Director of Public Prosecutions v Polutele

[2011] VSC 223

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE		Not Restricted

CRIMINAL DIVISION

S CR 63 2010

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB POLUTELE

JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2011
DATE OF RULING:	5 May 2011
DATE OF REASONS:	26 May 2011
CASE MAY BE CITED AS:	DPP v Polutele
MEDIUM NEUTRAL CITATION:	[2011] VSC 223R

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CRIMINAL LAW – Evidence – Manslaughter by unlawful and dangerous act – Accused charged with delivering blow rendering deceased man unconscious – Accused alleged to have acted in concert with witness serving prison sentence for manslaughter after guilty plea – Leave granted under s 38(1)(b) of the Evidence Act 2008 (‘the Act’) to cross-examine witness with whom accused alleged to have acted in concert – Leave granted to cross examine in relation to contents of witness’s police Record of Interview as prior inconsistent statements - Section 192(2)(a)-(e) of the Act – Credibility evidence – Evidence of prior inconsistent statement which could substantially affect assessment of credibility under s 102 of the Act – Principle in Blewitt v R (1988) 62 ALJR 503 inapplicable – Evidence of Record of Interview not excluded under s 137 of the Act - Evidence of second-hand hearsay admissions in Record of Interview excluded under s 137 of the Act.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C Ryan SC	Office of Public Prosecutions
For the Accused	Mr S Langslow	Revill & Papa Lawyers

HER HONOUR:

1. Jacob Polutele is being tried for the manslaughter of Cain Aguiar by unlawful and dangerous act or acts of assault.  The prosecution case is that he acted in concert with Fostar Akoteu in the commission of the crime.  Mr Akoteu has pleaded guilty to the manslaughter of Mr Aguiar and is serving a sentence of imprisonment.  He has been called as a prosecution witness in the trial.

1. I granted leave to the prosecution to cross-examine Mr Akoteu under s 38(1)(b) of the Evidence Act 2008 in relation to the relevant events on 9 July 2009 when Mr Aguiar was allegedly assaulted. 

1. Section 38 relevantly provides:

38       Unfavourable witnesses

(1)A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—

(a)evidence given by the witness that is unfavourable to the party; or

(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c)whether the witness has, at any time, made a prior inconsistent statement.

1. I granted leave to the prosecution to question Mr Akoteu as though cross-examining him about those matters which I considered he might reasonably be supposed to have had knowledge and about which it appeared to me that he was not, in examination-in-chief, making a genuine attempt to give evidence.  Mr Akoteu claimed to have no recollection or no knowledge of the relevant events on 9 July 2009 when responding to questions under examination-in-chief.  He was incarcerated as a result of his own involvement in these events after a guilty plea.  It was not suggested by counsel for the defence that, in the circumstances, he should not reasonably be supposed to have that knowledge or that it should appear that he was making a genuine attempt to give that evidence.  I gave the prosecution leave to cross-examine him as to the relevant events of 9 July 2009 of which he claimed to have no memory or knowledge.

1. In granting leave for him to be cross-examined, I took account of the factors listed in s 192(2)(a)-(e) of the Act, as well as the submission by counsel for the defence that leave ought not be granted because the application amounted to a subterfuge by the prosecution to get into evidence Mr Akoteu’s unsworn out-of-court statements to police and was unfair and improper.

1. Whilst I rejected a submission that the bulk of an edited record of interview of Mr Akoteu’s interview with police should be excluded under s 137 of the Act on the grounds that its probative value was outweighed by the danger of unfair prejudice to Mr Polutele, I did accede to the submission that evidence of alleged admissions to Mr Akoteu by Mr Polutele should be excluded under that section.

1. I now provide my reasons for the ruling.

The prosecution case

1. It is common ground that Mr Aguiar died on 14 July 2009.  It is alleged that he died as a result of head injuries which were inflicted when he was assaulted by Jacob Polutele and Fostar Akoteu, acting in concert. 

1. The prosecution alleges that Mr Polutele participated in the assault by punching Mr Aguiar’s head, causing him to fall and hit his head on the kerb outside the Blarney Stone Irish Pub in Anderson Street, Yarraville on 9 July 2009.  It further alleges that, as he lay on the roadside unconscious, Fostar Akoteu stomped on his head or kicked it.  It is common ground that, unless the prosecution establishes that Jacob Polutele administered the blow that felled Mr Aguiar, it will not have proven its case against him. 

The record of interview

1. The prosecution alleges that Mr Akoteu made admissions to police about his own role in the assault, stating that he kicked Mr Aguiar as he lay on the ground.  Significantly, he is also alleged to have told police several times in the course of the recorded interview that it was Mr Polutele who delivered the ‘king hit’ before he, Mr Akoteu, moved in to kick the prone man.  Mr Akoteu also, however, went on to say that he had not seen the hit which knocked Mr Aguiar out and that Mr Polutele had told him that he had delivered the blow.

The Basha enquiry

1. This is the second trial.  The jury was discharged without verdict in the first.  Mr Akoteu was called in a Basha inquiry[1] before the first trial.

   [1]See R v Basha (1989) 39 A Crim R 337.

1. The tenor of his evidence during that enquiry was that he did not recollect or know or was not certain about his involvement in the alleged events in relation to which he had been convicted and sentenced to imprisonment for the crime of manslaughter of Mr Aguiar. I granted leave for the prosecution to cross-examine him under s 38(1)(b) of the Act.

1. Senior counsel for the prosecution foreshadowed that he would put the contents of Mr Polutele’s Record of Interview with police to him, as a series of prior inconsistent statements.  What he said to police, apparently from knowledge, just short of two years earlier, was said to be inconsistent with his anticipated denial that the events described occurred.  Similarly, his statements were said to be inconsistent with his anticipated denial of any memory or knowledge of them.  I agreed.

1. Counsel for the defence made no objection to the admissibility of the contents of the Record of Interview at that stage. Nevertheless, he sought the exclusion, under s 137 of the Act, of parts of the interview on grounds of fairness and mentioned alleged inaccuracies in the transcript of the interview. He and senior counsel for the prosecution were then able to produce an agreed edited tape and transcript without assistance from the Court.

Credibility evidence and prior inconsistent statements under the Act

1. Section 101A of the Act defines as ‘credibility evidence’ (inadmissible under s 102) evidence such as that of Mr Akoteu’s statement to police, which is relevant for the purpose of proving that Mr Polutele delivered the alleged blow but is not admissible for that purpose being hearsay under Part 3.2 of the Act.

1. However, s 103(1) of the Act exempts from the operation of the credibility rule evidence, adduced in cross-examination, of prior inconsistent statements which ‘could substantially affect the assessment of the credibility’ of a witness. I was satisfied that the evidence of Mr Akoteu’s admissions to police in the taped interview as to his own involvement and his description of Mr Polutele’s role in the assaults on Mr Aguiar did fall into this exempted category. In my opinion, it did tend to prove that Mr Akoteu knowingly lied under oath as to his knowledge or recollection of the relevant and very dramatic events which he had described to police and which had themselves occurred not two years earlier.

1. Counsel for the defence argued that the evidence of the statements in the Akoteu Record of Interview should be excluded as improper under the common law principle stated by the High Court in Blewitt v R.[2]  There, Mason CJ, Wilson, Brennan, Dawson and Toohey JJ said:

It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice.

[2](1988) 62 ALJR 503.

1. As s 60 of the Act allows evidence of prior inconsistent statements, admissible for the assessment of credibility, to be used as evidence of the facts stated, the principle in Blewitt had no application and the evidence would not have been excluded on that basis.

1. Under s 60 of the Act, the impugned evidence was no longer ‘inadmissible to prove acts against the accused’.[3]

   [3]Adam v R (2001) 207 CLR 96, 104-5 (Gleeson CJ, McHugh, Kirby and Hayne JJ).

The alleged admissions to Mr Akoteu

1. Nevertheless, as counsel for Mr Polutele pointed out, sub-s 60(3) provided that the evidence of his client’s alleged admissions to Mr Akoteu was not exempted from the operation of the s 59 hearsay rule because it was evidence of an alleged admission in a criminal proceeding.  Nor was it exempted from the application of the hearsay rule by s 81, because that exemption is limited to evidence of firsthand admissions under s 82.  The evidence as to Mr Akoteu’s account to police of Mr Polutele’s asserted admission to him would be second-hand hearsay.

1. In granting the leave to cross-examine, I concluded that there would not be a significant extension of the trial as a result of the foreshadowed cross-examination and the evidence was important as a highly probative account of Mr Polutele’s actions from a close eyewitness in a manslaughter trial. 

Exclusion under s 137

1. Counsel for the defence argued that the probative value of the evidence of Mr Akoteu’s account to police was relatively slight and its prejudicial effect would outweigh its probative value because:

(a)some independent witnesses who were present and not participants in the assault had stated that the blow was struck by Mr Akoteu himself;

(b)Mr Akoteu had told police in the interview that he did not see Mr Polutele punch Mr Aguiar, but rather that Mr Polutele told him the next day that he ‘king hit’ the victim; and

(c)there would be a real danger that the jury would place little weight on Mr Akoteu’s position as an accomplice and would focus on and place undue weight on the evidence of his answers in the police interview and less weight on the more credible, independent witness’s evidence that one man both king hit and kicked or stomped on Mr Aguiar.

1. I considered the evidence of Mr Akoteu’s account to be highly probative.  He admitted his immediate involvement in the assault.  He was in a relatively good position to observe Mr Polutele, being closer than other eyewitnesses whose views were at times obstructed.  He also gave his account shortly after the events described in what might be regarded by the jury as a frank manner. 

1. In so far as the reliability of the evidence was relevant to the assessment of its probative value,[4] the jury would be warned to take into account Mr Akoteu’s position as someone criminally involved who might try to minimise his own culpability.  The additional factors of him not being under oath or subject to any cross-examination by the absent accused man would also be the subject of warnings.  These warnings would also have the effect of limiting any unfair prejudice resulting from his position as an accomplice.

   [4]See R v Shamouil (2006) 66 NSWLR 228, 237, [47]-[68] and, in particular, [60] (Spigelman CJ (Simpson and Adams JJ agreeing)).

1. Overall, I was not persuaded that I was obliged to exclude the evidence of the Akoteu record of interview under s 137 of the Act.

1. I did however rule that, even if it were admissible as evidence of a prior inconsistent statement, the second hand hearsay evidence of the alleged admission by Mr Polutele to Mr Akoteu must be excluded under s 137. I considered that its unfair prejudicial effect would outweigh its probative value, as it would not be able to be used as evidence of the alleged assault under s 60. The jury would have had to use the evidence only in relation to Mr Akoteu’s credibility. This would have been a very difficult exercise and one highly likely to result in unfair prejudice significantly outweighing the probative value of the evidence.