Director of Public Prosecutions v McDermott (Ruling No 9)
[2016] VSC 821
•22 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG McDERMOTT |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 & 22 April 2016 |
DATE OF RULING: | 22 April 2016 |
CASE MAY BE CITED AS: | DPP v McDermott (Ruling No 9) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 821 |
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CRIMINAL LAW — Evidence — Admissibility — Witness gave inconsistent evidence within knowledge of defence counsel — Application by Crown to cross-examine witness before jury — Application by defence counsel to exclude evidence — Risk of jury speculating about propriety of defence counsel’s conduct — Parties reached compromise position — Unnecessary to determine applications — Evidence Act 2008 (Vic) ss 38, 135, 137
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr B Kissane QC with Ms E Ruddle | Office of Public Prosecutions |
For the Accused | Mr J Desmond | Doogue O’Brien George |
HER HONOUR:
The accused is charged with the murder of his former partner on 16 April 2014. Part of the Crown case, relevant to this ruling, is that the accused had been harbouring animosity toward the deceased in the weeks leading up to the killing.
On 21 April 2016, Andrew McDermott, brother of the accused, gave evidence on a voir dire inconsistent with his earlier examination-in-chief.
The Crown sought leave to pursuant to s 38(3) of the Evidence Act 2008 (Vic) (‘the Act’) to cross-examine Andrew McDermott to adduce the inconsistent testimony before the jury as relevant to the witness’s credibility.
Defence counsel, in turn, applied to have the evidence excluded pursuant to ss 135 and 137 of the Act, and the Court’s residual discretion to exclude unfair evidence as recently recognised in Haddara v The Queen.[1]
[1]Haddara v The Queen (2014) 43 VR 53 (‘Haddara’).
The background to the application is as follows.
Andrew McDermott was called by the Crown at the request of the Defence on the basis that he had been present with the accused at the Commonwealth Law Courts Building on 15 April 2014. The Defence had wanted Andrew McDermott called in order to meet adverse evidence given by another witness, Sharef Mohammed,[2] of a threat made by the accused. The Defence wished to cross-examine Andrew McDermott to adduce evidence from him that he did not hear his brother—the accused—make the threat allegedly overheard by Mr Mohammed.
[2]The substance of Mr Mohammed’s evidence is set out in R v McDermott (Ruling No 1) [55]-[59] (J Forrest J).
The Crown agreed to call Andrew McDermott despite not having a statement from him addressing the issue of the threat allegedly made by the accused on 15 April 2014. The parties reached an agreement that the Crown would call Andrew McDermott provided that the prosecutor could cross-examine him about the alleged threat. This occurred during a brief voir dire (the ‘first Andrew Mc Dermott voir dire’) in which both the Crown and the Defence had an opportunity to hear what Andrew McDermott had to say about the alleged threat. I then granted leave to the Crown to cross-examine Andrew McDermott before the jury pursuant to s 38 of the Act. Both parties therefore had the opportunity to cross-examine Andrew McDermott in the presence of the jury.
Andrew McDermott was called to give evidence before the jury shortly before lunchtime on 21 April 2016. During examination-in-chief, the prosecutor had the following exchange with him about whether he had previously seen CCTV footage showing the foyer of the Commonwealth Law Courts Building on 15 April 2014:
See, what I suggest to you is that he did do that as he was going out past the - the security entrance, that he said words to the effect of "I will slice her"?---I dunno.
All right, now but you do agree, don’t you, that he was difficult to control on this particular day?---At times, yes.
I’ll play you - have you seen video from the Federal Court about this?---No.[3]
Have you seen any video? All right. I’m just going to show you some photos first of all. …
[3]Transcript of Trial, DPP v McDermott (Supreme Court of Victoria, S CR 2014 0195, Jane Dixon J, 6 April – 26 May 2016) (Trial Transcript) 1101.
A short while later, the prosecutor again asked him whether he had previously seen the CCTV footage:
Mr McDermott, you say you hadn’t seen them - they’re obviously stills from the video, you say you haven’t seen the video?---No.[4]
[4]Trial Transcript 1102.
During cross-examination by defence counsel, on the issue of whether he had overheard the alleged threat, defence counsel asked him:
You wouldn’t lie for your brother, would you? You’ve taken an oath to tell the truth?---I’ll do anythin’ for me brother, but I would not lie for him.[5]
[5]Trial Transcript 1107.
The witness was excused and Court adjourned for lunch.
Before Court resumed, defence counsel advised the Crown and the Court that he had reviewed the transcript of Andrew McDermott’s evidence over lunchtime and was obliged to inform the Crown about a matter that was within his knowledge.
As a result of the matter being raised in court in the absence of the jury, a further voir dire took place (‘the second Andrew McDermott voir dire’):
[PROSECUTOR]: Mr McDermott, when I was questioning you before lunch, I asked you whether you’d seen the video from the Federal Court before. Do you remember I asked you that question?---Yes.
Your answer was no?---That’s correct.
Is that the case that before it was played to you in court, you’d never seen that video from the Federal Court before? ---
HER HONOUR: Are you asking - when you’re asking that question, are you asking "At any time before?"
[PROSECUTOR]: Yes, at any time before?---No, the only time I’ve seen any footage before was at the committal hearing.
So let’s just be clear. The footage that you - when I was questioning you I played all of the footage from the Federal Court and before I did that I think I showed you the stills?---Yeah, in the book, yeah.
In the book?---Yep.
Before I went to those - before I played it, I said to you they’re obviously stills from the video, you haven’t seen the video and you said "No." That’s the answer you gave, isn’t it?---That’s the answer I gave, yeah.
Now you say that you only saw it at the committal ‑ ‑ ‑ ?---At the committal.
‑ ‑ ‑ hearing and you haven’t seen it on any other occasion?
HER HONOUR: When you say at the committal hearing, do you mean in the court room at the committal hearing, or do you mean during the time the committal hearing was on, you were shown it at some stage?---I was - when - in - through the committal hearing when I was inside the court room.
Were you shown it at any other time, place or location?---(No audible response.)
Remembering that you’re on oath?---
[PROSECUTOR]: Including any parts of it - any parts of it?---Any parts of it?
Yes?---Yeah, I’ve seen parts of it.
When did you see ‑ ‑ ‑ ?---Ah, yesterday afternoon.
Well - did you take the question, "Have you seen the video before?" to mean that - not to include parts of it, did you?---That’s correct.
And so when did you see parts of it?---Ah, yesterday afternoon.
In what circumstances?---Ah, outside.
Yes, but what - outside the court?---Yes.
Yes, but did somebody play it to you?---Yes, they did.
Who was that?---Ah, [defence counsel].
The representation by Andrew McDermott that he had, in fact, seen the CCTV footage, or parts of the footage, during the committal hearing and that he had viewed it for a second time the previous day was significant for the Crown as it impacted on Andrew McDermott’s credibility as a witness.
Following the second Andrew McDermott voir dire, defence counsel’s instructions to represent the accused were terminated until such time as his client could more fully assess the situation. Fortunately, defence counsel was re-instated later that day. At that point, defence counsel applied for the exclusion of the inconsistent testimony exposed on the second Andrew McDermott voir dire in the circumstances where the Crown sought to adduce the answers in the presence of the jury in order to impeach the credit of Andrew McDermott.
Time was set aside to argue the matter in the absence of the jury on the following afternoon, with the trial proceeding with other evidence in the meantime. I invited the parties to lodge written submissions electronically in advance of the oral arguments and defence counsel did so. I attach the written outline provided by the defence as Annexure ‘A’ to this ruling and propose to treat it as illuminating the arguments advanced orally.
Having considered defence counsel’s arguments for exclusion of the evidence under ss 135 and 137 of the Act, and under the Haddara residual discretion, I indicated that, in my view, it was legitimate and proper to permit the Crown to impeach the credit of the witness by adducing the inconsistent statements made on the second Andrew McDermott voir dire.
There was nothing inherently unfair in permitting the Crown to discredit a Crown witness who had given evidence unfavourable to the Crown in circumstances where his lack of truthfulness about having seen the CCTV footage on two previous occasions cast doubt on his impartiality and willingness to give truthful evidence.
However, I was concerned that allowing the evidence to be adduced in full would result in an unfair trial if the jury were to speculate about the propriety of defence counsel’s conduct in showing Andrew McDermott the CCTV footage outside the courtroom on 20 April.
Whilst it was apparent to the Court that defence counsel had acted entirely properly, there was a risk of the jury forming a false impression from his failure to correct the record during his cross-examination of the witness. The jury could not be expected to understand the intricacies of the position that defence counsel found himself in. The prospect of an unfair trial could have arisen if the full circumstances and content of the questions and answers on the second Andrew McDermott voir dire were allowed to be adduced before the jury by the Crown.
Ultimately, without any real demur from defence counsel and the Crown, a compromise position was achieved between the parties. This occurred in light of my indication that the Crown should not be precluded from a limited use of the evidence from the second Andrew McDermott voir dire to impeach the witness.
It was agreed between the parties that the attack on the witness’s credit would not include any reference to defence counsel or the circumstances of the second viewing of the CCTV on 20 April. It was also agreed between the parties that the Crown could develop an argument in their closing address that the witness had lied about not having previously seen the CCTV footage because he was not impartial.
This arrangement meant that any risk of unfairness to the trial of the accused would be neutralised, but the Crown would not be deprived of a limited opportunity to challenge the witness’s credit arising from his inconsistent testimony.
ANNEXURE A
DPP v Craig McDermott
Submissions on behalf of the accused concerning the Andrew McDermott evidence
The defence concedes the evidence of the described ‘lie’ would be admissible as evidence of a prior inconsistent statement made by Andrew McDermott.
However application is made pursuant to section 137 of the Evidence Act to have the evidence excluded.
Unfairness is the test for exclusion for limitation on the use to be made of evidence. See, s135, 137.
The “probative value” is defined by the dictionary as being “the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue
Two steps are engaged:
(a)the first step is to identify the disputed fact in issue to which the evidence is said to be relevant, and
(b)then to consider the role that that piece of evidence, if accepted, would play in the resolution of that disputed fact: R v Mundine (2008) 182 A Crim R 302 at [33]–[34].
The Andrew McDermott evidence:
(a) at its highest is evidence of having told a lie;
(b)taking a different view it may be evidence of a mistake rather than a lie given the explanation.
If the evidence is admitted such would bet ultimately be a matter for the jury.
However, taking same at its highest, it’s a lie about not having seen the CCTV before and no more.
It impacts upon the credit of the witness Andrew McDermott. The evidence directly would touch on the question or fact as to when he first saw the video but it cannot be used, (assuming it was a lie) or cannot be converted into evidence that the threat “I’m gunna slice her” was made.
If a jury rejected the explanation for the prior inconsistent statement made by the witness, the jury would say the lie discredits his evidence on the “I’m not gunna slice her” evidence of same not being said.
However the jury could do no more than reject his evidence on that point. The rejected evidence cannot be converted into evidence that the accused did say the threat.
Accepting this, nor can it be used in a positive fashion to buttress the credit of Mohammed. To do so would be using the absence of evidence the threat was said to support an assertion by Mohammed that it was said.
The issue of the threat being said or not is an important plank in the Crown case relevant to the question of animus.
In that sense it is not an idle or peripheral issue in the trial.
The contest as to whether it was said or not ultimately rests between the witness Mohammed (and the jury accepting his evidence on the point) and if the accused gives evidence in accordance with instructions provided the threat was not said.
It is “the threat” that is the intrinsic fact in issue.
Absence of evidence from Andrew McDermott on this ‘fact in issue’ (assuming the lie and thus being discredited on his evidence about no threat being said)) should and ought not be conflated with the fact of Andrew McDermott’s credit.
Accordingly the probative value of the Andrew McDermott evidence is very low relevant to the ‘fact in issue’ (i.e. whether the threat was said by the accused). This is because even if it’s assumed to be a lie and the no threat being made evidence is rejected ... it cannot be used in a positive way as evidence of the threat having been made.
The often used example:
Witness Smith says the car was blue. But if the jury reject that evidence because the witness is discredited the jury cannot use that evidence to find the car was red.
A jury could only find the car was red if other witnesses spoke of a red car in the trial (i.e. applying it to this case - the Mohammed evidence.)
The unfairness here is:
i)The risk a jury will reason thus by having rejected the Andrew McDermott evidence it is more likely Mohammed is telling the truth is a) obviously impermissible reasoning and is b) illogical reasoning;
ii)if it cannot be used for that purpose and can only be used to discredit Andrew McDermott it cannot be visited upon the accused. It is not a lie told by the accused. However - because of the close relationship it runs the risk of being visited upon the accused.
iii)as it cannot be used against the accused on the fact in issue and cannot be used as positive evidence such a threat was made and it cannot be used to buttress Mohammed. However it runs the risk of so being impermissibly used because the ‘threat issue’ figures prominently in the trial and Crown case against the accused;
iv)the evidence taken at its highest plays no role in determining the fact in issue;
v)further unfair prejudice exists if the evidence is ruled admissible by reason of the lie the jury may reason the reluctance to disclose the playing of some of the CCTV by Counsel is somehow some inappropriate covert activity Counsel for the accused has engaged in. And that is clearly not the case.
In the premises it is submitted:
(a)there is a real risk the evidence will be misused by the jury in an unfair way;
(b) and the risk of misuse is incapable of being rectified by any direction.
Further and in the alternative should the Court rule the evidence admissible under s 137 for all the reasons identified above application is made to exclude the evidence in furtherance of the Haddara discretion. See Haddara v the Queen [2014] VSCA 100.
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