bol colluded to fabricate evidence and that his client would also lose the opportunity to cross-examine Ms Bol about the events of 21 June 2020.

1. The Prosecutor opposed the application for a temporary stay. He explained that it had been difficult for the prosecution to locate Ms Bol to give evidence in the first place and that it had been necessary for the prosecution to use intermediaries to facilitate her attendance at court. He noted that it would be necessary for the prosecution to issue a warrant under the Service and Execution of Process Act 1992 (Cth). He said that there could be no guarantee that Ms Bol’s attendance would be secured, even if such a warrant was issued and executed.

1. The Prosecutor drew my attention to other cases in which the evidence was incomplete and where an application for a stay had been refused by the Court, including R vHatfield [1999] NSWCCA 340 at [17], citing R v McCarthy & Ors (unreported CCA, 12 August 1994) and R v Edwards [2009] HCA 20; 83 ALJR 717.

Determination

1. The principles governing the exercise of the discretion to order a temporary stay were summarised by Bathurst CJ (R H Hulme J and Bellew JJ agreeing) in MacDonald v R;Maitland v R[2016] NSWCCA 306; 93 NSWLR 736; at [140] as follows:

It is well established that the court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness. However … a stay will only be granted to the extent necessary to relieve against unfair consequences.

1. Accordingly, a stay should not be granted where potential unfairness may be sufficiently ameliorated by other remedies, such as the exclusion of evidence, or the giving of warning or directions to the tribunal of fact.

1. Section 137 of the Evidence Act 2011 (ACT) requires the Court to refuse the admission of evidence presented by the prosecutor where its probative value is outweighed by the risk of unfair prejudice. It has been held that “[t]he unavailability of cross-examination is not necessarily in and of itself a source of unfair prejudice, and is certainly not a complete answer to a tender of evidence that is not subject to cross-examination”: Munro v The Queen [2014] ACTCA 11 at [22]; see similarly Prasad v R [2020] NSWCCA 349 at [114]. However, s 137 may be available to exclude evidence in the highly unusual circumstances of this case, where Ms Bol initially gave evidence on oath, but then absented herself when she was confronted with inconsistencies in her evidence. Further, directions may be given as to the weight that can be given in respect of evidence given by a witness who was unable to be tested in cross-examination: see, for example, Munro at [28].

1. I have carefully considered Mr Robinson’s submission that either course will be inadequate because it will not permit cross-examination of Ms Bol on matters that may in turn affect Ms Garang’s credibility. However, a trial should not be stayed, whether permanently or temporarily, simply because the evidence is incomplete. As the High Court held in Edwards at [31]:

[t]rials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed.  Witnesses may die.  The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.

1. I am satisfied that the risk of any unfairness arising from Ms Bol’s absence can be sufficiently ameliorated by the exclusion of evidence and/or the giving of directions, including a forceful Mahmood direction in the event that Ms Bol’s evidence is excluded.

1. Accordingly, I dismiss the application for a temporary stay.

Orders

1. The order is as follows:

(i)       The application for a temporary stay of the proceedings is dismissed.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 20 February 2023