Director of Public Prosecutions v Johnson and Ors (Ruling nos 3 and 5)
[2007] VSC 578
•20 November 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1553 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| LANCE CRAIG JOHNSON, BRIAN DAVID ZERNA, SHANE FRANCIS BUGEJA AND KHODI ALI | Accused |
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JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 13 and 20 November 2007 | |
DATES OF RULING: | 14 and 20 November 2007 | |
CASE MAY BE CITED AS: | DPP v Johnson & Ors (Ruling nos 3 and 5) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 578 | |
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CRIMINAL LAW – evidence – exclusion of evidence – witness in drug trafficking conspiracy trial – witness pleaded guilty to his part in the conspiracy – witness had been dealt with and was presently giving evidence for the prosecution against alleged co-conspirators - counsel for one accused, in cross-examination of the witness, intended to challenge fact of meeting between witness and that accused – senior counsel for prosecution would obtain corroborating evidence in re-examination – that evidence intended to show the accused had committed a drug-related burglary – prosecution could independently prove the accused was convicted of that burglary – defence sought ruling before witness cross-examined on the subject in question – general discretion to exclude evidence to ensure a fair trial – whether the testimony would have low probative value yet high prejudicial effect – whether excluding the evidence necessary to ensure a fair trial of the accused – evidence was of high prejudicial effect but also of high probative value – fairness a two-way street – not necessary to exclude to ensure a fair trial - evidence not excluded.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Tovey QC with Mr S Milesi | Office of Public Prosecutions |
| For the accused Mr Johnson | Mr S Robertson | Chester Metcalfe & Co |
| For the accused Mr Zerna | Mr L Barker | Patrick W Dwyer & Associates |
| For the accused Mr Bugeja | Mr I Polak | Leanne Warren & Associates |
| For the accused Mr Ali | Mr G Georgiou | Victoria Legal Aid |
HIS HONOUR:
This is Ruling numbers 3 and 5.
Brian Zerna is one of four co‑accused charged with drug offences in this trial before a jury.
The first prosecution witness is under cross‑examination by Mr Zerna's counsel. That witness, whose nom de plume is “PTO”, is alleged to be a co‑conspirator in the drug offences Mr Zerna and the other accused persons are charged with. PTO pleaded guilty to the charges brought against him for his part in the alleged conspiracy, has already been dealt with and is now giving evidence for the prosecution in this trial.
An important aspect of PTO's evidence is his account of a lunchtime meeting that allegedly occurred at the Panton Hill Hotel on 19 July 2005. PTO has deposed that he met with Mr Zerna and Mr Johnson (a co-accused) on that occasion and that the two discussed matters relating to the supply of chemicals to Mr Zerna's alleged syndicate for the manufacture of methylamphetamine.
Counsel for Mr Zerna wishes to put to PTO that that meeting did not happen. If he does so, senior counsel for the prosecution would wish to re‑examine PTO about one aspect of the conversation that allegedly occurred between the two men at the meeting. That aspect was not covered in the examination‑in‑chief of PTO. The conversation alleged is that Mr Zerna boasted to PTO that he, Mr Zerna, had burgled the Sigma factory to obtain chemicals. I have been informed by the prosecution that it is in a position, independently, to prove that Mr Zerna was convicted and dealt with for that burglary. It contends this will supply some corroboration of PTO’s evidence that the meeting occurred.
Counsel for Mr Zerna asks me to rule in advance that the prosecution cannot lead evidence on this subject in re‑examination. He contends that, if that evidence is led, Mr Zerna would be shown to have committed a drug‑related crime which, in this trial of drug charges, would be very prejudicial. If I were to rule the prosecution could lead the evidence this would, in effect, preclude him from putting to PTO that the lunchtime meeting did not occur.
Counsel for Mr Zerna has very appropriately raised the matter at this stage and I will rule on it in advance as he requests.
There is no doubt that, if counsel for Mr Zerna puts to PTO that the meeting did not happen, the prosecution would, in re‑examination, ordinarily be entitled to support PTO’s evidence in chief by eliciting corroborating material from him. Generally speaking, such corroboration could include information capable of independent proof that, very likely, was obtained by PTO from Mr Zerna in the conversation at the meeting. The alleged statement about burgling the Sigma factory falls into this category.
I could legitimately stop the prosecution from leading the evidence only by exercising my judicial discretion to exclude it. Potentially, the present case enlivens that cognate discretion in two respects.
First, the evidence could be seen to be of high prejudicial effect when compared with its low probative value. To apply the discretionary principles relevant under this category, I have to categorise that effect and that value. The prejudicial effect of the evidence would obviously be high. If evidence of the conversation alleged was to be admitted, and depending on what the jury were to make of the evidence, Mr Zerna would be shown to be a criminal, indeed, a person who had committed crimes related to drugs, being the very kind of crime for which he stands charged in this trial. However, in my view, the probative value of the evidence is also high. The evidence would provide important, although not the only, corroboration of the fact of the meeting and some aspects of what was discussed.
Counsel for Mr Zerna contends that the probative value of the evidence is reduced by the fact that PTO could have obtained the information about Mr Zerna committing the Sigma burglary from a book, published in 1999, which covered that subject. The evidence in the trial so far shows, according to counsel for Mr Zerna, that PTO could have read the book before giving his statement to the police. I acknowledge that this submission has some force. But I still think PTO’s evidence on the subject concerned, if not defeated in cross‑examination, would have a high probative value, or at least could be regarded as such by the jury. It would likely be open to the jury to conclude PTO found out Mr Zerna committed the Sigma burglary from him and not the book.
It is clear, therefore, that I should not exclude the evidence on the ground that it has a high prejudicial effect when compared with its low probative value.
Second, I could exclude the evidence because it is necessary to do so in order to ensure a fair trial of the charges brought against Mr Zerna. I accept I have a discretion to exclude evidence on this basis. The discretion is available to exclude evidence even if it is of high probative value, the question being whether the admission of the evidence would operate unfairly in the trial of the accused man, Mr Zerna.
The admission of the evidence might produce consequences that are arguably unfair to Mr Zerna in certain respects. If his counsel puts to PTO the meeting did not happen, this will open up the subject of what Mr Zerna said about the Sigma burglary in the prosecution’s re‑examination. As I have said, that will show Mr Zerna, depending on what the jury make of this evidence, to be a person who has committed drug‑related crimes, which the jury would not otherwise know. Counsel for Mr Zerna might have to cross‑examine PTO on the possibility of him obtaining the information about the Sigma burglary from the book, which would, I think, only emphasise the matter in the jury’s mind. According to Mr Zerna’s counsel, he might have to abandon the idea of putting to PTO that the meeting did not happen altogether.
There is force in all of these submissions, but fairness is a two‑way street. If I were to exclude the evidence, certain consequences would result in unfairness to the prosecution. The prosecution would be prevented from leading evidence of high probative value on an important subject. The prosecution would be forced to rely on its other corroborating evidence, which would put it in a relatively inferior position. Nothing that the police or the prosecution has done has given rise to the difficulties identified by the defence. The evidence was not illegally obtained, obtained under duress or anything of that kind. The defence would be able to put to PTO that he was lying about meeting Mr Zerna and go to the jury on that basis. Yet there is evidence that, if accepted, would corroborate PTO’s testimony in this respect.
So far as I can presently see, PTO’s evidence is not so obviously unreliable in the relevant respects that I should take this into account as a reason to exclude it, although I do note he is an informer who has been dealt with and is giving evidence from gaol. His evidence generally will be the subject of the appropriate warnings.
Although I acknowledge the difficulties encountered by Mr Zerna’s defence, I therefore consider I should not exclude the evidence in the exercise of my general discretion to ensure a fair trial of the charges brought against Mr Zerna. I do not think the trial of Mr Zerna would be unfair if the evidence were to be led. I think it is open to the prosecution to re‑examine Mr Zerna on the subject of the conversation at the meeting if counsel for Mr Zerna challenges the fact of the meeting in his cross‑examination of PTO.
In reaching that conclusion, I take into account the fact that I could instruct the jury on how any such evidence could be used. I would, as I presently see it, and unless persuaded otherwise, warn the jury not to use the evidence other than on the question of corroboration and certainly not so as to draw any adverse inferences about Mr Zerna having a bad character or a propensity to commit crimes, including drug‑related crimes. I would consult counsel on the terms of the warning.
I was also asked by Mr Bugeja to exclude the evidence in his trial.
I will not exclude the evidence as regards Mr Bugeja. The discretionary balance is slightly improved in his favour by the consideration that it is Mr Zerna who is said to have had the lunch and Mr Zerna who is said to have uttered the words on which I would allow re-examination. However, this is a conspiracy trial in which the evidence of the lunch generally goes to the question of whether there was a conspiracy to which Mr Bugeja is allegedly a party.
The considerations of unfairness to the prosecution I have already mentioned weigh heavily in favour of the admission of the evidence against Mr Bugeja. For that reason I will not exercise my discretion to exclude that evidence subject, of course, to what I have already said in regard to what I should tell the jury about how it should be legitimately used.
Later in the trial, I was asked to revisit Ruling no 3. This occurred in circumstances which the witness PTO was said to have lied under oath. It was said that this altered the balance in favour of discretionary exclusion of his evidence. As Ruling no 5, I rejected that request. The witness PTO was giving evidence from gaol and was a police informer. He fell into that category of witness about whom, depending on the position at the end of the trial, the jury would be given certain warnings. That is because of the dangerousness of relying on evidence from such witnesses. I took that into account in determining whether, notwithstanding that PTO was in that special category, the evidence he proposed to give was of high probative value. The evidence that had later been given was to the effect that he had lied on oath in the evidence he gave to the committal. That operated, on the submissions of counsel for Mr Zerna, to throw some added doubt upon the evidence PTO had given generally and required me to consider again the ruling I had given in relation to his evidence (Ruling no 3).
But, looking at his evidence overall, I did not think that the evidence he later gave about lying under oath undermined his evidence to such a degree that it could now be considered to be less than of high probative value. His evidence overall had, in my mind, about the same status as it previously had. The new evidence about lying under oath did not alter the exercise of my discretion not to exclude re‑examination by Mr Tovey in relation to the subject dealt with in my previous ruling.
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