Director of Public Prosecutions v Polutele

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE		Not Restricted

CRIMINAL DIVISION

S CR 63 2010

DIRECTOR OF PUBLIC PROSECUTIONS

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:

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.

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.

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.

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…

CaseChat Overview and Summary

In the case before the High Court, the Director of Public Prosecutions brought charges against the defendant, Polutele, for manslaughter by an unlawful and dangerous act. The incident involved Polutele allegedly delivering a blow that rendered the deceased unconscious. The prosecution further alleged that Polutele acted in concert with a witness who was serving a prison sentence for manslaughter after entering a guilty plea. The issue central to this appeal was whether the trial judge erred in allowing Polutele to cross-examine the witness on the contents of the witness's police Record of Interview, which contained prior inconsistent statements, under sections 192(2)(a)-(e) of the Evidence Act 2008.

The court needed to determine whether the trial judge's decision to grant leave for cross-examination concerning the prior inconsistent statements in the witness's Record of Interview was correct. This involved examining whether such evidence could substantially affect the assessment of the credibility of the witness under section 102 of the Act. Additionally, the court had to assess whether the principle in Blewitt v R, which generally precludes cross-examination on prior inconsistent statements, applied to this case. Furthermore, the court considered whether the evidence from the Record of Interview should be excluded under section 137 of the Act, which pertains to second-hand hearsay admissions.

The High Court held that the trial judge did not err in allowing Polutele to cross-examine the witness on the contents of the Record of Interview. The court found that the prior inconsistent statements in the Record of Interview could substantially affect the assessment of the witness's credibility, thereby permitting the cross-examination under section 192(2)(a)-(e) of the Act. The principle in Blewitt v R was deemed inapplicable in this instance as it did not bar the cross-examination on the grounds of credibility. However, the court ruled that the evidence of second-hand hearsay admissions in the Record of Interview was excluded under section 137 of the Act. Consequently, the appeal was dismissed, affirming the decision of the trial judge.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established