Director of Public Prosecutions v McEwan, Robb and Dambitis (Ruling No 2)

[2012] VSC 170

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

Nos. 78, 79 and 112 of 2011

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN McEWAN, JAMES ROBB AND NORMUNDS DAMBITIS

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2012
DATE OF RULING:	27 April 2012
CASE MAY BE CITED AS:	DPP v McEwan, Robb & Dambitis (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 170

---

CRIMINAL LAW – Evidence – Murder trial – Accused giving evidence – Prosecutor seeking to cross-examine accused on defence response to prosecution opening served under s 183 of Criminal Procedure Act 2009- Cross-examination disallowed – Evidence Act 2008 s 137.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney SC with Ms J Condon	Solicitor for Public Prosecutions
For the First Accused (McEwan)	Mr B Cash
For the Second Accused (Robb)	Mr A Lewis	C D Traill Lawyers
For the Third Accused (Dambitis)	Mr J Toal	Michael J Gleeson & Associates

HIS HONOUR:

1. In this matter, a novel point has arisen.  Mr Tinney, who has been cross‑examining the accused Stephen McEwan, wishes to cross‑examine him about the contents of a defence response to Crown opening which was filed on 25 October 2011.  The matter is novel because, to my recollection, and indeed that of all counsel at the Bar table, as I understand it, never before has a prosecutor sought to cross‑examine an accused person on the contents of a defence opening which has been filed.

1. In this case, the defence response, which was filed on behalf of Mr McEwan, is substantially more detailed than any defence response which I have seen.  Mr Cash, who appears on behalf of Mr McEwan, has objected to the cross‑examination based on that document.  Mr Cash points out the document is one which he drafted, albeit no doubt on instructions, and that it would be unfair to cross‑examine his client on it.  Mr Lewis has made similar submissions on behalf of his client, Mr Robb.  And he has also submitted that he and his client have not had notice of the documentation, and therefore they would be denied natural justice if the document was now to be introduced at this late stage of the trial.  Those submissions are supported by Mr Toal, who appears for Mr Dambitis.

1. On the other hand, Mr Tinney has submitted that the defence response is a document which is required to be filed under s 183 of the Criminal Procedure Act, and he has drawn to my attention other provisions, including s 233 and s 237, which emphasise the importance of the defence response and the importance of that document properly reflecting the manner in which a case is going to be argued at trial.

1. I do not wish to delay the matter by at all reserving on the point, which it is a novel point and it deserves a more measured consideration than I am able to give it.  However, this trial has had some delays and I think it is better that I rule on the matter now.

1. In my view, it would be unfair to Mr McEwan if the document were to be cross‑examined and unfair in a manner which would be prejudicial under s.137 of the Evidence Act.  It would seem to me that that prejudice would not be outweighed by any possible forensic use which the prosecutor might make of it.

1. I have reached that conclusion, albeit on an ex tempore basis, for the following reasons.  The document is, of course, a document that has been drafted, not by Mr McEwan, but by his solicitor, Mr Cash.  The document does not pretend or purport to set out the whole of Mr McEwan’s case, or the evidence, which he would give, and has indeed given in the witness box.  To the extent to which there is any departure, by dint of any omission, from the document, the document is simply a summary, and any omission could well be a factor of the lawyer choosing what matters he considered at the time would be salient to include in the response and what would not.

1. Insofar as there are differences of detail, those differences, if explored in cross‑examination, would open up difficult questions involving the instructions given by a client to his solicitor, and the manner in which the solicitor understood them and then reproduced them in the document.  Those matters could trespass into areas of privilege.  While the service of the document and the filing of the document itself may, to an extent, waive privilege, I do not consider that it would entirely do so.

1. Ultimately, a criminal trial historically has been a trial which is conducted on an oral, and not on a written, basis.  Whilst, of course, we must adjust to the modern times and the requirements of modern legislation, without the benefit of any authority or precedent to support the admission of the document, I would be very reluctant to do so, given the amount of unfair prejudice which could flow to the accused, and indeed to the co‑accused, if it were used in cross‑examination.  It would be difficult to allay the prejudice, and particularly it would be difficult to explain to the jury the limitations of the requirements which dictate the preparation of such a document.  There would be, I think, an additional difficulty, and that is I would apprehend that for any cross‑examination on the document, to at least attempt to be fair, it would need to include not simply any matter of detail, which might be different to what Mr McEwan has said, but sentences and the context which surround it.  Endeavouring to cross‑examine in that way, in my view, not only would confuse the jury, but may indeed interrupt the proper flow of cross‑examination and could well lead to difficulty on either side.

1. In those circumstances, in my view, there would be unfair prejudice to the accused man Mr McEwan and to the co‑accused if he were to be cross‑examined by use of the defence response.  On the other hand, I do not consider that any legitimate forensic purpose, that could be served by it, would be sufficient to outweigh that prejudice.  Accordingly, I rule that Mr Tinney should not be entitled to cross‑examine in relation to the defence response which has been filed in this case. 

1. I emphasise that the conclusions, which I have just thus stated, have been reached on an ex tempore basis in the heat of battle in the course of cross‑examination, and I have not had the opportunity to consider them in detail.  This issue may well ultimately require better consideration, than I have been able to give it, in the future.