Director of Public Prosecutions v Curran (Ruling No 2)

[2011] VSC 280

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2010 00128

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID CURRAN

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2011
DATE OF RULING:	3 June 2011
CASE MAY BE CITED AS:	DPP v Curran (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 280

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CRIMINAL LAW – Murder trial – Evidence – Witness unable to recall events described in her witness statement – Application by prosecution that witness be permitted to read statement to jury – Evidence Act 2008 (Vic) s 32(3).

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Tinney SC and Mr B Sonnet	Office of Public Prosecutions
For the Accused	Mr G Casement	Robert Stary Lawyers Pty Ltd

HIS HONOUR:

1. In this matter, the witness, Anna Anagnostopoulos, has commenced to give her evidence.  She has described how she and her late boyfriend, Paul Bassi, and her children, attended at the premises at 7 Dalgety St, Preston on the night of the events with which this case is concerned.  She has described, in a very patchy way, what occurred at those premises.  It is clear that there are significant parts of what is contained in her statement that are now not reflected in her evidence-in-chief.

1. As a result, Mr Tinney has sought to make an application before me, in the absence of the jury. Initially, that application was made, seeking leave to cross-examine the witness under s 38(1)(b) of the Evidence Act, on the basis that the witness was not making a genuine attempt to give evidence.

1. I heard the witness on voir dire. I was not satisfied, from what I heard from the witness, that she was not making a genuine attempt to give evidence. Indeed, Mr Tinney, did not continue with that application. Rather, he sought leave under s 32(3) of the Evidence Act to have the witness read aloud, as part of her evidence-in-chief, part of the witness statement, which she made on the same evening at Preston Police Station.

1. From her evidence on the voir dire, it seems that Ms Anagnostopoulos does have memory problems.  She is subject to panic attacks, and has been, although not in recent times, in receipt of psychological treatment.  She had read to her, by Mr Tinney, Senior Counsel and Crown prosecutor, the relevant parts of her statement today, but she told me, in the voir dire, that that did not revive her memory, except in very small parts.  It would appear, therefore, that it is appropriate to approach this application on the basis that the witness will not be able to recall significant parts of what is contained in her witness statement.

1. In relation to the application under s 32(3), it would seem that, strictly speaking, for leave to be given, in any event, the witness would need, firstly, to try to use a document to revive her memory in evidence. However, putting that issue to one side at the moment, it would seem that that point may well be academic, because if Ms Anagnostopoulos were to endeavour to do that, in the witness box or even out of court, at this stage, it would seem quite clear that her memory would not be revived in any material sense.

1. It is for that reason Mr Tinney seeks leave under s 32(3). By reference to s 192, he has submitted that the evidence is important, that the adducing of the evidence-in-chief of the witness in that manner would not be unfair to the accused, and it would not be likely to add to the length of the hearing, should the evidence be given in that way.

1. Mr Tinney submits that the evidence is material in three respects.  First, it meets the issue raised on behalf of the defence, that the accused, after Mr Cervi was shot, was endeavouring to give him assistance.  Secondly, it demonstrates the accused man, shortly after the death of Mr Cervi, exhibiting untoward anger and aggression.  Thirdly, part of the evidence contained in the statement, namely, the remark to Mr Bassi:  “You’re next” might be used as an implied admission of guilt on behalf of the accused.

1. In response, Mr Casement, who appears on behalf of the accused man, has submitted that it would be unfair for me to give leave to Mr Tinney, to have the witness read that part of the statement under s 32(3). He points out that I have already given leave for Mr Bassi’s statement to be read to the jury under s 65(2), on the basis that Mr Bassi is now deceased. He will not, therefore, obviously, be able to cross-examine Mr Bassi.

1. The difficulty that that causes to the defence, he has submitted, will be compounded by the fact that, if Ms Anagnostopoulos’ statement is read to the jury, he will be severely inhibited in cross-examining her, because any question he asks her about that aspect of her statement, will almost inevitably be met with an inability by the witness, now, to recall anything about the making of it, as to the matters which were related in it, or as to any other matter which is material in that respect.

1. The critical question, then, is whether it would be unduly unfair to the accused for me to permit Mr Tinney to take the course, which he seeks to take under s 32(3), and that, of course, is to be weighed against the importance to the Crown of the evidence to its case.

1. In relation to the first two purposes, which Mr Tinney seeks to have served by the evidence, namely that it contradicts the point being made by the defence that the accused was acting in a manner that was solicitous to the deceased man and also the point that the accused was still fuelled by anger at the time Mr Bassi arrived; I agree with Mr Casement that there is other evidence, which the Crown has available to it, including the 000 call, and I do not consider that those two purposes need to be served by the reading of the statement under s 32(3).

1. The real crux of the issue before me relates to that part of the statement, in which Ms Anagnostopoulos states that she heard the accused man saying, “Go or you’re next.”  That statement is sought to be relied on by the prosecution as an implied admission, and it was that part of Mr Bassi’s statement that was subject to argument before me, before the commencement of this trial.

1. The question, as to whether I ought to give leave under s 192(2), is a difficult issue, and particularly a difficult one to decide during the running of the trial.  As I have indicated, Mr Bassi’s witness statement, including that part of it containing the alleged remark by the accused, will be read to the jury.  However, in doing so, I will be giving to the jury, both in the course of the case, and in my final directions to them, strict directions in relation to the unreliability of hearsay evidence, and in particular, the reason for that in a case such as this, namely, the lack of opportunity for the defence to be able to cross-examine that evidence.

1. On the other hand, if Ms Anagnostopoulos reads that part of her statement to the jury, I agree with Mr Casement that he would be severely limited in his ability to effectively challenge it by cross-examination.  Mr Tinney has suggested that it might be put to the witness that she was influenced by Mr Bassi to make that part of the statement, but I would anticipate, judging by the way she has given evidence today, that she will simply be unable to remember that, and I doubt that the defence will be able to advance that proposition to any material respect.

1. In the end, it would seem to me that, if I permitted the evidence to be given, the defence will have enormous difficulty in being able to test, firstly, the truthfulness of the part of the statement that is read, secondly, how it came to be in the statement, and, thirdly, the accuracy of it in the sense as to whether Ms Anagnostopoulos was in a position to accurately hear what was said and how it was said. 

1. Those types of issues would ordinarily be the subject, I would suspect, of rigorous cross-examination, should Ms Anagnostopoulos have volunteered the evidence  in her evidence-in-chief.  But for the witness now to read her statement; say she has no recollection as to the event related by this statement occurring, and that she has little recollection as to how it came to be in her statement, would leave the defence in a position where it could not properly challenge that part of her evidence.

1. The difficulty, with permitting the prosecution in those circumstances to take the course for which Mr Tinney contends, is that it would be very difficult, if not impossible, for me to offset the unfairness occasioned to the defence, by an appropriate direction to the jury. 

1. As I stated, I find this a difficult issue and, notwithstanding what I have just said, I regard it as an issue that is on the borderline, and one on which I would suspect different minds might reach opposite conclusions quite respectably. However, in the end, I am not satisfied that it would be fair to the accused, or to put it more negatively, I am not satisfied it would not be unfair to the accused to permit Mr Tinney to take the course which he does so. And so, albeit with some hesitation, I refuse leave under s 32(3).