Director of Public Prosecutions v Curran (Ruling No 3)

[2011] VSC 281

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:	9 June 2011
DATE OF RULING:	9 June 2011
CASE MAY BE CITED AS:	DPP v Curran (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2011] VSC 281

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CRIMINAL LAW – Murder trial – Evidence – Hearsay – Evidence Act s 66(2) – Evidence excluded – Evidence Act s 135(b), (c).

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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. The prosecution seeks to lead evidence as to a briefing to the members of the Homicide Squad by Detective Senior Constable Hanna of the Darebin Criminal Investigation Unit on the evening of the events with which the case is concerned.  The evidence is contained in a notice of additional evidence to be given by the informant, Detective Senior Constable Anastasiadis.  Mr Casement for the accused objects to the admission of the evidence.  The evidence is sought to be led in order to clarify or qualify evidence given in this trial by Detective Senior Constable Hanna. 

1. Detective Senior Constable Hanna attended the premises at which the deceased man died, shortly before 7.50 pm.  In cross-examination, Mr Hanna gave evidence as to a conversation which he had had with Kylie Berwick, who was at the premises at the time of the fatal shooting.  In re-examination, he read verbatim a note of that conversation which he had with Ms Berwick, and he qualified it by saying that that note was not a verbatim account of what Ms Berwick had told him at the time.  Ms Berwick had already given evidence about the matter, and had been cross-examined also about the conversation which she had with Mr Hanna. 

1. The defence will endeavour to rely on the version, which it says Hanna obtained from Berwick, as being inconsistent with the evidence she has given in this court.  It may also seek to rely on it as evidence that, in fact, it was the deceased, not the accused, who was holding the gun at her about the time of the fatal shooting.

1. At 10.00 pm Mr Hanna gave a briefing to members of the Homicide Squad which included the informant, Detective Senior Constable Anastasiadis.  The prosecution now seeks to lead evidence from Mr Anastasiadis as to what Mr Hanna, at the briefing, told him, as to what Kylie Berwick told Mr Hanna at the premises.

1. Notwithstanding, the arguments made by Mr Tinney, as Senior Counsel, who appears with Mr Sonnet for the Crown, I consider that, on its face, the evidence sought to be adduced would be double hearsay, if it was sought to be adduced to prove the truth of what Ms Berwick in fact told Mr Hanna.  As such, obviously it would not be admissible under s 66(2) of the Evidence Act.  Mr Tinney in fact argues that the evidence is not even first-hand hearsay, but I reject that submission.  Clearly, he seeks to call the evidence of Mr Anastasiadis in order to prove what Berwick told Mr Hanna, and thus, it is submitted by the prosecution, to correct, qualify or contradict what Mr Hanna in cross-examination might have been conceding that Berwick told him.  As such, the evidence might arguably be characterised as first-hand hearsay, but that does not advance the argument of the Crown. 

1. Clearly, that characterisation would not resolve the issue for the purposes of s 66(2).  Under that provision, first-hand hearsay is only admissible to prove an asserted fact.  Here, it would seem that, if there is an asserted fact, which is sought to be proven by the additional evidence of Mr Anastasiadis, that asserted fact is what Berwick told to Hanna.  Thus, at best, what is sought to be proven is not a fact which is strictly in issue, but, rather, a collateral fact in the case.  I doubt that an “asserted fact”, for the purposes of s 66(2), would be constituted by words spoken by a witness to a policeman after the event, as distinct from the facts contained in those words. 

1. However, in the absence of argument on this point, and in the absence of my being able to locate any authority on it, I need not express any concluded view, as to whether, potentially, this type of evidence could, in appropriate circumstances, be admitted under s 66(2).  For, if it were admissible, I would exclude it, in any event, under s 135(b) and (c).

1. Clearly, the evidence of Mr Anastasiadis on that point would be of limited probative value.  It would suffer from all the vices of hearsay evidence.  The best evidence, of what Mr Berwick said to Mr Hanna, is the evidence of Ms Berwick and the evidence of Mr Hanna.  Both of those persons have given evidence.  Secondly, in any event, the evidence only relates to a collateral issue and not to the central issue in the case.

1. If I was to admit the evidence on that basis under s 66(2), if it were indeed admissible under that sub-section, I would need to give highly confusing directions to the jury in relation to the evidence.  First, I would need to give them the ordinary hearsay directions, that is, as to the potential unreliability of what Hanna said to Mr Anastasiadis out of court.  Secondly, to complicate the matter further, I would need to try to explain to them that that evidence could not, on any view, even if they accepted it, be admissible to prove the truth of the facts of what Ms Berwick told Mr Hanna, but rather, simply, it may be used to prove the words spoken by Ms Berwick to Mr Hanna.  Stated in that way, it can well be seen that the introduction of this evidence would introduce a layer of confusion and complexity in the directions, which I would need to give to the jury, which would be highly undesirable, particularly as it only relates to a collateral issue.

1. Further, in any event, I consider that this evidence, if admitted, may well cause an undue waste of time in this trial, which has already gone for longer than what I would have expected.  Mr Hanna may well need to be recalled for further evidence in relation to what he told Mr Anastasiadis.  It would seem from Mr Anastasiadis’ further statement, that other members of the Homicide Squad might have been present.  I could anticipate that if this matter did have any relevance to the case, which I doubt, those members of the Homicide Squad might need to be recalled, and their notes and daybooks trawled over.  All that for a collateral issue. 

1. In my view, given what I regard is the limited value of the evidence, in any event, it is well exceeded by the danger that the introduction of such evidence would cause an undue waste of time, and I would readily exclude it under s 135(c).

1. Mr Tinney, in his forceful submissions, argued that to exclude the evidence would occasion injustice to the Crown.  I do not agree.  Mr Tinney explored the issue, in my view skilfully, in re-examination with Mr Hanna.  He, as I have already stated, asked Mr Hanna about the notes, which Mr Hanna read carefully, and indeed, in reading it out, he set out the punctuation within the notes.  He also stated that the notes were not verbatim, and thus, it must be inferred, that they should not be taken literally.

1. In those circumstances, in my view, the evidence is clearly inadmissible.  The fact that it is not admissible, does not in my view occasion any injustice to the Crown at all.  I would, however, encourage the parties to focus on the central issues in the case, which it seems to me are becoming clearer each day. 

1. With that aside, I reject the application by the Crown and uphold the objection to the foreshadowed evidence by Mr Casement.