Director of Public Prosecutions v Kocoglu
[2012] VSC 185
•24 April 2012
IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
CRIMINAL LAW DIVISION
No. S CR 2011 0110
BETWEEN:
| DIRECTOR OF PUBLIC PROSECUTIONS |
| - and - |
| HALIL KOCOGLU |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 17, 18, 19, 20, 23, 24 April 2012 | |
DATE OF RULING: | 24 April 2012 | |
DATE OF REASONS | 9 May 2012 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Kocoglu | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 185 | |
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CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record - If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen (1985) 159 CLR 45 applied; R v El-Azzi [2004] NSWCCA 455 (16 December 2004) considered - Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.
| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Solicitor for Public Prosecutions |
| For the Accused | Mr J. Desmond | C. Marshall & Associates |
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HIS HONOUR:
Introduction and summary
The Accused is charged with the murder of Branko Juran at Dandenong on 17 February 2008.
The main Crown witness, XYZ,[1] has given evidence that he saw the Accused stab the Deceased and later wipe the knife with a piece of yellow paper. He has also given evidence that the Accused told him, in relation to the Deceased, that the Accused was ‘going to go and finish him off’ and that the Accused slit his throat like you slit a lamb’s throat, and that he made a noise like a sheep.
[1]The name of the witness has been anonymised because his identity is the subject of a suppression order made on 18 April 2012.
It is common ground that the Accused cannot be convicted of murder unless the jury accepts the evidence of XYZ that is referred to at [2] above. He is the only witness whose evidence, if believed, links the Accused to the death of the Deceased. There are no other eyewitness accounts and no fingerprint or DNA evidence that implicates the Accused. The Crown has not suggested that the Accused had any motive to kill the Deceased.
Defence counsel has conceded that, on 21 February 2008, which was the day that the body of the Deceased was discovered and this discovery featured in the media, the Accused sent to XYZ the following text message:
What the hell!! Is going on. Why are you avoiding me and avoiding my fucking money. I’ll tell you why because you don’t need me anymore since I have helped you kill a Serb that may be the reason. Also, I want my cash back in cash! ASAP thank you. One difference between you and me, I haven’t got anything to lose my dear friend.
The Crown has expressly refrained from using the text message as an alternative basis of conviction based on complicity. In the Crown opening, however, the prosecutor informed the jury that if it finds that the Accused stabbed the Deceased and, as a result of the text message, the jury has a reasonable doubt whether XYZ was involved in the murder of the Deceased, that would not necessarily mean that the Accused could not be convicted of murder.
Defence counsel put to XYZ the defence case, namely, that while the Accused gave to XYZ a kitchen knife for the purpose of scaring a man that XYZ said was in his car, the Accused was not present at the crime scene and had no involvement in the crime. XYZ denied the Accused’s version of events. He also denied that he had murdered the Deceased alone or in the company of another and denied that he had concocted his evidence that implicated the Accused.
On 24 April 2012, just prior to the conclusion of the cross-examination of XYZ, the Accused applied for an advance ruling that, in the event that his counsel cross-examined XYZ on his criminal record and the Accused subsequently gave evidence, the Crown would not be given leave to cross-examine the Accused on his criminal record. The application was made under s 192A of the Evidence Act 2008 (‘Act’).
On that day, I made the following ruling:
(a) In the light of the Crown case and the defence as put to XYZ, cross-examination of XYZ on only his prior drug offences would not fall within s 104(4) of the Act. Accordingly, such cross-examination would not expose the Accused to cross-examination on any part of his criminal record.
(b) If defence counsel cross-examines XYZ on his entire criminal record, the Accused would be exposed to cross-examination only on his prior dishonesty offences.
(c) XYZ's evidence about the extent of his knowledge and experience with the caution and the criminal justice system generally does not alter the position set out in para (b). The evidence that XYZ has already given provides a sufficient basis for further cross-examination to demonstrate that he has broad experience with the criminal justice system and is familiar with the caution, and that this familiarity is not confined to road traffic offences. In other words, the defence can rebut XYZ's evidence without the need to expose his entire criminal record.
At the time that I delivered my ruling, I said that I would publish my reasons at the conclusion of the trial. These are the reasons for my ruling.
Relevant provisions of the Evidence Act 2008
Section 110 of the Act, contained in Pt 3.8 headed ‘Character’, provides that if evidence adduced to prove (directly or by implication) that an accused is of good character (either generally or in a particular respect) is admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not prevent evidence being adduced to prove (directly or by implication) that the accused is not a person of good character (either generally or in a particular respect).
Section 112 provides that an accused must not be cross-examined in relation to his or her character unless the Court gives leave.
Section 102 of the Act, contained in Pt 3.7 headed ‘Credibility’, provides that credibility evidence about a witness is not admissible. This is known as the ‘credibility rule’.[2]
[2]See the definition of this term in the Dictionary in the Act.
‘Credibility of a witness’ is defined as ‘the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence’.[3] In other words, the definition includes both credibility and reliability.
[3]See the definition of this term in the Dictionary in the Act.
Section 101A of the Act relevantly defines ‘credibility evidence’ as evidence relevant to the credibility of a witness that:
(a) is relevant only because it affects the assessment of the credibility of the witness; or
(b) is relevant because it affects the assessment of the credibility of the witness; and for some other purpose for which it is not admissible, or cannot be used, because of a provision of Pts 3.2 to 3.6.
Other provisions of Pt 3.7 of the Act contain exceptions to the credibility rule. Sections 103 and 104 are relevant to the present case and provide as follows:
103 Exception—cross-examination as to credibility
(1)The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
(2)Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to—
(a)whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b)the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
104 Further protections—cross-examination as to credibility
(1)This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.
(2)An accused must not be cross-examined about a matter that is relevant to the assessment of the credibility of the accused, unless the court gives leave.
(3)Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the accused—
(a) is biased or has a motive to be untruthful; or
(b)is, or was, unable to be aware of or recall matters to which his or her evidence relates; or
(c) has made a prior inconsistent statement.
(4)Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the accused has been admitted that—
(a)tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and
(b) is relevant solely or mainly to the witness's credibility.
(5)A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to—
(a)the events in relation to which the accused is being prosecuted; or
(b)the investigation of the offence for which the accused is being prosecuted.
…
Section 192 of the Act provides:
192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account—
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b) the extent to which to do so would be unfair to a party or to a witness; and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d) the nature of the proceeding; and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
Section 135 of the Act gives the Court a discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party; or be misleading or confusing; or cause or result in undue waste of time. Section 137 of the Act provides that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused. As will become apparent, the issues that are the subject of this ruling can be resolved under ss 103 and 104 of the Act without the need to consider ss 135 and 137.
The effect of the above provisions, insofar as is relevant to this ruling, is as follows:
(a) Sections 110 and 112 of the Act limit the circumstances in which the prosecution can be granted leave to cross-examine the accused about his or her character. Ordinarily, cross-examination of a Crown witness about his or her criminal record does not constitute evidence adduced to prove (directly or by implication) that the accused is of good character (either generally or in a particular respect). Thus, such cross-examination would not ordinarily empower the Court to grant leave to the prosecution to adduce evidence to prove that the accused is not of good character (either generally or in a particular respect). For the purposes of this ruling, it is not necessary for me to consider in what circumstances, if any, the nature of the cross-examination of a Crown witness could constitute evidence that is adduced to prove (directly or by implication) that an accused is a person of good character (either generally or in a particular respect). This is because, in the present case, the prosecution has conceded that any cross-examination about XYZ’s criminal record or character would not constitute evidence adduced to prove (directly or by implication) that the Accused is of good character.
(b) Pursuant to s 104(3) of the Act, but subject to the requirements of s 103, the accused may be cross-examined without the leave of the Court about whether the accused:
(i) is biased or has a motive to be untruthful; or
(ii) is or was unable to be aware of or recall matters to which his or her evidence relates; or
(iii) has made a prior inconsistent statement.
(c) Pursuant to s 104(4) of the Act, the Court may grant leave to the prosecutor to cross-examine the accused about a matter that is relevant to the assessment of his or her credibility if the accused has adduced evidence that:
(i) tends to prove that a prosecution witness has a tendency to be untruthful; and
(ii) is relevant solely or mainly to the witness’ credibility.[4]
[4]Pursuant to s 104(5) of the Act, a reference in s 104(4) to evidence does not include evidence of conduct concerning the events in relation to which the accused is being prosecuted, or to the investigation of the offence for which the accused is being prosecuted.
(d) An order granting leave under s 104(2) of the Act must be confined to cross-examination about matters that are relevant to the assessment of the accused’s credibility and the evidence in question must be capable of substantially affecting that assessment.[5] Such an order cannot extend to cross-examination about character per se and it cannot permit tendency evidence.
[5]See s 103(1) of the Act.
(e) Pursuant to s 104 of the Act, the mere fact that defence counsel cross-examines a Crown witness as to his or her credit does not necessarily expose the accused to cross-examination about his or her credit. It is only evidence of the type specifically referred to in s 104(4) that enlivens the Court’s power under s 104(2) to grant leave for the accused to be cross-examined about matters going to his or her credibility. Furthermore, pursuant to s 103(1), the evidence to be adduced in the cross-examination of the accused must be evidence that could substantially affect the assessment of the accused’s credibility. In deciding whether the evidence satisfies that requirement, the Court must have regard, among other matters, to the matters referred to in s 103(2).
(f) Where the preconditions for granting leave under s 104(2) of the Act are satisfied, the Court has a discretion whether or not to grant leave. In exercising that discretion, the Court must take into account the matters set out in s 192(2) of the Act in addition to any other relevant matters. The Court may also grant leave on such terms as the Court thinks fit.[6]
The position under the former s 399 of the Crimes Act 1958
[6]See s 192(1) of the Act.
The former s 399 of the Crimes Act 1958 provided relevantly as follows:
399The accused, husbands and wives as witnesses for the defence; evidence of character of accused
…
(5)A person charged and called as a witness pursuant to this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless—
(a)the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
(b)he has personally or by his advocate asked questions of the witnesses for the prosecution (other than his wife or former wife or her husband or former husband as the case may be) with a view to establishing his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution (other than his wife or former wife or her husband or former husband as the case may be); or
(c)he has given evidence against any other person charged with the same offence.
(6)A person charged and called as a witness pursuant to this section shall not be asked, and if asked shall not be required to answer, any question on the ground that paragraph (b) of subsection (5) applies to him unless the permission of the presiding judge or magistrate (to be applied for in the absence of the jury, if any) has first been obtained.
In Phillips v The Queen,[7] the High Court considered s 15(2) of the Evidence Act 1997 (Qld), which was comparable to s 399(5) and (6) of the Crimes Act. It was common ground on the appeal that the conditions for the admissibility of the appellant’s criminal record had been satisfied and that the only issue was whether the trial judge had erred in the exercise of his discretion to permit the appellant to be cross-examined on his criminal record.
[7](1985) 159 CLR 45 (‘Phillips’).
The majority (Mason, Wilson, Brennan and Dawson JJ) stated the following propositions that were relevant to s 399(5) and (6) of the Crimes Act:
(a) Section 15(2) of the Evidence Act 1997 (Qld), and its equivalents in other jurisdictions, contain a primary exclusionary rule in relation to the accused’s character (including his or her criminal record). That rule is only subject to the exceptions set out in the relevant legislation.[8] In this sense, ordinarily, a criminal trial is to proceed without the disclosure to the jury of prejudicial material which is unrelated to the facts of the case.[9]
[8]Phillips (1985) 159 CLR 45, 53-4.
[9]Phillips (1985) 159 CLR 45, 53-4.
(b) Once the Court’s discretion to grant leave to cross-examine the accused on his or her criminal record is enlivened, the discretion is at large.[10] It is an unfettered discretion governed, once it fairly arises under the statute, solely by what fairness and the interests of justice require in the circumstances of the particular case.[11]
[10]Phillips (1985) 159 CLR 45, 54.
[11]Phillips (1985) 159 CLR 45, 55, 58.
(c) There is no prima facie rule that, in the ordinary and normal case, the discretion should be exercised in favour of the Crown. Nor is there any rule that the discretion should be exercised against the Crown unless the circumstances can be described as exceptional.[12]
[12]Phillips (1985) 159 CLR 45, 54.
(d) Although the nature or conduct of the defence is such as to attract the discretion, the primary exclusionary rule is always relevant to its exercise.[13] The discretion of the trial judge to permit an attack on the credibility of an accused by reference to his or her bad character or prior convictions should be sparingly and cautiously exercised.[14]
[13]Phillips (1985) 159 CLR 45, 54.
[14]Phillips (1985) 159 CLR 45, 57.
(e) Other factors that are relevant to the exercise of the discretion include:[15]
[15]Phillips (1985) 159 CLR 45, 53, approving the judgment of Smith J in R v Brown [1960] VR 382, 398.
(i) The prejudicial effect on the defence of questions relating to the accused’s criminal record needs to be weighed against such damage as the Court might think had been done to the Crown case by the imputations against the Crown witness.
(ii) On the issue of credibility, it might be unfair to the Crown to leave the Crown witness under an imputation while preventing the Crown from bringing out the accused’s record.
(iii) The actual prejudicial effect of the cross-examination, if allowed, might far exceed its legitimate evidentiary effect upon credit.
(f) The fact that the very nature of the defence necessarily involves an imputation against a prosecution witness is a valid consideration to be weighed in the scales when considering the exercise of the discretion.[16]
(g) Where evidence of an accused’s bad character or previous convictions becomes admissible, it is necessary for the trial judge to direct the jury that the evidence can only be used in assessing the accused’s credibility and cannot be accepted as persuasive of his or her guilt of the offence charged. Notwithstanding such a direction, the admission of such evidence may, in the absence of countervailing considerations, operate unfairly to the accused’s prejudice.[17]
(h) Where the accused has prior convictions for dishonesty but not for offences of the type with which he or she has been charged, his or her record of dishonesty would not be expected to evince any propensity to commit the offence with which he or she is charged. In such a case, with appropriate directions to the jury as to the use to be made of the evidence of the criminal record, there is no reason to anticipate any prejudice accruing to the accused such as would outweigh the effect on the prosecution case of the imputations against the Crown witnesses and render the result unfair.[18]
[16]Phillips (1985) 159 CLR 45, 57.
[17]Phillips (1985) 159 CLR 45, 57-8.
[18]Phillips (1985) 159 CLR 45, 59.
Although Deane J dissented in the result of the appeal, his Honour made a number of observations which were consistent with the majority judgment. Of particular relevance are the following:
(a) Where the accused’s criminal record is a serious one, a consideration that will always be relevant and which will commonly provide the proper starting point to the exercise of the discretion is the likelihood that proof, by cross-examination to credit, of an accused’s serious criminal record will introduce a substantial risk of unfair prejudice. Regardless of the care with which the trial judge may direct the jury that evidence of the accused’s serious criminal record cannot be used as positive evidence for the purpose of proving guilt – whether by suggesting propensity or otherwise – the risk will remain that the influence upon the jury of such evidence will, at least subconsciously, extend beyond the strictly limited purposes for which such evidence can ordinarily be properly used. In that event, the actual prejudicial effect of the cross-examination might far exceed its legitimate evidentiary effect upon credit.[19]
[19]Phillips (1985) 159 CLR 45, 63.
(b) Cross-examination of an accused to credit should only be permitted in a case where, from the viewpoint of the interests of justice – including the need to ensure that the particular trial is a fair one – any risk of unfair prejudice to the accused is outweighed, in the overall circumstances of the case, by other relevant considerations. Those other considerations will ordinarily include the extent and the nature of any damage done to the Crown case by the imputations and the circumstances in which any relevant imputations on the character of the Crown witnesses came to be made.[20]
(c) It is likely to be more readily apparent that the objective of securing a fair trial from the point of view of both accused and prosecution requires that cross-examination to credit of a witness be permitted in a case where the evidence of the particular Crown witness is in conflict with the actual evidence of the accused than in a case where no such conflict exists. In the former case, cross-examination to credit of the accused may well be necessary to avoid the false impression that the conflict of evidence falls to be resolved on the basis that the witness is a person of bad character while the accused is a person whose character is not suggested to be other than unblemished. In the latter case, the considerations favouring the permitting of such cross-examination are likely to be less cogent since evidence of the bad character of the accused will not be directly relevant to the question whether the evidence of the particular witness should be accepted.[21]
(d) It is relevant to the exercise of the discretion in pursuance of the overall objective of ensuring a fair trial that any imputation on the character of a witness for the prosecution was made only as a necessary ingredient of presenting the case for the defence. In following the ‘guiding star’ of fairness, that circumstance will inevitably be a valid and cogent factor militating against the grant of permission for cross-examination of the accused to credit.[22]
[20]Phillips (1985) 159 CLR 45, 63.
[21]Phillips (1985) 159 CLR 45, 64.
[22]Phillips (1985) 159 CLR 45, 65.
Authorities on s 104 of the Evidence Act 2008
Sections 103 and 104 of the Act were considered by the New South Wales Court of Criminal Appeal in R v El-Azzi.[23] That Court held that the principles set out in Phillips continue to apply under the Act.
[23][2004] NSWCCA 455 (16 December 2004) (‘El-Azzi’).
Sperling J (with whom Santow JA agreed) said that the provisions of s 15(2) of the Evidence Act 1997 (Qld) that were considered in Phillips were, in relevant respects, substantially the same as s 104 of the Act.[24] His Honour stated:
that the essential question was one of fairness, that the prospect of prejudice to the accused was a critical consideration and that the exceptional circumstance which permitted an accused’s criminal history to be admitted into evidence was itself a relevant consideration.[25]
[24]El-Azzi [2004] NSWCCA 455 (16 December 2004) [260].
[25]El-Azzi [2004] NSWCCA 455 (16 December 2004) [269].
Simpson J (with whom Santow JA agreed) stated:
the common law resistance to allowing evidence of prior criminal history is still relevant in guiding the exercise of the s 104(2) discretion…
…
In the ordinary course, it would seem to me that the danger of unfair prejudice created by evidence of a serious criminal conviction would
substantially outweigh its probative value.[26] However, that assessment has to be made in the light of the fairness considerations. I emphasise that it would not be every case where an attack is made upon the credibility of the Crown witnesses that would warrant the exercise of the 104(2) discretion to grant leave to cross-examine in relation to such a serious matter. Caution would have to be exercised in assessing overall fairness, and in the balancing exercises. Legal representatives of persons charged with serious criminal offences must have substantial flexibility in their approach to cross-examining prosecution witnesses, without fear that attacks on those witnesses, if made within proper limits, will expose their clients to the potential disclosure of their criminal histories, or alternatively, operate as a disincentive to their exercising the option to give evidence.[27]
Application of the provisions of the Evidence Act 2008 to the present case
[26]At the time that El-Azzi was decided, s 103(1) of the Act provided that the confidentiality rule ‘does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value’.
[27]El-Azzi [2004] NSWCCA 455 (16 December 2004) [199]-[200] (citations omitted).
I will now apply the provisions of the Act to the present case.
XYZ’s prior offences
XYZ has been convicted or found guilty of the following offences:
(1) Possess cannabis (15 October 2002; 27 May 2004; 26 July 2005; 11 March 2010).
(2) Cultivate narcotic plant – cannabis (15 October 2002).
(3) Use cannabis (15 October 2002; 26 July 2005; 11 March 2010).
(4) Drive whilst authorisation suspended (15 October 2002; 9 October 2003; 26 July 2005; 18 October 2005; 11 March 2010).
(5) Handle/receive/dispose of stolen goods (11 April 2003).
(6) Obtain property by deception (11 April 2003).
(7) Theft (11 April 2003).
(8) Fail to answer bail (9 October 2003; 26 July 2005; 18 October 2005; 1 May 2008; 11 March 2010).
(9) Possess heroin (27 May 2004; 26 July 2005; 18 October 2005).
(10) Carry prohibited weapon without exemption or approval (10 September 2004).
(11) Carry controlled weapon without excuse (10 September 2004).
(12) Theft from shop (26 July 2005).
(13) Traffic heroin (26 July 2005).
(14) Possess unnamed drug of dependence (26 July 2005).
(15) Drive motor vehicle – impaired by drug (26 July 2005).
(16) Drive under the influence of drug (26 July 2005).
(17) Ineffective head, tail, number plate lights (26 July 2005).
(18) Fail to stop before stop line – traffic light (26 July 2005).
(19) Fail to drive vehicle within marked lane (26 July 2005).
(20) Use vehicle – not comply with registration standard (26 July 2005).
(21) Drive at speed over speed limit (26 July 2005).
(22) Use vehicle – not safe/not roadworthy (26 July 2005; 11 March 2010).
(23) Deal with property suspected of being proceeds of crime (26 July 2005).
(24) Possession of equipment – manufacturing drug of dependence to traffic (26 July 2005).
(25) Exceeding prescribed concentration for 3 hours – breath (18 October 2005).
(26) Use unregistered motor vehicle on highway (18 October 2005).
(27) Drive whilst disqualified (31 October 2006; 11 March 2010).
(28) Fraudulently use registration label or plate (31 October 2006; 1 May 2008).
(29) Intentionally cause injury (20 December 2007).
(30) Breach intervention order (20 December 2007, 11 March 2010).
(31) Make threat to kill (25 February 2008).
(32) Own unregistered vehicle used on highway (1 May 2008).
(33) Failure to comply with intensive correction order (11 March 2010).
(34) Unlicensed driving (11 March 2010).
(35) Reckless conduct endangering life (11 March 2010).
(36) Recklessly causing serious injury (11 March 2010).
(37) Intentionally damage property (11 March 2010).
(38) Unlawful assault (11 March 2010).
(39) Refuse to accompany to station for blood test (11 March 2010).
(40) Have prescribed concentration 3 hour – breath – drive vehicle (11 March 2010).
(41) Possess amphetamine (11 March 2010).
(42) Possess drug of dependence – prescription drug (11 March 2010).
(43) Possess anything without authorisation – police gaol (11 March 2010).
(44) Possess controlled weapon without excuse (11 March 2010).
(45) Criminal damage (intent damage/destroy) (11 March 2010).
(46) Drive in a manner dangerous (11 March 2010).
(47) Enter intersection – red traffic light (11 March 2010).
(48) Use unregistered motor vehicle on highway (11 March 2010).
(49) Use hand held phone whilst driving (11 March 2010).
(50) Remove defective label – not authorised (11 March 2010).
(51) Fail to notify corp change name/address (11 March 2010).
(52) Fail to switch off engine (11 March 2010).
(53) Drunk in a public place (11 March 2010).
(54) Careless driving (11 March 2010).
(55) Fail to give name/address – property damaged (11 March 2010).
(56) Fail to stop vehicle after an accident (11 March 2010).
(57) Exceed signed speed limit – 80 kph (11 March 2010).
XYZ’s offences fall in the following broad categories:
(a) Use of drugs;
(b) Other drug offences;
(c) Road traffic and motor vehicle offences;
(d) Breach of court orders or bail conditions;
(e) Offences involving actual or threatened violence;
(f) Damage to property;
(g) Dishonesty offences;
(h) Weapons offences;
(i) Dealing with property suspected of being the proceeds of crime;
(j) Possess anything without authorisation – police gaol;
(k) Fail to provide name and address when required by law; and
(l) Drunk in a public place.
The Accused’s prior offences
The Accused has been convicted or found guilty of the following offences:
(1) Drive recklessly/speed/dangerous (27 November 1997).
(2) Unlicensed driving (27 November 1997).
(3) Traffick heroin (7 March 2000).
(4) Recklessly cause injury (26 April 2001).
(5) Cultivate narcotic plant – cannabis (30 April 2002; 15 August 2006).
(6) Use cannabis (30 April 2002; 5 May 2005; 8 January 2008).
(7) Possess cannabis (30 April 2002; 5 May 2005; 8 January 2008).
(8) Fail to answer bail (30 April 2002; 18 June 2004; 8 January 2008).
(9) Theft from shop (30 April 2002; 18 June 2004).
(10) Theft (30 April 2002; 18 June 2004).
(11) State false name when requested (30 April 2002).
(12) Possess property being proceeds of crime (30 April 2002).
(13) Handle/receive/retention stolen goods (24 October 2001; 30 April 2002; 18 June 2004; 5 July 2005);
(14) Possess controlled weapon without excuse (30 April 2002; 8 January 2008).
(15) Attempt to obtain property by deception (30 April 2002; 18 June 2004; 5 July 2005).
(16) Possess a dangerous article (30 April 2002).
(17) Possess drug of dependence (not named) (15 September 2003).
(18) Use other drug of dependence (15 September 2003).
(19) Burglary (18 June 2004).
(20) Make a false document to prejudice of other (18 June 2004).
(21) Unlawful assault (18 June 2004).
(22) Drive whilst authorisation suspended (17 February 2005).
(23) Fail to give name and address to injured (17 February 2005).
(24) Fail to render assistance after accident (17 February 2005).
(25) Drive in a manner dangerous (17 February 2005).
(26) Fail to keep left of dividing line (17 February 2005).
(27) Possess article prejudicial to management of gaol (17 February 2005; 13 May 2005).
(28) Use amphetamine (5 May 2005).
(29) Deal property suspected proceeds of crime (5 May 2005).
(30) Traffic cannabis (15 August 2006).
(31) Possess heroin (8 January 2008).
(32) Possess methylamphetamine (8 January 2008).
(33) Use heroin (8 January 2008).
(34) Attempt to use methylamphetamine (8 January 2008).
The Accused’s offences fall in the following broad categories:
(a) Use or attempt to use drugs;
(b) Other drug offences;
(c) Road traffic and motor vehicle offences;
(d) Breach of bail conditions;
(e) Dishonesty offences;
(f) Weapons offences;
(g) Possess property being proceeds of crime;
(h) Possess a dangerous article;
(i) Assault;
(j) Gaol offences;
(k) Deal property suspected proceeds of crime.
In this ruling, I will refer to the offences at [29](9), (10), (11), (13), (15), (19) and (20) as ‘dishonesty offences’ and to the offences at [29](6), (18), (28) and (33) as ‘drug-use offences’.
Do XYZ’s prior dishonesty offences fall within s 104(4) of the Act?
Evidence of XYZ’s dishonesty offences satisfies the requirements of s 104(4) of the Act. Accordingly, such evidence would enliven the Court’s discretion under s 104(2) to grant leave for the Accused to be cross-examined about matters that are relevant to the assessment of his credibility, provided that the evidence is capable of substantially affecting that assessment as required by s 103(1).
The Accused’s dishonesty offences are, when considered collectively, capable of substantially affecting the assessment of the Accused’s credibility. Those offences tend to prove that the Accused knowingly or recklessly made a false representation when he was under an obligation to tell the truth and that he is not an honest person. All of the convictions for the dishonesty offences occurred within the last 11 years and are sufficiently recent to reflect upon the Accused’s current tendency to lie.
The discretionary considerations that are relevant to the Accused’s dishonesty offences for the purposes of s 104(2) of the Act are discussed at [40] to [61] below.
Do XYZ’s prior drug offences fall within s 104(4) of the Act?
Evidence of XYZ’s drug offences does not tend to prove that he has a tendency to be untruthful. Accordingly, such evidence does not fall within s 104(4)(a). Even if the evidence does so, it is not relevant solely or mainly to XYZ’s credit. That evidence goes to facts that are relevant to the facts in issue and it therefore does not fall within s 104(4)(b) of the Act.
Evidence of XYZ’s drug offences is relevant in order to explain the nature of the relationship between the Deceased, Charlie Ung, Shane Gaby and XYZ and the importance of the supply and use of drugs in that relationship. The evidence is also relevant in order to provide context for the evidence involving the Deceased’s movements and dealings with various people prior to his death. For example, the evidence provides an explanation for the unusual nocturnal meetings between relative strangers. Without the evidence of drug dealing and drug use, the jury may not understand the significance of key evidence in the case going to the facts in issue.
In addition, without the evidence of drug dealings and drug use, the jury may not fully appreciate who, other than the Accused, may have had a motive to kill the Deceased, and what that motive might be. It is an important part of the defence case that XYZ, acting alone or with another, killed the Deceased and that drugs may have been the motive for the murder.
To a certain extent, the evidence of drug dealings and drug use is also relevant to XYZ’s understanding of the criminal justice system and it will assist the jury in assessing XYZ’s evidence about his discussions and dealings with the police following his arrest in April 2008 and the making of his witness statement on 10 February 2010. The evidence is relevant to the defence case that XYZ has a strong motive to lie and to shift the blame to the Accused.
It follows from the above that if defence counsel confines the cross-examination of XYZ to his drug offences, the Court would not have the power to grant leave to the prosecution to cross-examine the Accused on any part of his criminal record.
Discretionary considerations
In the event that defence counsel cross-examines XYZ on his dishonesty offences and other prior offences, rather than confining the cross-examination to XYZ’s drug offences, the question whether an order should be made granting leave to the prosecution to cross-examine the Accused on his criminal record will depend on the matters set out in s 192 of the Act and any other matters that may be relevant to the particular evidence that is in fact adduced.
Considerations in s 192 of the Act
Cross-examination of the Accused on his criminal record is unlikely to unduly add to the length of the hearing.
The extent to which cross-examination of the Accused on his criminal record would be unfair to the Accused and the importance of that cross-examination to the prosecution case are discussed below.
As this is a criminal proceeding, I have taken into account the primary exclusionary rule in ss 102 and 104(2) and the principles set out in Phillips in relation to the exercise of discretion to permit cross-examination of the Accused on his criminal record.
The power of the Court to adjourn the hearing or to make another order is not relevant. However, as appears below, I have taken into account the Court’s power to give a direction to the jury in relation to the use to which evidence of the Accused’s criminal record may be put.
Other considerations
As stated at [2] and [3] above, the Accused can only be convicted if the jury accepts the evidence of XYZ that the Accused stabbed the Deceased. If the jury does not accept that evidence, the Accused must be acquitted. It is therefore fundamentally important that the jury knows the character and qualities of the person who is alleging that the Accused murdered the Deceased. This is particularly so in the light of the defence case that XYZ murdered the Deceased and the fact that the Crown’s case allows for the possibility that XYZ had an involvement in the death of the Deceased. The attack on XYZ’s credit is central to the defence case that he, rather than the Accused, killed the Deceased. It is neither incidental nor gratuitous.
For these reasons, defence counsel requires considerable latitude in cross-examining XYZ on his criminal record and character. Of course, the jury will need to be given a clear direction that it can only use XYZ’s criminal record in relation to his credit and cannot rely on it for the purposes of tendency reasoning in relation to his possible involvement in the death of the Deceased, particularly as regards the offence of making a threat to kill. The circumstances of that offence will need to be explained, including the fact that XYZ was discharged in relation to that offence.
While it is clear that it would be legitimate for defence counsel to extensively cross-examine XYZ on his criminal record, it is also clear that fairness and the interests of justice require that the Accused not be cross-examined on all of his prior convictions. This is because there is an unacceptable risk that, if he is, the jury will reason that the Accused and XYZ are as bad as each other and that they were both equally involved in the murder of the Deceased.
The evidence adduced thus far does not indicate that there was any link at any time between the Accused and an associate of the Deceased and XYZ, namely, Shane Gaby. The only link between the Accused and the Deceased is XYZ’s evidence that he introduced them to each other in the early hours of Sunday 17 February 2008. If the Accused is cross-examined on his drug-use offences, there is a risk that the jury will blur the relationships between the individuals and treat XYZ’s associates as the Accused’s associates. The jury might consider them all to be drug dealers and speculate that the Deceased was killed by the Accused, XYZ and possibly Shane Gaby in the course of a drug deal that had gone wrong, in circumstances where there is no evidence implicating the Accused in any drug deal involving the Deceased.
Notwithstanding a strong warning by me that the evidence is only relevant to the Accused’s credit and that the jury must not engage in such reasoning, I am not confident that such a warning will completely eradicate the risk that the jury will be influenced, at least subconsciously, by such reasoning. Accordingly, I am of the view that the prejudicial effect of the admission of all aspects of the Accused’s criminal record would dwarf any assistance that that record would provide to the jury in assessing the credibility of the Accused.
If the Accused gives evidence, the key evidentiary contest will be between the Accused and XYZ. In these circumstances, at first blush, it may seem only fair that the jury should know the character and qualities of both men. However, if that approach were adopted, the benefit to the jury of knowing about the Accused’s credit would be swamped by the overwhelming prejudice that the Accused would suffer by the jury succumbing to the impermissible reasoning that the Accused and XYZ are as bad as each other and therefore they both killed the Deceased.
This risk is magnified by the existence of the text message. That message is ambiguous and, from the Accused’s perspective, is capable of both innocuous and incriminating meanings. However, any prospect that the jury might give the Accused the benefit of the doubt in relation to the text message would be lost if the Accused’s extensive criminal record is admitted. There is a clear risk that if the jury became aware of the Accused’s extensive criminal record, the jury would use the text message as confirmation of its suspicions that the Accused and XYZ both killed the Deceased.
The above considerations provide an overwhelming case against the exercise of the discretion under s 104(2) of the Act to grant leave to the prosecution to cross-examine the Accused on all aspects of his criminal record.
The question remains as to whether the above discussion would be applicable if cross-examination on the Accused’s criminal record were confined to the dishonesty offences. In my opinion, the risks to which reference is made at [47] to [52] above would not arise if cross-examination on the Accused’s criminal record were confined to his dishonesty offences. The jury will readily understand a direction that those offences are relevant only the Accused’s credit and are not probative on the question of guilt. There is no risk of the jury adopting tendency reasoning. The jury would not reason that a person who lies is the type of person who also kills.
In my opinion, if XYZ is extensively cross-examined on all aspects of his criminal record and cross-examination of the Accused is not permitted in relation to his dishonesty offences, the trial will be unfair to the Crown because the jury will treat the Accused as having led an unblemished lifestyle. In circumstances where the credit of the indispensable Crown witness is all but destroyed by reference to his criminal record, it would be artificial and unfair to withhold from the jury evidence that casts doubt on the Accused’s honesty.
The same considerations do not apply to the Accused’s drug-use offences. Evidence of those offences – whether the offences are considered individually or collectively – is not capable of substantially affecting the jury’s assessment of the Accused’s credibility for the purposes of s 103(1) of the Act. This is because the drug-use offences, considered in the light of XYZ’s evidence that on 16 and 17 February 2008, the Accused only consumed Xanax tablets, would not be sufficient to indicate that the Accused’s prior drug use impaired his ability to perceive and remember the events of that weekend.
Even if the evidence of the Accused’s prior drug-use offences falls within s 103(1) of the Act, it is appropriate in the circumstances of this case not to exercise the discretion in s 104(2) to grant leave to the prosecution to cross-examine the Accused on those offences.
This is because, for the reasons that I have already discussed, the granting of leave to the prosecution to cross-examine the Accused on his drug-use offences would result in an unacceptable risk that the jury would reason that the Accused and XYZ are as bad as each other, that they are both involved in drugs and that they both killed the Deceased.
In my opinion, the benefit to the jury of receiving evidence about the Accused’s drug-use in assessing the Accused’s credit would be very limited. As I have stated at [55] above, the only evidence that has been adduced to date about the consumption of drugs by the Accused on 16 and 17 February 2008 is that he took some Xanax tablets. There is no evidence that he consumed any of the drugs that are the subject of the drug-use offences.
The limited benefit to the jury of evidence about the Accused’s drug-use in assessing his credit, would be significantly exceeded by the prejudice to the Accused from the jury engaging in the impermissible reasoning to which I have referred.
For the reasons set out at [36] to [38] above, the evidence of XYZ’s drug offences is an important part of the defence case. Cross-examination of XYZ on his drug offences would be for a legitimate forensic purpose and would not be either gratuitous or incidental.
Accordingly, on the basis of the current evidence and submissions of the parties, if defence counsel extensively cross-examines XYZ on all aspects of his criminal record and the Accused subsequently gives evidence, I would grant leave to the prosecution to cross-examine the Accused only on his dishonesty offences.
XYZ’s evidence about his knowledge of the caution
In the course of his cross-examination, XYZ said that he had limited knowledge and experience of the criminal justice system and that he had previously been cautioned in relation to road traffic offences and an assault. Defence counsel submitted that he should be permitted to cross-examine XYZ on his extensive criminal record in order to dispel the misleading impression that XYZ sought to convey to the jury, and that such cross-examination should not expose the Accused to cross-examination on any aspect of his criminal record.
I reject this submission. This is because there is already evidence that:
(a) on 11 March 2010, XYZ pleaded guilty and was convicted of road traffic charges and an assault charge and was sentenced to 14 months in gaol;
(b) XYZ pleaded guilty to an assault on his former partner;
(c) prior to 11 March 2010, XYZ missed a court case, a warrant was issued for his arrest, he was arrested and was remanded in custody in the Melbourne Metropolitan Remand Centre;
(d) XYZ was imprisoned in 2007;
(e) XYZ performed community service as part of an Intensive Correction Order; and
(f) XYZ said that he always pleaded guilty and that he was aware of the entitlement to a sentencing discount for pleading guilty.
This evidence provides a sufficient basis for further cross-examination of XYZ to demonstrate that he has broad experience with the criminal justice system and is familiar with the caution, and that this familiarity is not confined to road traffic offences and an assault. In other words, the defence can overcome any misleading impression that has been given by XYZ’s evidence without the need to expose his entire criminal record. Accordingly, XYZ’s evidence that he had limited experience with the criminal justice system and the caution does not alter the conclusions that are set out at [39] and [61] above.
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CERTIFICATE
I certify that this and the 25 preceding pages are a true copy of the reasons for Ruling of Kyrou J of the Supreme Court of Victoria delivered on 9 May 2012.
DATED this 9 day of May 2012.
Associate
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