Director of Public Prosecutions v Henderson [Ruling No 2]
[2015] VSC 436
•4 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 190
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| JOEL HENDERSON | Accused |
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JUDGE: | BONGIORNO JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 July 2015, 4 August 2015 |
DATE OF RULINGS: | 27 July 2015, 4 August 2015 |
CASE MAY BE CITED AS: | DPP v Henderson [Ruling No 2] |
MEDIUM NEUTRAL CITATION: | [2015] VSC 436 |
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CRIMINAL LAW – Evidence – Admissibility – Murder – 000 phone calls by witness – Content – Previous representation – No point of principle – Evidence Act 2008, ss 66, 66A and 137
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Dane QC with Ms M E O’Brien | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr G Georgiou SC with Ms C Boston | Victoria Legal Aid |
HIS HONOUR:
First Ruling: 27 June 2015
In the course of eliciting evidence from Rachel Curtis, the occupier of the house at which the deceased died, the Crown sought to tender recordings of two 000 phone calls which she made proximate to the death of the deceased; the first from a bathroom in the house and the second from a paddock adjacent to the house to which she and two other witnesses fled as the events which caused the deceased’s death were taking place. A transcript of the relevant calls was also sought to be tendered.
The Crown contends that the content of these calls is relevant and admissible, not only as to the fact of their having been made, but also as proof of some of the facts asserted by the speaker to the 000 operator. It relies upon s 66 and/or s 66A of the Evidence Act 2008.
Ms Boston, for the accused, put a number of arguments in support of her submission that the calls should not be admitted. She conceded that the times that those calls were made and the place from which they were made could be adduced, as could a recording of a call to 000 made by a neighbour, Nicole Mason (neé Cook). The defence objection was only to the content of Ms Curtis’ calls.
Ms Boston submitted that statements made by Ms Curtis in one or more of those calls contradicted some of what she had already deposed to in giving her evidence in Court. Ms Boston referred to Ms Curtis’ use of the plural when referring to the attack on the deceased to the 000 operator, when she had given evidence in Court that she saw only the accused with the deceased and she could not see what he was doing. She also referred to allegedly contradictory evidence by a previous witness, Jessica Conry‑Rasmini.
Counsel described some of Ms Curtis’ statements to the 000 operator as ‘lies’. With respect to the application of s 66 she submitted that s 66(1) did not apply because Ms Curtis had lied to the 000 operator. She referred to depositional material and other statements concerning a police interview which, she contended, demonstrated this.
Section 66 is not concerned with the veracity of the prior representation. Such a representation is admissible provided it meets the criteria in the section, namely that the maker of the previous representation is available to give evidence about an asserted fact; that that person has been or is to be called to give evidence; and that, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the maker of the representation.
That there may be significant inconsistencies between the evidence of Ms Curtis given in this Court and what she told the 000 operator is beside the point. Those inconsistencies, if they exist, may or may not diminish the credit of the witness in the eyes of the jury, but this is a matter for them, not for the trial judge upon an application to invoke s 66. All of the criteria in s 66 having been met, there is no reason not to admit the 000 calls pursuant to that provision.
In the alternative Ms Boston sought to invoke s 137 of the Evidence Act 2008 and the common law to exclude the evidence of the 000 calls. She argued that the probative value of the evidence of these calls was diminished by the witness’s lack of veracity, and by the content of her statements to the 000 operator; in particular, she had used plural pronouns when describing the fatal attack on the deceased when she had previously given evidence which might have meant that she had only seen one of the two assailants with the deceased at any one time.
This submission requires a balancing exercise to be undertaken on the assumption that the jury will accept the evidence in the 000 calls as being truthful. However, there is no required assumption as to its reliability. It is necessary to make some assessment of the weight that the jury could, acting reasonably, give to that evidence and where, as here, it is contended that the quality or frailty of the evidence might result in the jury attaching more weight to the evidence than it deserved, the extent of that risk must also be assessed.
Here the jury will or might be confronted with different versions of events given by the one witness, Rachael Curtis, if the calls are admitted. They may receive different versions of those events in any event. That witness is yet to be cross‑examined, so it is impossible at this point to assess the weight which might be given to any part of her evidence, including the 000 calls, in the context of the whole of her evidence. Accordingly, I will defer ruling on the admissibility of the phone calls until defence counsel has had the opportunity to cross‑examine the witness on her evidence generally. If, after that cross‑examination, I decide the calls should be admitted counsel will be given a further opportunity to cross‑examine the witness after their admission.
Depending on what occurs it may also be necessary to examine the witness on the voir dire after counsel’s cross‑examination and before deciding to admit or exclude the 000 calls.
Accordingly, at this point I will not admit the 000 calls into evidence but will reconsider the question of their admissibility in the way in which I have set out.
Second Ruling: 4 August 2015
After the above ruling was delivered the prosecutor pointed out that the procedure I had foreshadowed in paragraphs [10] and [11] above would fragment the evidence of the witness Curtis. He submitted that it would be preferable for the witness to be examined on the voir dire, and the question of the admissibility of the 000 calls determined, before defence counsel cross-examined Ms Curtis in front of the jury. As counsel for the accused agreed with the prosecutor’s submission I decided to change the procedure I had suggested and proceeded to have the witness first examined on the voir dire and then to determine finally the question of admitting of the 000 calls before her evidence–in–chief was completed.
Although the witness’ examination on the voir dire commenced on 27 July, very shortly after it commenced the witness became ill, thereby causing the voir dire to be postponed. It eventually resumed on 4 August. On that occasion, under cross–examination by senior counsel for the defence, Ms Curtis maintained that she (and, by implication, the two witnesses with her Ms Conry-Rasmini and Dylan Hamilton) had sought refuge in a paddock adjacent to the house because ‘they’re coming after us …’. Although she subsequently admitted that a number of statements she made to the 000 operator were not true and was unsure as to some of her answers to the operator’s questions, in the context of the whole of the evidence before the jury (including that of Ms Curtis) the substance of her evidence on the voir dire was, as far as it went, largely corroborative of the Crown case. Her concessions were as to peripheral matters which were not in issue at the trial, such as her identification of the accused and Wilson, that she and her friends had heard noises earlier in the evening and that there were eight people in the house. She was not questioned on her use of the plural pronoun ‘they’ when referring to the attack on the deceased.
The fact that the 000 calls and their content (and including loud screaming and the like) were relevant to what was happening at the scene of the assault and the murder of Timothy O’Brien was not contested by defence counsel. Ms Boston added two contentions to her earlier argument: that Ms Curtis’ use of plural pronouns in some of her statements to the 000 operator decreased the probative value of her evidence because she combined ‘the two separate attacks by Mr Henderson and Mr Wilson…’ and that her untrue answers meant that the reliability of everything she said to the 000 operator was doubtful.
Applying s 137 of the Act as explained by the Court of Appeal in Dupas v The Queen[1] I was satisfied that the evidence ought to be admitted. There was no danger here that the jury might fail to recognise Rachael Curtis’ untruths, such as they were, and assess her evidence accordingly. I consider it highly unlikely that the jury would give undue weight to the evidence derived from what Ms Curtis said to the 000 operator. They had heard (or would hear) a large body of evidence, contested only on narrow issues of fact, concerning the relationship between Wilson and the accused. The accused’s participation in the events leading to the death of Timothy O’Brien would not be diminished by the witness’ untruths as to some peripheral issues. The probative value of this evidence (including the background noise audible during the calls) was not outweighed by any danger of any unfair prejudice to the accused. Accordingly, those calls, and transcripts of them, were admitted into evidence.
[1][2012] VSCA 328.
Section 137 is directed toward the danger that the jury might attach undue weight to certain evidence, here, the 000 calls. The 000 calls reveal numerous untruths uttered by Ms Curtis. The existence of those untruths bears upon her credibility so that the probative value of her evidence is decreased. Against that, the assertions made by Ms Curtis in those calls, if accepted, were potentially damaging to the accused. The untruths, however, are not difficult to identify. The significance of those untruths, namely the fact that the probative value of Ms Curtis’ evidence was thereby diminished, was obvious. Accordingly, there was little danger that the jury, having heard the 000 calls, might attach undue weight to them.
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